Arbetsrättsliga villkor i offentlig upphandling - Särbehandling av inhemska leverantörer samt alternativa kontraktsvillkor

Sammanfattning: This thesis studies two proposed changes in the Swedish public procurement legislation put forth by the government inquiry, "Upphandling och villkor enligt kollektivavtal". The government inquiry suggests, among other things, that it should be possible for contracting entities to require higher labor standards by domestic tenderers, than by tenderers that uses posted workers. This negative discrimination of, especially, domestic tenderers is aimed to ensure that public contracts is carried out under high labor standards and still complies with the posted workers directive (96/71/EG) which limits standards that can be required of enterprises that uses posted workers. The proposal raises, mainly, the question of if the principle of equal treatment is applicable in situations where domestic tenderers are treated unequally compered to tenderers who uses posted workers, and if so does the principle of equal treatment permits this kind of unequal treatment? It’s also of significance to examine if labor standards are of such importance that deviation from the principle is justified. Guidance can be found from the EU-court, which dictates that the principle of equal treatment is, even when domestic tenderers are treated unequally, applicable. Domestic tenderers and those who use posted workers are considered to be in a comparable situation and therefor, in accordance with the principle of equal treatment they should be treated equally. Good working conditions is an acknowledged and prioritized subject in EU-law but there are limitations on how extensive requirements that can be demanded, which the inquiry’s proposal exceeds. Finally, it has to be noted that the governments inquiry suggestion is problematic, since it fails to achieve its purpose and therefore cannot be considered a proportional measure. The inquiry’s second suggestion regards the possibility of using alternative special conditions where the tenderer is given the option of fulfilling specific condition in the contract document or correlating conditions in a collective agreement. Tenderers must, on their own, identify applicable contracts and the minimum standards in those contracts. This brings up questions about transparency and non-discrimination. The government inquiry proposal makes it complicated for tenderers to ascertain a clear picture of under which conditions the public contract can be carried out under. This makes it difficult for tenderers to create a competitive tender. The effort needed to identify which collective agreement and minimum standards that are applicable is so demanding that tenderers, especially foreign tenderers, are discouraged from making a tender. The proposal puts such a great burden on tenderers that it constitutes a breach of the principle of transparency. The burden has to be considered greater and more discouraging for foreign tenderers, why the proposal also is indirectly discriminatory against these, and therefore does not comply with the principle of non-discrimination.