'British jobs for British workers': The Lindsey oil refinery dispute and the future of local labour clauses in an integrated EU market

Industrial Law Journal

Volumn 38, Issue 3, 2009, Pages 245-277

  Barnard, Catherine ^a  

^a TRINITY COLLEGE   (United Kingdom)

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EID: 70049092640     PISSN: 03059332     EISSN: 14643669     Source Type: Journal    
DOI: 10.1093/indlaw/dwp013     Document Type: Article

References (189)

1. Case C-438/05, Viking [2008] IRLR 14;
2. Case C-341/05, Laval [2008] IRLR 160;
3. Case C-346/06, Rüffert [2008] IRLR 467;
4. and Case C-319/06, Commission v Luxembourg [2000] IRLR 388 (noted by A. Davies (2008) 37 ILJ 125 (Viking and Laval), P. Davies (2008) 37 ILJ 293 and C. Barnard (2009) 38 ILJ 122, respectively).
5. Viking, para 79
6. and Laval, para 105.
7. http://www.total.com/en/press/press_releases/pr_2007/ 070704-lindsey-oil-refinery-uk_12882.htm (accessed 26 June 2009).
8. 'Refinery picketed for third day', http://news.bbc.co.uk/2/hi/uk_news/england/humber/7859800.stm (accessed 30 January 2009).
9. According to the ECIA website (http://www.ecia.co.uk), the NAECI (blue book) sets terms and conditions of employment for hourly paid engineering construction workers on major engineering construction projects and repair and maintenance sites throughout the UK. The signatories to the NAECI are ECIA, TICA (the Thermal Insulation Contractors' Association) and SELECT (the Electrical Contractors' Association of Scotland) for the employers, and Unite the Union (Amicus and T&G Sections) and GMB for the trade unions. Together, the signatory parties form the National Joint Council for the Engineering Construction Industry, which oversees the operation of the NAECI and undertakes periodic reviews of rates and other terms and conditions.
10. The 2007-10 agreement can be found at http://www.njceci.co.uk/assets/ downloads/NAECI%2020072010%20Final%20Printed%20Edition.pdf.
11. 'Refinery strikes spread across the UK', http://news.bbc.co.uk/2/hi/ uk↗ws/7859968.stm (accessed 30 January 2009). At the peak of the strike, the foreign workers were held on their fl oating accommodation for their own safety in Grimsby docks: 'Foreign workers held "for safety"', http://news.bbc.co.uk/2/hi/uk_news/england/humber/ 7861560.stm (accessed 30 January 2009).
12. Report of an Inquiry into the Circumstances Surrounding the Lindsey Oil Refinery Dispute ('Report'), para 4, ACAS, http://www.acas.org.uk/CHttpHandler.ashx?id=1019&p=0.
13. According to the ACAS report, if locally sourced workers were to be employed, IREM indicated that they would only be used on less skilled work or where the work involved servicing mainstream operations.
14. 'Mass walkout over foreign labour', http://news.bbc.co.uk/2/hi/ uk_news/england/humber/7855752.stm (accessed 28 January 2009).
15. 'Hundreds join refineries walk-out', http://news.bbc.co.uk/2/hi/ uk_news/england/humber/7857996.stm (accessed 29 January 2009).
16. See 'Refinery picketed for third day', above n. 4.
17. 'Protest over foreign labour', http://news.bbc.co.uk/2/hi/uk_news/ england/tees/7860032.stm (accessed 30 January 2009).
18. 'Power station staff join protest', http://news.bbc.co.uk/2/hi/ uk_news/england/merseyside/7860394.stm (accessed 30 January 2009).
19. 'Power plant staff stage walkout', http://news.bbc.co.uk/2/hi/uk_news/ scotland/edinburgh_and_east/7858271.stm (accessed 29 January 2009).
20. http://www.timesonline.co.uk/tol/news/politics/article5645406 ece (accessed 3 February 2009).
21. http://news.bbc.co.uk/1/hi/scotland/tayside_and_central/7860001.stm.
22. Using its powers under s 214 TULR(C)A, which says: (1) ACAS may, if it thinks fit, inquire into any question relating to industrial relations generally or to industrial relations in any particular industry or in any particular undertaking or part of an undertaking. (2) The findings of an inquiry under this section, together with any advice given by ACAS in connection with those findings, may be published by ACAS if - (a) it appears to ACAS that publication is desirable for the improvement of industrial relations, either generally or in relation to the specific question inquired into, and (b) after sending a draft of the findings to all parties appearing to be concerned and taking account of their views, it thinks fit.
23. ACAS Report, see above n. 8.
24. 'Foreign labour row "deal reached"', http://news.bbc.co.uk/1/hi/uk/ 7868777.stm (accessed 4 February 2009).
25. ACAS thinks the number of new jobs on offer was 101 but Unite confi rms the fi gure is 102, although the GMB subsequently talked of 105 (http://www.gmb.org.uk/Templates/PressItems.asp?NodeID=98719, accessed 26 June 2009). However, since nothing was in writing, it is difficult to verify the final number. Under art 4(2) of Reg 1612/68 (OJ/SE L257/2, p 475) on the free movement of workers, 'When in a Member State the granting of any benefit to undertakings is subject to a minimum percentage of national workers being employed, nationals of the other Member States shall be counted as national workers'.
26. http://www.gmb.org.uk/Templates/PressItems.asp?NodeID=98719. The GMB representative said that local shop stewards have been active in ensuring that these jobs were 'real' jobs, not paper jobs, and that there were suitably qualifi ed local people capable of doing the jobs.
27. http://www.gmb.org.uk/Templates/PressItems.asp?NodeID=98719.
28. See 'Foreign labour row', above n. 20.
29. See above n. 23.
30. 'GMB accuse senior managers of provoking the unofficial dispute at Lindsey by the layoff of original 51 workers in breach of agreements', http://www.gmb.org.uk/Templates/PressItems.asp?NodeID=98719.
31. 'Fresh walkout over refi nery jobs', http://news.bbc.co.uk/1/hi/england/ humber/8095182.stm (accessed 11 June 2009).
32. http://news.bbc.co.uk/1/hi/england/humber/8108434.stm.
33. Refinery jobs walkout talks fail', http://news.bbc.co.uk/1/hi/england/ humber/8100786.stm (accessed 15 June 2009).
34. 'Almost 650 dismissed at refinery', http://news.bbc.co.uk/1/hi/england/ humber/8108434.stm (accessed 19 June 2009).
35. See above n. 28.
36. Refinery jobs walkout continues', http://news.bbc.co.uk/1/hi/england/ humber/8096900.stm (accessed 12 June 2009).
37. The unions' concerns have been exacerbated since the revelations in March 2009 about a company in the construction industry, The Consulting Association, keeping and selling personal information, including union activities, on those working in the construction industry. The owner of the company was successfully prosecuted by the Information Commissioner's office for breach of data protection legislation: 'Firm "sold workers' secret data"', http://news.bbc.co.uk/1/hi/uk/ 7927487.stm (accessed 6 July 2009).
38. 'Sacked oil workers burn letters', http://news.bbc.co.uk/1/hi/uk/ 8112975.stm (accessed 22 June 2009).
39. See eg 'Refinery sackings spark walkouts', http://news.bbc.co.uk/1/hi/uk/ 8111648.stm (accessed 22 June 2009);
40. 'Walkout at second power station', http://news.bbc.co.uk/1/hi/scotland/ edinburgh_and_east/8113679.stm (accessed 23 June 2009).
41. 'Workers continue wildcat strike', http://news.bbc.co.uk/1/hi/scotland/ edinburgh_and_east/8116153.stm (accessed 24 June 2009).
42. 'Deal reached in oil refinery row', http://news.bbc.co.uk/1/hi/uk/ 8120076.stm (accessed 26 June 2009).
43. 'Lindsey workers vote to return to work', http://www.unitetheunion.com/ news_events/latest_news/lindsey_workers_vote_to_return.aspx (accessed 29 June 2009). The website reports that 'The agreement also means a Unite official has been appointed to represent Lindsey workers on a full-time basis until the end of the project. He will be based at the refinery.'
44. Ibid.
45. ACAS Report, para 12.
46. Ibid.
47. Case C-113/89, Rush Portuguesa v Office Nationale d'Immigration [1990] ECR I-1417.
48. ACAS Report, para 9.
49. See also clause 6 of the Supplementary Project Agreement, accompanying the NAECI, requiring that consideration would be given to the use of suitably qualified local labour.
50. http://www.theyworkforyou.com/debates/?id=2009-02-04b.835.7.
51. ECIA, Guiding Principles for Companies, para 4.0, GUIDING%20PRINCIPLES%20FOR%20COMPANIES-ECIA.pdf.
52. 'The refinery dispute's lasting effects', http://news.bbc.co.uk/2/hi/ business/7872932.stm (accessed 5 February 2009).
53. See eg the wildcat strikes, also involving some of the Lindsey workers, in respect of the hiring of mainly Polish labour at the South Hook natural gas site in Wales, allegedly in breach of the agreement to give work to local labour: 'Immigration call after LNG strike', http://news.bbc.co.uk/1/hi/wales/wales_politics/8059162.stm (accessed 20 May 2009)
54. 'Second day of labour row walkout', http://news.bbc.co.uk/1/hi/england/ humber/8058822.stm (accessed 20 May 2009);
55. 'More walkouts over foreign staff', http://news.bbc.co.uk/1/hi/wales/ 8058811.stm (accessed 20 May 2009).
56. 'Demos at Kent & Nottinghamshire power station construction sites over use of EU Posted Workers Directive to ban UK workers from these sites', http://www.gmb.org.uk/Templates/Internal.asp?NodeID=98166: 'The next steps in the GMB campaign to stop UK workers being denied work on UK engineering construction sites, which gave rise to the dispute at Lindsey Oil Refinery, will be further demonstrations at two sites where UK workers are being denied work. There will also be a lobby of Parliament and a national meeting of industry Shop Stewards from GMB and Unite.'
57. 'Unite's power station protests', http://www.amicustheunion.org/ Default.aspx?page=10014 (accessed 10 February 2009).
58. http://www.gmb.org.uk/Templates/Internal.asp?NodeID=98166.
59. 'Demos at Kent and Nottinghamshire Power station construction sites over use of EU Posted Workers': http://www.gmb.org.uk/Templates/ Internal.asp?NodeID=98166.
60. Case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV [2008] IRLR 732, para 25.
61. One of the questionnaires sent to the various contractors and sub-contractors at the Isle of Grain site alleges that at the PJC meeting held on 10 December 2008, at which 'your site manager was present, questions were asked by the trade unions about whether you would be using existing labour on the contract, or whether you would be recruiting new labour. Your site manager gave very evasive answers to this question. A further question was asked about whether you would be undertaking any recruitment within the UK. Your site manager was non-committal, but advised that if you were to consider employing any UK labour, those individuals would have to travel to Warsaw for one week at their own expense to take a trade test. Although objections were raised concerning the fact that the NARIC system (a government agency system that effectively compares broadly equivalent qualifi cations to ensure that they are comparable) could be used to ensure the UK qualifications were comparable and satisfactory, you refused to alter your position on this issue at the time or subsequently.'
62. Cf the now repealed Sched 11 EPA 1975.
63. See eg Laval, above n. 1, paras 66-70.
64. Report, para 19.
65. Report, para 21.
66. See also Report, para 22.
67. Case C-281/98 Angonese [2000] ECR I-4139.
68. Case 36/74 [1974] ECR 1405, dispositif: 'the rule on non-discrimination applies in judging all legal relationships in so far as these relationships, by reason either of the place they are entered into or the place where they take effect, can be located within the territory of the Community' (emphasis added).
69. See, eg the Home Office in Case 41/74, Van Duyn [1974] ECR 1337
70. and local authorities in Case 197/84, Steinhauser v Ville de Biarritz [1985] ECR 1819
71. and Case C-168/91, Konstantinidis v Stadt Altensteig-Standesamt [1993] ECR I-1191.
72. For example, the Bar Council (Case 71/76, Thieffry v Conseil de l'ordre des avocats à la cour de Paris [1977] ECR 765;
73. Case C-309/99, Wouters [2002] ECR I-1577, para 120)
74. and football associations (Case 13/76 Donà [1976] ECR 1333;
75. Case C-415/93, Bosman [1995] ECR I-4921).
76. See the decisions in Viking and Laval above n. 1.
77. For further discussion, see K. Lackhoff and H. Nyssens, 'Direct Effect of Directives in Triangular Situations' (1998) 23 ELRev. 397;
78. M. Dougan, 'Community Directives: Explaining CIA Security' (2001) 60 CLJ 231.
79. See eg Case C-194/94, CIA Security International SA v Signalson SA and Securitel SPRL [1996] ECR I-2201.
80. Case 441/93 [1996] ECR I-1347.
81. Report, para 11.
82. Report, para 10.
83. Report, para 23.
84. http://www.acas.org.uk/index.aspx?articleid=2146 (accessed 16 February 2009).
85. 'ACAS backs refinery dispute firm', http://news.bbc.co.uk/2/hi/uk_news/7892656.stm (accessed 16 February 2009).
86. See eg D. Wooding, 'Strikers wrong on migrants', The Sun, 17 February 2009: 'Union chiefs used false claims to whip up a storm over foreign workers, a report has found. They condoned wildcat strikes by insisting bosses had drafted in migrants because they were cheaper than Brits. But a report by industrial peacemaker Acas yesterday ruled oil giant Total acted lawfully in hiring Italians and Portuguese at the Lindsey refinery in Lincolnshire.'
87. 'Acas inquiry into the recent unofficial action: "The law wasn't broken the law was wrong"', http://www.unitetheunion.com/ news_events/latest_news/acas_inquiry_into_the_recent_u.aspx.
88. http://www.tuc.org.uk/law/tuc-15979-f0.cfm (accessed 16 February 2009).
89. The GMB argues that the Labour government is reneging on a manifesto commitment: 'the manner in which the EU 1996 Posted Workers Directive was applied into UK law in 1999 was botched. The Labour Party recognised this in 2004 at Warwick and made a manifesto commitment to apply Article 3(8) properly into UK law. That commitment, which was repeated at Warwick in 2008, has not been honoured.' (http://www.gmb.org.uk/ Templates/Internal.asp?NodeID=98166).
90. Unite's statement on the Lindsey Oil Refinery dispute: http://www.amicustheunion.org/Default.aspx?page=9990 (accessed 4 February 2009).
91. See eg their 'Laval, Viking, Rüffert, Luxembourg: Fight Against Social Dumping Petition' which gives a taste of this opposition: Http://www.amicustheunion.org/lavalvikingruffert/.
92. See also 'Power to the Workers' http://www.ier.org.uk/: 'If we are to avoid serious problems of the kind that we now see in Lincolnshire, the government needs to get its weight behind an ETUC proposal for a protocol with a view to amending the EU Treaty, to make it clear that the constitutional rights of business must not always have priority over the subordinated interests of workers.'
93. http://conservativehome.blogs.com/parliament/2009/02/ bill-cash-wants.html.
94. Michael Ancram, John Redwood, Peter Lilley, Graham Brady, Christopher Chope, Bernard Jenkin, Philip Davies, Nigel Evans and David Heathcoat-Amory.
95. http://www.publications.parliament.uk/pa/cm200809/cmbills/053/ 2009053.pdf (last accessed 29 June 2009).
96. http://services.parliament.uk/bills/2008-09/employmentrights.html.
97. Case C-265/95, Commission v France (Spanish strawberries) [1997] ECR I-6959 but cf Council Reg. (EC) No. 2679/98 on the functioning of the internal market in relation to the free movement of goods among the Member States ([1998] OJ L337/8).
98. Cf s 237 TULR(C)A 1992.
99. For a discussion about the future of the relationship between labour law and public procurement, see S. Arrowsmith and P. Kunzlik, 'Editors' Note - the Decision in Rüffert v Land Niedersachsen' in S. Arrowsmith and P. Kunzlik (eds.) Social and Environmental Policies in EC Procurement Law (Cambridge: CUP, 2009).
100. The quotation comes from a longer passage which said: 'As we set out on the next stage of our journey this is our vision: Britain leading the global economy - by our skills and creativity, by our enterprise and flexibility, by our investment in transport and infrastructure - a world leader in science; a world leader in financial and business services; a world leader in energy and the environment from nuclear to renewables; a world leader in the creative industries; and yes - modern manufacturing too - drawing on the talents of all to create British jobs for British workers.' http://news.bbc.co.uk/1/hi/uk∝litics/7010664.stm.
101. Full details can be found at http://ec.europa.eu/internal_market/ publicprocurement/index_en.htm.
102. [2004] OJ L134/1.
103. [2004] OJ L134/114.
104. Directive 2007/66/EC [2007] OJ L335/31 amending Council Directives 89/ 665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (to be implemented by Member States into national law before 20 December 2009); Directive 92/13/EEC [1992] OJ L76/14 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors; and Council Directive 89/665/EEC [1989] OJ L395/33 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts.
105. The thresholds are set out in art 7 of Dir. 2004/18.
106. See eg Case C-264/03, Commission v France [2005] ECR I-8831, para 33;
107. Case C-6/05, Medipac-Kazantzidis AE v Venizelio-Pananio (PE.S.Y KRITIS) [2007] ECR I-4557, paras 32-3;
108. Joined Cases C-147/06 and C-148/06, SECAP SpA v Comune di Torino [2008] ECR I-3565, para 20.
109. Case C-507/03, Commission v Ireland [2007] ECR I-9777, para 34.
110. This has the potential to save some tendering procedures with a social aspect from challenge under Community law. See also the pending case, C-271/08, Commission v Germany.
111. Arts 46-8.
112. Art 45.
113. Case 31/87, Beentjes v State of the Netherlands [1988] ECR 4635, para 28.
114. Para 28.
115. Recitals 34 and 43.
116. OJ [2000] L303/16.
117. OJ [1976] L39/40. See also to this effect OGC, Social Issues in Purchasing, February 2006.
118. See also the Commission's Interpretative Communication on the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement, COM(2001) 566, at p. 17.
119. See also S. Arrowsmith, The Law of Public and Utilities Procurement (London: Sweet & Maxwell, 2005), 1257.
120. Social Issues in Purchasing, 26 February 2006, at p 37: 'Do not require contractors to employ local people. This would be discriminatory under the EU Treaty'.
121. Commission Interpretative Communication, n. 102 above p. 16, at fn. 61 (emphasis added) .
122. C. McCrudden, Buying Social Justice (OUP, 2006), 439.
123. Case 31/87, Beentjes v State of the Netherlands [1988] ECR 4635.
124. Para 30.
125. See AG Sharpston's Opinion in Case C-212/06, Government of French Community and Wallon Government v Flemish Government [2008] ECR I-1683, para 155: 'It is not difficult to foresee circumstances in which such objective justification could potentially be made out. One can readily imagine (for example) that, in order to promote a less-developed region within its territory, or to deal with a problem that is endemic to one region but does not affect the rest of its territory, a Member State might wish to make certain advantages available only to those living within a particular region.'
126. See also Case C-464/05, Geurts v Administratie van de BTW [2007] ECR I-9325, para 26: 'considerations connected with the survival of small and medium-sized undertakings and the maintenance of employment in them, may, under certain circumstances and conditions, be acceptable justifications'.
127. See eg Case C-237/94, O'Flynn v Adjudication Office [1996] ECR I-2617, paras 18-9: 'conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or the great majority of those affected are migrant workers, where they are indistinctly applicable but can be more easily satisfied by national workers than by migrant workers or where there is a risk that they may operate to the particular detriment of migrant workers. It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by national law.'
128. Lisbon European Council, Presidency Conclusions, 23-24 March 2000, http://consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/ 00100-r1.en0.htm (accessed 28 March 2009).
129. See eg Commission, 'Working together for growth and jobs. A new start for the Lisbon Strategy' COM(2005) 24 and the European Council's Conclusions, 22 and 23 March 2005, http://europa.eu/rap id/ pressReleasesAction.do?reference=DOC/05/1&format=HTML&aged= 0&language=EN&guiLanguage=en (accessed 28 March 2009).
130. http://register.consilium.europa.eu/pdf/en/08/st10/st10614-re02.en08.pdf (accessed 28 March 2009).
131. Cf the horizontal provision introduced by the Lisbon Treaty, Art 9, Treaty on the Functioning of the Union (TOFU): 'In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.' (emphasis added).
132. For example, Recital 28 of Directive 2004/18, albeit written specifically in the context of sheltered workshops and employment programmes. See also Recital 8 of the Race Directive 2000/78 (OJ [2000] L180/22): 'The Employment Guidelines 2000 agreed by the European Council in Helsinki, on 10 and 11 December 1999, stress the need to foster conditions for a socially inclusive labour market by formulating a coherent set of policies aimed at combating discrimination against groups such as ethnic minorities.'
133. Case C-411/05, Palacios de la Villa v Cortefiel Servicios SA [2008] ECR I-8531.
134. See also Case C-388/07, The Queen on the application of The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform, judgment of 5 March 2009, para 51.
135. Para 62.
136. Para 66.
137. 3 April 2009, available at http://www.araco.org/infutile/noutatifiec/ 2009-04-03%20Social%20Considerations%20in%20pp%20-%20sent%20out%20to% 20EXTERNAL%20CONSULTATION%20_2_.pdf (accessed 29 June 2009), discussed by CEEP May 2009 http://pr.euractiv.com/files/09avis11en- social%20considerations%20in%20public%20procurement.pdf (accessed 29 June 2009).
138. Draft handbook, above n. 119, pp 7-8.
139. Case 249/81, Commission v Ireland [1982] ECR 4005.
140. Para 25.
141. Case C-21/88, Du Pont de Nemours Italiana SpA v Unità sanitaria locale No.2 di Carrara [1990] ECR I-889.
142. Para 11.
143. McCrudden, above n. 106, 325.
144. For detailed discussion see C. Barnard, EC Employment Law (Oxford: OUP, 2006), Ch 3
145. and D. Ashiagbor, European Employment Strategy (Oxford: OUP, 2005).
146. http://register.consilium.europa.eu/pdf/en/08/st10/ st10614-re02.en08.pdf (accessed 27 March 2009).
147. See in particular Guideline 17: 'Implement employment policies aiming at achieving full employment, improving quality and productivity at work, and strengthening social and territorial cohesion.'
148. C. Barnard and B. Hepple, 'Substantive Equality' [2000] CLJ 562.
149. Commission, Cohesi on Policy 2007-13. Commentaries and Official Texts 2007, http://ec.europa.eu/regional_policy/sources/docoffic/ official/regulation/pdf/2007/publications/guide2007_en.pdf (accessed 27 March 2009).
150. Art 3(2)(b) of General Regulation 1083/2006 [2006] OJ L210/25.
151. http://ec.europa.eu/regional_policy/country/prordn/ details_new.cfm?gv_PAY=UK&gv_reg=ALL&gv_PGM=1243&LAN= 7&gv_PER=2&gv_defL=7 (accessed 24 March 2009)
152. http://www.lincolnshire.gov.uk/section.asp?catid=19925&docid=66682 (accessed 27 March 2009).
153. East Midlands Competitiveness Programme, Sustainable Economic and Enterprise Activity in Disadvantaged Communities, Guidance Note for Priority Access 2 Targeted Districts, 4-5 April 2008.
154. Cf City of Richmond v J.A. Croson Co, 488 U.S. 469 (1989) where the US Supreme Court held that the city council of Richmond's minority set-aside program, giving preference to minority business enterprises in the awarding of municipal contracts, was unconstitutional under the Equal Protection Clause because, inter alia, it was insufficiently narrowly tailored. According to the Commission's Interpretative Communication, above n. 102, 14, 'Certain states that are signatories to the Agreement on Government Procurement made express reservations to allow their contracting authorities to apply a social criterion when awarding contracts. The USA, for example, reserved the right to reserve certain contracts for minorities. However, no such reservation was made by the European Community. As a result, such criteria must be considered as being contrary to the provisions of the public procurement directives, especially where they relate to the award of contracts.
155. I am grateful to Susanne Baer for this point. 137 See also the Commission's draft handbook, above n. 119, citing as an example a contract performance clause used by the Basque country government: 'Labour inclusion of unemployed people that are difficult to employ: The contract performance must include minimum 20% of unemployed people with high difficulties in being employed on the staff of the organisation that will perform the contract. People with disabilities, women above 30 that are long term unemployed, household violence victims, persons with mental illness, unemployed father or mother of one-parent families, immigrants unemployed for 6 months, long term unemployed people (more than one year), and unemployed young persons ...'
156. Case C-225/98, Commission v France [2000] ECR I-7445.
157. Para 18.
158. This is taken from Art 34 of the Utilities Directive 93/98.
159. Para 50. See also Case C-513/99, Concordia Bus Finland Oy Ab v Helsingin kaupunki [2002] ECR I-7213, para 55 where the Court ruled that the relevant provisions of the public procurement directives do not mean that 'each of the award criteria used by the contracting authority to identify the economically most advantageous tender must necessarily be of a purely economic nature. It cannot be excluded that factors which are not purely economic may influence the value of a tender from the point of view of the contracting authority. That conclusion is also supported by the wording of the provision, which expressly refers to the criterion of the aesthetic characteristics of the tender'.
160. Para 51.
161. The most famous example of this is the Court developing the principle of mutual recognition in Case 120/78, Rewe Zentrale v Bundesmonopolverwaltung für Branntwein ('Cassis de Dijon') [1979] ECR 649 and the Commission following up with its Communication on Cassis (EC Commission, 'Communication from the Commission regarding the Cassis de Dijon judgment ' ([1980] OJ C256/2) which in turned formed the basis to the new approach to harmonisation.
162. General Report (2000), Chapter IX, 'Community law', para 1119.
163. Above n. 119, 15.
164. Case C-513/99 [2002] ECR I-7213.
165. Para 52, emphasis added.
166. Para 59. See also Case C-448/01, EVN v Republik Osterreich [2003] ECR I-14527, para 33,
167. and Case C-331/04, ATI EAC Srl e Viaggi di Maio Snc v ACTV Venzia SpA [2005] ECR I-10109, para 21.
168. P. Charro, Case note (2003) 40 CMLRev 179, 187.
169. McCrudden, above n. 106, 523. Cf Commission, Interpretative Communication, n. 102 above, 6-7 which lends some support to McCrudden's view.
170. McCrudden, above n. 106, 524.
171. Ibid., 526.
172. Commission, Interpretative Communication, n. 102, above, 13.
173. See Case C-267/06, Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757, para 60.
174. http://www.communities.gov.uk/archived/general-content/localgovernment/ publications/odpmcirculars/addendumannex/ (accessed 24 March 2009).
175. Above n. 104, 29.
176. C. Pitschas and H. Priess, 'Secondary Policy Criteria and Their Compatibility with EC and WTO Procurement Law. The Case of the German Scientology Declaration' [2000] Public Procurement Law Review 171, 190.
177. Ibid., 191.
178. McCrudden, above n. 106, 592. There has also been no evidence of the WTO complaining about the EU's stance on SRPP. There is no discussion of the compatibility of SRPP with the GPA in the Commission draft handbook.
179. Case C-350/96, Clean Car [1998] ECR I-2521 suggested that such arguments would be possible under Art 39.
180. Commission, Lisbon Strategy, above n. 112, para 39.
181. Commission Communication, Implementing the Partnership for Growth and Jobs: Making Europe a Pole of Excellence on Corporate Social Responsibility COM(2006) 136, 2.
182. COM(2001) 366, para 43.
183. http://www.total.com/static/fr/medias/topic3306/total_en_france_vf.pdf, esp pp 9-11. It is this document that is used by the unions to argue that Total takes issues of CSR more seriously in France than it does in the UK.
184. E. Johnson and D. O'Keefe, 'From Discrimination to Obstacles to Free Movement' (2002) 39 CML Rev 731.
185. Case C-209/03, Bidar [2005] ECR I-2119.
186. Case C-157/99, Geraets-Smits [2001] ECR I-5473.
187. Case C-287/05, Hendrix [2007] ECR I-6909.
188. Governance White Paper COM(2001) 428.
189. 'The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States' (emphasis added).