Public Procurement and the Erosion of the EU Social Model: Outline of a Polanyian Perspective and the Emerging Regulatory Role of Human Rights

Abstract

States influence markets not just as regulators but also through their purchasing activity. However, governments are implicated in human and labour rights breaches via their purchasing relationships. Such supply chain abuses contradict basic assumptions of the European social model reflected in Europe-wide fundamental rights standards as well as domestic constitutional orders. Until now, EU procurement laws and policies exerted a ‘chilling effect’ on human rights and sustainability efforts by European public buyers. Yet a nascent movement has started to challenge orthodox reluctance to accept that the scope of rules based on competition and “efficiency”, within the EU order, should be conditioned by states’ obligations to secure respect for inalienable human rights and minimum labour standards. Public procurement thus serves as one plane for the playing out of continuing tensions between the predominantly competitive logic of international market regulation and Europe’s social and human rights values. In this chapter we seek to demonstrate this dynamic while arguing for measures to ensure a rebalancing in this ongoing contest towards protection of the European social model. Section 2 sketches the contours of public procurement law, with a focus on the EU. Section 3 highlights states’ contrasting duties to protect human rights arising under international treaties and new norms on business, human rights, supply chains and sustainability that articulate these in the procurement context. Section 4 outlines a Polanyian analysis of persisting tensions between competitive logic and human rights values in the public procurement context, an approach that, we contend, illuminates important connections between apparently specialist discussions about public procurement and human rights and today’s broader controversies about the social and political sustainability of Europe’s integrated market economy. We further illustrate how orthodox, competition-based procurement law perspectives threaten EU procurement law’s potential to advance social values in Europe is not merely technical but profoundly political and value-laden. Concluding, Section 5 advocates for the establishment of human rights as an explicit dimension within European sustainable procurement norms.