Lønklausuler i offentlige udbudskontrakter

Assia Claudia Mundus Markmann

Student thesis: Master thesis


This thesis is about how the EU should regulate wage clauses in public procurement contracts so their social objectives and efficiency, in a teleological sense, are ensured. In order to find this out, I examine how they affect price competition and what the current legal framework for the use of wage clauses are. Firstly, I find that in the current legal framework it is only possible for the authorities to use wage clauses that refer to minimum wage in accordance with the posted workers directive. This type of wage clause does not secure the objective of wage clauses; the protection of workers and the hindrance of social dumping and unfair competition. Also, I find that the use of ILO convention no. 94 on labour clauses in public contracts is not in accordance with EU law. In the economic part of the thesis, the effect of wage clauses on price competition is examined. By comparing minimum wage clauses with the posted workers directive, it became clear that the part of the wage where there is competition is the difference between minimum wage and real wage, denoted X. This, however, is not because of minimum wage clauses but because of the posted workers directive. By examining real wage clauses I conclude that real wage clauses eliminate a great part of the price competition between national and foreign companies. Finally, I discuss whether real wage can ensure efficiency from a teleological interpretation of the public procurement directive, the posted workers directive and the Lisbon Treaty. If real wage clauses can ensure the purposes of the legislation, then the use of them is efficient. I hereby conclude that the use of real wage clauses should be allowed in public procurement contracts because they can ensure the purpose of the posted workers directive and the Lisbon Treaty. As a result of these conclusions I suggest that the EU allow the use of wage clauses by explicitly mentioning them in the public procurement directive and make sure that the posted workers directive allows member states to impose more favourable terms and conditions than the minimum conditions laid down in the hard nucleus in the posted workers directive.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2012
Number of pages100