News
Compulsory employment, provided for by protection clauses of contract notices, cannot harm the freedom of enterprise
- 20/03/2017
Article 50 of the new Italian Public Procurement Code (Legislative Decree no. 50 of 2016) considers the possibility that, for services with manpower costs of at least half the total amount of the contract, notices of public procurements may contain a protection clause (so-called “clausola sociale”) regarding the employment of workers of the previous procurement.
With Judgment no. 231 of last 13th February, the “TAR Tuscany” had stated that the obligation, provided for in the contract notice, concerning the employment of workers of the outgoing contractor, could not harm competition.
More recently, with Judgment no. 132 of last 1st March, the “Consiglio di Stato” has explained that the aforementioned obligation cannot operate with reference to the same post and in the context of the same procurement.
In particular, such clause cannot entail an obligation upon the new contractor to automatically employ on a permanent basis the workers of the outgoing contractor.
So, in order not to harm competition, the obligation to employ the staff of the outgoing contractor, provided for by a protection clause, is to be compatible with the business organization of the new contractor.
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