Lagförslag om villkor enligt kollektivavtal i offentliga upphandlingar – Förenligt med unionsrätten?

Sammanfattning: Swedish authorities procured in 2012 for billions of USD. Utilizing public procurement as a way to streamline the use of tax revenue by reaching societal goals such as fair working conditions is no longer as controversial as it previously was. The new public procurement directive 2014/24/EU opens up even more than before for the opportunity to take social and labor considerations in public procurement, even when those conditions derive from collective agreements. Due to this directive the Swedish government submitted to the Swedish Parliament a government bill, prop. 2015/16:195, that suggests regulations where authorities in procurement contracts must include specific conditions that derive from central collective agreements. Reactions to the bill have been mixed. Some have argued that the proposal is not compatible with EU law, while others have claimed that the government's interpretation of the directive is too broad. In the light of this, this paper aims to find out if the critics were right. The purpose of this paper is to find out whether the government bill is compatible with EU law by examining the legal and political considerations made by the Swedish government when developing the bill, and to study the political discourse in Sweden and the role of collective agreements in public procurement regulations in the Nordic countries. To do this, the intention of this paper was to understand the EU law, the Swedish labor market, the considerations made from a Swedish point of view to ensure that the bill is compatible with EU law and to understand how the discourse went on in Sweden and how collective agreements have been integrated in public procurement in our neighboring Nordic countries. Focus of this paper is to examine the provisions in the proposal regarding specific contractual conditions. This paper concludes that the EU law (the Treaties, the Charter, the legal principles and the directives) set the framework for how far-reaching the conditions in public procurement can be. The Swedish labor market model does likewise. The result reached in this paper is that trade unions have advocated rules that reach far, while the business sector has argued that the proposal is too far-reaching and hinders competition. The government bill on regulations regarding conditions in accordance with collective agreement did not pass in the parliament since the opposition parties outvoted it. Thus, this is also a partisan issue. The conclusion of this is that the bill is well-motivated and that the government consistently has ensured that the provisions are compatible with EU law. The remarks that I can be made is that the proposal may be incompatible with the underlying purposes of the directive, such as trying to make the rules simpler, and to facilitate the participation in public procurement for smaller business. However, compared to how our neighboring Nordic countries has regulated the issue regarding the role of the collective agreement in public procurement, Sweden has taken a more cautious approach in implementing the directive and has maybe not fully used the opportunity to take social considerations that EU law provides.