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Revista Nº 35 Diciembre 2019
Monográfico: Contratación pública responsable, empresas de economía social e igualdad

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María José Senent Vidal y Amalia Rodríguez González (Coordinadoras)

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Presentación

Presentación del monográfico

María José Senent Vidal y Amalia Rodríguez González

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Introducción

Contratación pública responsable, empresas de economía social e igualdad

Amalia Rodríguez González y María José Senent Vidal

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Artículos

Amalia Rodríguez González y María José Senent Vidal (Coordinadoras)

Reserva de contratos a los centros especiales de empleo de iniciativa social: régimen jurídico y doctrina consultiva y de los tribunales administrativos de recursos contractuales

Beatriz Martín Lorenzo

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La reserva de contratos a los Centros Especiales de Empleo, si bien excepciona el principio general de libre competencia, se autoriza por el derecho comunitario y el nacional como instrumento estratégico al servicio de la integración social de personas o colectivos con dificultades de empleabilidad. En este artículo se exponen las líneas principales de su régimen jurídico, de la doctrina consultiva y de los Tribunales de recursos contractuales a propósito de los distintos rasgos caracterizadores de los contratos reservados y de las novedades que en esta figura introduce la Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, con el establecimiento de porcentajes mínimos de reserva y la limitación de la reserva a los Centros Especiales de Empleo de “iniciativa social”, con la eventual discriminación que ello podría suponer para los de “iniciativa empresarial”, que sin embargo se descarta.

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RESERVATION OF CONTRACTS TO SPECIAL EMPLOYMENT CENTERS OF SOCIAL INITIATIVE: LEGAL REGIME AND ADVISORY DOCTRINE AND DOCTRINE OF THE ADMINISTRATIVE COURTS OF CONTRACTUAL RESOURCES

The reservation of public contracts to the Special Employment Centres is laid down as an exception to the principle of free competition on public procurement, recognised in Article 18 of Directive 2014/24/EU of the European Parliament and the Council.

This exception is justified on the Consideration 36 of the Directive, concerning the objective pursued by the reservation, aimed at the social integration of persons with disabilities and disadvantages. To this end, the reservation is authorised in Article 20 of the Directive, which recognises the power of Member States to make reservations of contracts, determining the minimum percentage of persons with disabilities or disadvantages that protected workshops must employ, and the necessary publicity to be given to the reservation of the contract in the call for tenders.

The Spanish Law 9/2017, of 8 November, on Public Sector Contracts, transposing into Spanish law the Directives of the European Parliament and the Council 2014/23/EU and 2014/24/EU, refers specifically to the «Principles of equal treatment, transparency and free competition» in Article 132 that expressly accepts the participation restriction represented by the reservation of contracts for social reasons. In turn, Article 94 of this Law allows the contracting authority to agree on the reservation, an option which must in any case be in accordance with the regime established by the fourth additional provision of Law 9/2017.

Unlike the previous regulation, contained in the consolidated text of the Law on Public Sector Contracts, approved by Royal Legislative Decree 3/2011, of November 14, the fourth additional provision of Law 9/2017 introduces two main innovations: the first one, the limitation of the subjective scope of the reserve to the Special Employment Centres, referred to as «social initiative»; and the second one, the requirement that the set of contracts reserved by each Administration reaches the minimum percentage that is established for each one.

Thus, the reservation, which in the previous legislation extended to all Special Employment Centres, is now limited to the Special Employment Centres of «Social Initiative», a category that is defined as a novelty in the final fourteenth provision of Law 9/2017, which modifies at this point the Consolidated Text of the General Law on the Rights of Persons with Disabilities and their social inclusion, approved by Royal Law Decree 1/2013 of 29 November by incorporating a fourth paragraph into Article 43.

According to this new provision, the requirements for the consideration of a Special Employment Centre as a «Social Initiative» ones are summarized as follows:

– Compliance with the general requirements established for all Special Employment Centres of Article 43, points 1 and 2, of the Consolidated Text of the General Law on the Rights of Persons with Disabilities.
– The absence of profit aim, determined by the obligation to reinvest all profits in the same or another Employment Centre of Social Initiative, for the improvement of the employment of the group of persons with disabilities, the competitiveness of these persons and their social economy activity.
– That the Center be promoted and participated in more than 50% by non-profit entities or entities with social character recognized in their Statutes or having the majority of the capital stock of the mercantile companies holding the Special Employment Centres.

The new regulation of the reservations of contracts to the Special Employment Centres under Article 20 of Directive 2004/18/EC has raised a number of questions that have been analysed by various pronouncements of advisory bodies and administrative tribunals responsible for solving special appeals with regard to contracting.

Initially, the mandatory or optional nature of the transposition of Article20 of the Directive for Member States was discussed on the occasion of the analysis of the eventual direct effect of that provision, derived from the Spain’s failure to comply with the end of the period for Directive transposition, laid down on 18 April 2016. In that regard, the various bodies that examined this issue acknowledged the voluntary nature of the transposition of Article 20 of the Directive.

Moreover, the limitation in the subjective area of the reservation of contracts introduced by Ley 9/2017 concerning the Special Employment Centres has determined the questioning of whether the transposition made by the Law, by exclusive reference to those of «Social Initiative» characterised by the absence of profit aim, has been consistent with Article 20 of the Directive, a circumstance on which even the raise of a preliminary ruling to the Court of Justice of the European Union was initially proposed by the Special Employment Centres of “Social Initiative”, although said raise was not finally held because the Contractual Resources Courts considered that there is no contravention of Directive 2014/24/EU, given that Article 20 does not limit the legal form of entities eligible to be beneficiaries of the reservation, which may vary depending on the Member State, so that the option chosen by the National Legislator considering the Special Employment Centres as beneficiaries of contracts reserved for the “Social Initiative” does not conflict directly with Community legislation.

Finally, the present work discusses a number of pronouncements of the Advisory Boards and the bodies responsible for solving special procurement resources, which have outlined the peculiar characteristics of the procedure for the award of reserved contracts. Thus, among the issues addressed in the work, we can found those related to the consequences of the lack of adoption of the pre-litigation agreement setting the minimum percentage of the reservation; the need to justify the decision to reserve the contract; the status of Special Employment Center of “Social Initiative” as a required condition for accessing the contract and the questioning of the possibility of subcontracting in the reserved contracts; the object of the reservation; or the prohibition of the extension of the reservation to all lots of a contract by expelling small and medium-sized enterprises from the market, this way restricting unduly the free competition.

In any case, it would be desirable, in favour of legal certainty, to better demarcate legally the aspects that characterise the reserved contracts, thereby reducing the discretion that, in the absence of such precision, each contracting authority must implement when exercising the reservation provided by Article 99 of the LCSP, with sights set on the need to strengthen the possibilities of employment and the better labour and social integration of the collective of persons with disabilities and, in particular, that of persons with disabilities with special difficulties in accessing employment.

Las cláusulas sociales en la contratación pública: un estudio de su idoneidad para el fomento de la economía social

Sergio Canalda Criado

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La colaboración público-privada a través de la contratación pública representa una manifestación de la descentralización productiva produciendo ocasionalmente efectos adversos
en términos sociales. Sin embargo, mediante las Directivas 2014/23/UE y 2014/24/UE la Unión Europea desea impulsar, a través de la contratación pública, mejores estándares
sociales y la consecución de la Estrategia Europa 2020.
La Ley 9/2017 de Contratos del Sector Público ha incorporado importantes novedades sobre la inclusión de cláusulas sociales en la contratación pública, virando hacia criterios
cualitativos que debieran primar el cumplimiento de los principios orientadores de la economía social. Sin embargo, el tipo de contenidos de dichas cláusulas que la Ley
sugiere se concentran en corregir los resultados perniciosos en términos sociales que la descentralización productiva ha provocado en algunos casos, afectando la idoneidad de
aquellas para tomar en consideración las características de la economía social y, en el caso estudiado, las cooperativas de trabajo asociado.

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SOCIAL CLAUSES IN PUBLIC PROCUREMENT: A STUDY OF ITS SUITABILITY FOR PROMOTION OF SOCIAL ECONOMY

This article analyzes the suitability of the provisions on social clauses in public procurement included in Law 9/2017, of November 8, on Public Sector Contracts (LCSP) for the promotion of the social economy. The work starts with a preliminar approach to public procurement as a manifestation of productive decentralization through public-private collaboration. Specifically, the LCSP is presented as the norm that regulates the phenomenon of productive decentralization in the public sector, giving it its own rules and contractual types. However, although public procurement has a different legal regime than the private sector, this is not an obstacle to the presence of work precariousness in public decentralization.

Once the context has been presented, the article introduces the new Directives 2014/23/EU and 2014/24/EU on public procurement as part of the European Union’s interest in advancing the European social model and, therefore, in promoting the social economy. In this sense, the article emphasizes that, while the current regulation on public procurement in the European Union is another expression of the Internal Market, the new EU regulation also aims to achieve the social objectives stated in the Treaties of the Union. For this purpose, that part of the article lays out examples of the existing social acquis that is applicable to public procurement rules. The article draws attention to the innovative character of the new Directives when they state that the promotion of the social economy must also be acknowledged when referring to achievement of the objectives of the Europe 2020 Strategy.

The article then proceeds to present the change of perspective of the new Spanish law, which evolves from a model that allowed the reduction of social standards towards a new model that favors the principles on which the social economy is based. On the one hand, the article analyzes the worsening of the working conditions of employees in the service of contractors and concessionaires and, especially, the phenomenon of multiservice companies, which have exploited their competitive advantage of low labour and salary costs in procurement processes. In addition, the limited resources that Labour Law has to correct the decline in social rights in the context of outsourcing are underlined. Therefore, social clauses have a protective role for workers’ rights.

Finally, the question of the suitability of the provisions of the new law regarding social clauses for the promotion of the social economy is addressed. It is based on the premise that if the new provisions of the LCSP respect the constitutional mandate of promotion of the social economy, and if entities of the social economy contain among their guiding principles the social standards that social clauses should guarantee, such social clauses must be suitable for the promotion of the social economy. Consistent with this, the analysis begins with the presentation of the LCSP and its promotion of a strategic use of public procurement in support of social objectives. The analysis then focuses on the requirements and the types of criteria that can be established by the contracting bodies for the award of the contract (art. 145 LCSP) and the possible special conditions for its execution (art. 202 LCSP). Legal provisions include «social characteristics», in the case of award criteria, and «social or employment-related considerations», in the case of special conditions of execution, the content of which is grouped for analysis presenting their similarities and differences. According to that, four groups of possible topics to be addressed by social clauses can be distinguished: (i) a group of topics related to the promotion of integration and employment of people with disabilities, disadvantaged persons or members of vulnerable groups (or at risk of social exclusion); (ii) a group concerning the achievement of effective equality between women and men, mainly focused on work and life balance and gender equality plans; (iii) the contents related to the conditions of employment and work such as compliance with applicable sectoral and territorial collective agreements; and (iv) contents referring to the company’s performance as an economic actor, either through the fulfillment of social standards throughout the production chain or through the application of «ethical and social responsibility criteria».

Once the classification is completed, the suitability of the mentioned contents of the social clauses suggested by the Law in order to promote social economy and include its characteristics is studied and assessed. The main results lead to the following observations. Regarding the first group of contents, despite the legal obligation of public authorities to reserve a percentage of contracts to specific firms employing persons with disabilities and firms triggering the insertion and occupation of other vulnerable groups or persons, the Law does not provide for the same obligation for other companies belonging to the social economy. Secondly, though the Law promotes social clauses in order to impulse the achievement of effective equality between women and men, there is a need to go beyond the formal existence of gender equality plans as a criterion for awarding the public contract. The majority of social economy enterprises are not obliged to have these plans, but they may have implemented other measures. Thirdly, the group of social clauses linked with employment and work conditions are mainly focused on the salaried population and, therefore, do not take into account the special characteristics of cooperatives, where members are not necessarily employees and social standards are not necessarily provided by collective agreements. And finally, regarding the fourth group of contents, related to corporate social responsibility, although the law mentions supply chains without referring to the social economy, it is possible to find specific proposals for the participation of entities of the social economy as contractors.

As a conclusion, the prototype contents of social clauses provided in the LCSP suffer from a bias towards the capitalist company when they focus on the conditions of wage labour and do not take into consideration the characteristics of workers’ cooperatives. However, the article mentions other instruments which have been adopted by public administrations and which incorporate the special characteristics of companies belonging to the social economy, especially cooperatives. Related thereto, the article draws attention to the need to extend these good practices to all procurement processes.

Centros especiales de empleo de iniciativa social. Avances legislativos y ajustes necesarios

Antonio Borja García Sabater

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La actual Ley de Contratos del Sector Público, modificó la Ley General de Derechos de las personas con Discapacidad caracterizando la nueva categoría de Centros Especiales de Empleo de Iniciativa Social. La obligación de realizar contratos reservados para entidades sociales y la posibilidad de aplicar características objetivas que formulen licitaciones más sociales permite impulsar la igualdad por medio de los contratos públicos. Los centros especiales de empleo de iniciativa social pueden ser un instrumento para promover el empleo de trabajadores con discapacidad con especiales dificultades de acceso al empleo, pero todavía se requieren algunos ajustes en la normativa estatal y autonómica.

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SHELTERED EMPLOYMENT CENTERS OF SOCIAL INITIATIVE. LEGISLATIVE ADVANCES AND NECESSARY ADJUSTMENTS

The current state legislation on public sector contracts, from 2017, defines a new category of Special Employment Centers (SEC) which it calls Social Initiative and aims to promote equality, through the application of features in contracts that value promotion of hiring people with disabilities with special difficulties in accessing employment, promoting a public procurement focused on the most disadvantaged groups at work.

The article focuses on the analysis of the Special Employment Centers that are considered to be Social Economy entities and emphasizes that the new public procurement rule encourages the administration contracts with social economy entities through the reservation of contracts with these centers and also with insertion companies, because the economic benefits of these public contracts will be returned to society directly, and because in addition the social companies put the person, the worker at the center, who will develop their work in those contracts.

In the section of the SEC as a Social Economy, it allows, through the data it reflects, to make a comparison of the advantages that the empowerment of the Social Initiative SEC can offer in relation to the Business Initiative SEC. It describes how in Spain began employment protected only with social entities, but that at the end of the nineties, began to be discovered by commercial entities interested in the exploitation of a type of contracting with great financial support.

Evidence as the increase in the number of commercial initiative SEC coincides over time with the decrease in the percentage of workers with severe disabilities in protected employment, so it makes a proposal for possible adoption measures to reinforce the role to be played by the former, being the social initiative CEEs who hire a very high percentage of workers with special difficulties of access to employment.

The most notable example is that of the Valencian Community where in 2001 the workforce of workers with intellectual disabilities and / or with mental health problems of their SEC was 45.76% of the total, and in 2016 this group of workers represented only 26.23%, having reduced almost 20 points, the population of workers, which some authors understand should be the only users of this kind of employment.

Since the Public Sector Contract Law in 2017, through its final fourteenth provision approved the amendment of the consolidated text of the General Law on the Rights of Persons with Disabilities and their Social Inclusion, adding a new section to its article 43, which determines the characteristics of the Special Employment Centers of Social Initiative, which should be promoted and participated mostly by non-profit entities, and with the legal obligation to reinvest their benefits. Dedicated the section to relate the law of social economy and protected employment highlighting the need to modify Law 5/2011, of Social Economy, to adapt it to the modification of the aforementioned article 43 and, consequently, to limit the consideration of social economy entities to the Social Initiative ECS, proposing that Article 5.1 of the aforementioned norm be modified in a generic way that establishes that the ECS are part of the social economy, when it should determine, clearly and precisely, that only «special employment centers of social initiative» will be part of the Social Economy.

After that, the article exposes the possibilities that the new Public Sector Contract Law, Law 9/2017, offers to boost social economy and equality. The norm favours the awarding to the social SEC by means of two mechanisms: a) through the possibility of determining the object of the contract, dividing in batches and reserving them expressly for SEC of social initiative and b) establishing as qualitative criterion of adjudication, a social aspect such as the promotion of social integration of people with disabilities, disadvantaged people or members of vulnerable groups. It describes as the standard set minimum percentages that will range between 7% and 10% of the overall amount of the award procedures and as in order to promote access to public procurement to small social entities in the reserved contract is not required to the definitive guarantee that is generally required.

The author believes that the administration through the new regulation can promote the employment of those who have more needs for work support, being able to increase the hiring of people with intellectual disabilities or mental health problems, through the promotion of the concept of exclusion social, or special support needs within the disability, estimating that this would generate more responsible and more inclusive public contracts.

In the section referring to the SEC registers of the autonomous communities, interesting reflections are made regarding the need for homogenization of the regulations regarding the qualification requirements of the SEC of social initiative, since its lack can cause practical problems for the articulation of the reserve of contracts.

The contributions of the section dedicated to necessary specific support to people with special difficulties of access to employment include a comparison of the percentages of employment of these people in Special Employment Centers of Social Initiative and Entrepreneurship and are outstanding. They proposes the need for positive discrimination within the disability, in which the reservation of contracts serves as an instrument to promote the creation of jobs for people with greater employability difficulties.

The article ends by highlighting the necessary special support in employment required by some groups within the disability, and that such supports can be promoted with the new Public Procurement Law. Taking first the statistics that determine which groups within the disability have more difficult to access employment, evidencing that people with intellectual disabilities or mental health problems have greater difficulty accessing many jobs, among other reasons, because of their difficulty in quickly resolving some situations or due to adaptation problems, proposing that in protected employment aids differ according to the support needs of workers, as would be logical, and as is done in ordinary employment, and not only in function of the employer having an SEC rating

La dimensión social e inclusiva de la Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público. ¿Un nuevo avance en la inclusión de las personas con discapacidad?

Laura Marín Cáceres

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Análisis jurídico de las principales cláusulas sociales en la Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, con el objetivo de determinar si su tardía promulgación responde al compromiso adquirido de utilizar la contratación pública como instrumento para implementar políticas tanto europeas como nacionales que supongan un avance en el obligado respeto a los derechos de las personas con discapacidad y, por tanto, su plena inclusión.
Para ello, gran parte del trabajo se dedica a analizar el impulso de la normativa internacional, como motor de inclusión de las cláusulas sociales relativas a la discapacidad en la contratación pública, pues no cabe duda que las modificaciones en nuestro Derecho interno sobre contratos públicos, se deben al impulso que con distinta intensidad provocan las Directivas de contratos de la Unión Europea que se suceden desde 1971.

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THE SOCIAL AND INCLUSIVE DIMENSION OF LAW 9/2017 OF NOVEMBER 8TH ON PUBLIC SECTOR CONTRACTS
A new advance for the inclusion of people with disabilities?

The inclusion of social clauses in public procurement responds to a process of evolution that has its origin in the development of human rights. Legislation at supranational and regional level protects human rights and implicitly protects persons with disabilities, although the International Convention on the Rights of Persons with Disabilities provides the binding legal framework by and for people with disabilities. Likewise, the European Union transforms its objectives and adapts its policies with the goal of becoming a guarantor of human rights. Proof of that is the use of the Directives as an appropriate instrument for harmonisation, playing a leading role in the development of public procurement, as a powerful instrument for achieving social, environmental and innovative objectives. In this sense, this law is enacted as an instrument of transposition of European Parliament and Council Directives 2014/23/EU and 2014/24/EU of February 2014, Law 9/2017, of November 8th, on Public Sector Contracts (hereinafter LCSP) (although out of term).

It is an extensive, complex norm, sometimes with a complicated wording, constant references to other articles of the norm and even to other laws, which has caused a huge amount of pre and post norm information that, in occasions, more that clarifying produces the opposite effect. Wishing that this does not happen with the content of this paper (which aims to determine whether the inclusion of social clauses in the hiring processes, assuming the commitment to meet objectives of socio-labour policy, have counteracted and, therefore, improved the real disadvantages of people with disabilities in the socio-labour sphere, ensuring equal treatment and non-discrimination), its content is structured from the general to the content of the LCSP itself.

In this sense, defines a social clause as a discretion included in public procurement processes by virtue of which the commitment to comply with certain social policy objectives is assumed. However, the social clauses we refer, are the provisions that can be included in public contracts to compensate the situation of people with disabilities.

There is a wide-ranging reason to include social clauses. From the eternal dichotomy between Economy and Ethics, between what is and what should be, to the meaning of the values enshrined in the Spanish Constitution that configure the State as social. However, the fact is that the changes in our internal law on public contracts are undoubtedly due to the drive caused with different intensity by the European Union Directives that have happened since 1971 and to the Jurisprudence of the Court of Justice. In particular, the idea that public procurement is the ideal document to materialise other public policies such as social policy

and with a clear superiority of environmental policy that it is reflected in the Directives of 1992. The EU injects a new impulse to use public procurement as a means of integrating social aspects through the third generation Directives (2004). For this reason, we already find social and environmental considerations in the repealed laws 30/2007 and 3/2011 on Public Sector Contracts and with the fourth generation Directives in 2014, the latter of this transposed by Law 9/2017, which the full entry into force is delayed until 9 March 2019.

The analysis of the main contributions of the LCSP, from its social and inclusive dimension, has been carried out through a series of points that, if practiced by the Public Administration or public sector entity, subject to the regulatory Law framework, would embody the conviction and support for public procurement socially responsible towards people with disabilities. Based on this, thirteen actions or exercises are proposed to be carried out. They emphasize the imperative mandate of inclusion of social clauses in public procurement (art. 1.3) and must be interpreted in conjunction with the rest of the regulation because, although the debate on whether the inclusion of the clauses distorted the very nature of the contract ends, it is no less true that their incorporation may be when award criteria are designed, such as the qualitative criteria for evaluating the best value for money or as special execution conditions, but their introduction is subject to their being related to the object of the contract. For this reason, before including them, it would be necessary to assess the goal pursued and choose the most suitable means and a control of the effective compliance with the social clause during the execution phase, it does not make sense that what is required by the public authority or offered by the bidder is left to the fate of the successful bidder. The problem is that the control and imposition of sanctions is a faculty of the contracting authority.

It is of maximum interest, in order to achieve the effectiveness of the social clauses referring to disability, the possibility of planning in advance the public contracting of the exercise and conducting preliminary market consultations of the market (art. 115). The improvable aspect of this forecast would be to modify the concept of planning and consultation due to their mandatory nature.

On the other hand, it would be convenient for a correct application of the reserved contracts that the Public Administrations and public entities draw up lists of the Special Employment Centres, Insertion Companies and Social Economy Companies in order to collate the contractual object itself and the sector of activity, with those products and services that these companies offer. In relation to this, the fourth additional provision imperatively establishes that the State Administration, Autonomous Communities and local entities are obliged to set a minimum percentage of their public contracts and classify them as reserved.

The Act includes prohibitions on hiring those who fail to comply with the quota to reserve jobs for people with disabilities and/or drawing up equality plans. It is established that the circumstances are appreciated and applied directly by the contracting body, which provides the necessary competence to exclude a company. The relevant issue is that the 71.1 d) article, establishes that compliance shall be accredited by means of a responsible declaration, which does not accredit only manifest. The issue is not trivial, because too many times the reservation fee is met only at the time of attending the tender.

In addition, as news, on the one hand, based on the literal wording of art. 145, establishes an open and comprehensive list, with specific topics and aspects that can be included among the award criteria. The most advantageous economic offer concept is surpassed by the best value for money. Whenever possible, preponderance will be given to objective criteria over subjective ones.

On the other hand, the LCSP leaves beyond any doubt the legality of incorporating special social execution conditions. Art. 202 presents an extensive list of topics, but not closed and as a novelty the obligation to indicate at least one special condition. This mandatory character is a magnificent tool to adopt social responsibility policies that benefit effectively, but it is essential to verify compliance. For this reason, the last phase of the procedure must be the control of compliance with social criteria and the Law has an important stumbling block to overcome, in the sense that it has been possible to be a socially committed contracting body throughout the procedure and instead not verify compliance with the incorporated social clauses. The problem is that the Law empowers, but does not require to establish sanctions.

However, all of the above, for several reasons, the LCSP has not innovated especially regarding to disability. On the one hand, it is a law so unambitious that it could or could not have been enacted, since the choice of the legal instrument of transposition is a faculty of each State, or at least to have used all the time of duration of the noncompliance to improve or extend this regulation, since it reproduces the 2014 Directive or continues the line of the previous regulation, proof of this are arts. 93, 126 and the eighteenth additional provision. In addition, its lack of ambition is evident by including among the possible special conditions of execution «to make effective the rights recognized in the United Nations Convention on the Rights of Persons with Disabilities» when its legally binding application is beyond doubt.

The novelties and improvements of the Law cannot be denied, but many are optional and the others are subject to the control authority of the contracting authority. Therefore, it will be necessary to enforce compliance and guarantee of the principle of equality and non-discrimination, large doses of commitment from the Public Administration, effective control systems for companies, legal actions and active participation of the Third Sector.

Concurrencia competitiva, igualdad entre licitadores y discriminación positiva en las reservas de contratos: un análisis desde los conflictos.

María Burzaco Samper

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Las Directivas de 2014 suponen un viraje hacia la contratación pública estratégica. Ésta se concibe como un instrumento de intervención económico-social que comporta la introducción de elementos correctores en las reglas tradicionales de la contratación pública. Dichas reglas (marcadas por los principios de igualdad entre licitadores y concurrencia competitiva) podían dejar en posición de desventaja a organizaciones empresariales y entidades del tercer sector en las que priman las personas sobre consideraciones puramente economicistas. Este trabajo se centra en uno de esos elementos correctores (las reservas de contratos) en las dos modalidades que contempla la Ley 9/2017, de Contratos del Sector Público. Con base en el análisis de los conflictos, defendemos que no estamos ante excepciones a las reglas generales, sino ante variaciones fundadas en determinados principios de la contratación pública actual, así como en el interés general como guía de la actuación administrativa. Por otro lado, se examinan algunos de los obstáculos en la implementación de la contratación pública socialmente responsable, subrayando la importancia del control sobre la ejecución y el análisis de sus efectos en la consecución de algunos objetivos estratégicos para la Unión Europea.

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COMPETITIVE TENDERING, EQUAL TREATMENT OF BIDDERS AND POSITIVE DISCRIMINATION IN RESERVATION OF CONTRACTS: AN ANALYSIS FROM THE PERSPECTIVE OF THEIR CONFLICTS

The 2014 Directives on public procurement imply a shift towards “strategic public procurement”; a new paradigm that transforms public contracts into instruments for socioeconomic intervention. This new conception is not without difficulties since its implementation requires introducing some corrections in traditional public procurement rules and principles. Indeed, the principles of equal treatment and competitive tendering need to be “reinterpreted” if a real opportunity to compete is to be given to third sector organizations in competitive procedures (organizations for which individuals are more important than purely economic criteria).

This article focuses on one of these adjustments: reserved contracts. Although they do not constitute a new category in public contract legislation, they introduce some significant variations that try to reinforce it. As opposed to traditional reservation of contracts, the Law 9/2017 of 8 November 2007 on Public Sector Contracts (LPSC) currently in force establishes two different modalities:

a) Reservation of contracts under the 4th Additional Provision LPSC: it respects the traditional framework (it applies to certain contracts and the beneficiaries are sheltered workshops and economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons), but it also reinforces it. On the one hand, it obliges to specify the percentage of reserved contracts. Otherwise, the large percentages stated in the LPSC would apply. On the other hand, this reservation also affects the lots a contract may be divided into (an important provision considering that division into lots has been established as the general rule).

Although rules applicable to this type of reservations have been improved, we can still point out some flaws: the most important one is the absence of a clear and unambiguous number on which the reserved percentage shall be applied.

b) Reservation of contracts under the 48th Additional Provision LPSC: contrary to the former, this reservation is optional. It´s also linked to a certain type of contracts (in this case, contracts for social, cultural and health services) and the beneficiaries shall meet strict requirements, related to their non-profit nature.

In any case, the features of this reservation can make it difficult to distinguish it from the possibility of reserve the right for organisations to participate in procedures for the award of public contracts exclusively for some health, social and cultural services, i.e. non-contractual instruments established by the 49th Additional Provision LPSC to provide services for social needs.

The rules applicable to each of these forms of reserved contracts must completed with further analysis focusing on the conflicts that have arisen to date. This analysis provides some interesting data:

a) Firstly, there is some evidence on the difficulties of appellate contracting authorities to abandon traditional interpretative criteria applicable under previous legislation (criteria that do no longer seem to fit the current parameters of strategic public procurement).

In that sense, a strict interpretation of the requirement to link the reservation to the subject matter of the contract can potentially lead to some legal provisions being ineffective, as recent resolutions have already pointed out.

b) Moreover, it is worth noting that including certain social clauses does not depend on the goodwill of the contracting authorities. They are indeed a legal obligation.

However, poor level of compliance with these requirements and the absence of suitable and effective means to control them constitute an obstacle that must overcome.

c) Paradoxically, most conflicts related to reservation of contracts arise from third-sector organizations themselves, which sometimes excluded from being their beneficiaries under current legal requirements. In this respect, we analyze the underlying arguments that have been put forward in these conflicts and the legal doctrine stated in each case.

This article stresses the importance of overcoming a purely budgetary understanding of public procurement in order to apply the comprehensive approach adopted by 2014 Directives, which entails acquiring goods and services with the best quality-price ratio. Indeed, as strategic public procurement it´s closely related to the principle of efficient use of public funds, the economic value of a contract shall not only include its price but all its different elements.

We claim that the reservation of contracts does not constitute an exception to general rules but a form of positive discrimination based on the aforementioned conception of strategic public procurement, as well as on the general interest, which is one of the guidelines for administrative action. Therefore, we do not consider reservation of contracts as an exception to competitive tendering. On the contrary, despite their more or less limited number, entities still have to compete even though they have to meet some additional requirements.

The European Commission has noted that the possibilities offered by strategic public procurement have not been sufficiently used yet. It claims that more efforts shall be made as public procurement is a “crucial instrument” to deliver policies that promote the creation of a fairer society based on equal opportunity, sustainable economic growth and wide market participation, while providing for sustainable public finances [Communication “Making Public Procurement work in and for Europe”, COM (2017) 572 final].

The latter requires designing standardized control mechanisms that are appropriate to their specific monitoring aim. Those mechanisms shall operate at three different levels;

  1. Controlling compliance with LPSC and, in particular, with its strategic goal to serve public policies of different kinds.
  2. Controlling compliance and enforcement of the provisions stated on the specific public procurement documents (them being the “law governing the contract”).
  3. Controlling the effects derived from any contract in light of the strategic goals pursued in each case.

As far as the reserved contracts is concerned, public authorities should verify both the compliance with the percentage established for each contract and the effect of the reservation on the employability of those groups at which it was aimed. This analysis is particularly important when public authorities can choose between different organizational options (both contractual and non-contractual), according just to criteria of “good governance”.

Contratación pública socialmente responsable: la exigencia de un salario mínimo como condición especial de ejecución

Beatriz Gómez Fariñas

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La contratación pública se ha revelado en los últimos años como una herramienta esencial para fomentar determinadas políticas públicas de carácter social. El fuerte impulso que su dimensión estratégica ha recibido a nivel legal y jurisprudencial hace que sea posible exigir a las empresas que operan en el mercado el cumplimiento de un determinado estándar en materia social en las distintas fases contractuales. El objetivo de este trabajo es analizar la inclusión de consideraciones sociales como condiciones especiales de ejecución del contrato y, en particular, dar cuenta de la posibilidad de emplear este mecanismo para garantizar el pago de un salario mínimo.

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SOCIALLY RESPONSIBLE PUBLIC PROCUREMENT: THE REQUIREMENT OF A MINIMUM WAGE AS A PERFORMANCE CONTRACT CONDITION

Public procurement has been traditionally understood as a simple mechanism through which contract authorities purchase the goods and services they need in order to develop their functions properly. However, in recent years the conception and foundation of public purchases have undergone a major transformation. The importance of this sector makes it a powerful legal tool to promote –in an indirect and complementary way– social, environmental and innovation objectives. This strategic use of public procurement channels the behaviour of economic operators towards sustainable business models that allow a better realisation of general interests. An appropriate use of this large amount of resources is undoubtedly one of the most effective market intervention techniques.

The inclusion of social considerations in public procurement regulations and practices is not new. The European Union has stressed in several occasions the need to make a strategic use of public procurement through various soft-law documents. Even though the 2004 Directives already mentioned this possibility, the adoption of a new package of Directives in this field in 2014 has been decisive in the consolidation process of the strategic public procurement. In that sense, Directive 2014/24/UE identifies the use of public procurement in support of common social objectives as one of its fundamental purposes and encourages the Member States to embrace a smart, sustainable and inclusive model of public purchases.

In the Spanish legal system, the legislator has made a firm commitment to move towards socially responsible public procurement. The new Public Sector Contracts Law considers the transversal and mandatory inclusion of social and environmental criteria in all procurement procedures, provided that they are linked to the subject-matter of the contract and respectful of the core principles of public procurement. In particular, the promotion of public policies through this sector should necessarily be reconciled with another of its priority objectives, as the guarantee of broad competition in the market.

According to the Spanish law, the inclusion of such criteria can take place throughout the different stages of the procurement procedure. However, the most appropriate moment to require compliance with certain social standards is the execution stage of the contract. Their configuration as performance conditions means that all tenderers must undertake, when submitting their tenders, to comply with a number of requirements relating to the manner in which the provision is to be performed. Unlike in the case of selection criteria and contract award criteria, which are likely to limit significantly the rights of tenderers, this mechanism has a limited impact on competence and ensures the effectiveness of the equal treatment principle. In fact, the Spanish law states that any tender for a public contract must include –at least– one social, environmental or innovation-related performance condition.

In any circumstances, the contracting authority should analyse the convenience of including these conditions in each case and assess their impact on the rights of the economic operators. Not all public contracts allow the inclusion of social criteria, but this possibility will mainly depend on the nature of the provision and the way it is designed. The admissibility of the performance conditions is subject to the compliance with some requirements. On one hand, they should be linked to the subject-matter of the contract; that is to say, their inclusion should be directly related to the provision or its production process. On the other hand, they need to be duly indicated in the call for competition and in the procurement documents, so that companies interested in the tender are aware of their existence. Finally, they have to observe the principles of equal treatment, non-discrimination and proportionality.

The effectiveness of the strategic dimension of public procurement to a large extent depends on the correct performance of the provision. The contracting authority must check that the contractor complies with all the conditions laid down in the contract and, in particular, with those concerning social aspects. For that purpose, a series of indicators should be established to measure the real impact of procurement on the specific public policy that it is intended to promote. Moreover, the procurement documents have to state clearly the consequences that the breach of this commitment will have for the contractor, such as the imposition of penalties or the termination of the contract. Otherwise, socially responsible public procurement would not be a reality, but a missed opportunity.

The possibility of using public procurement in order to safeguard workers’ rights and fight against job insecurity has generated an intense discussion. Requiring the contractor to pay a minimum wage to the staff assigned to the performance of the contract has been criticized due to the risk of interference with the right to freedom of enterprise. However, the jurisprudence has taken an increasingly favourable position to the admission of such conditions. Initially the Court of Justice of the European Union considered that this measure constituted a disproportionate restriction of the fundamental freedoms provided for in the Treaty on the Functioning of the European Union and, therefore, was not in conformity with European law. But over time the Court has left this restrictive approach behind and come out in favour of the use of public procurement to fight against the wage inequality in the RegioPost case. Nevertheless, the possibilities and limits of this measures have not yet been clarified. The outcome of this approach for the Spanish legal system has been a lack of consensus among the administrative courts for contractual appeals, which creates uncertainty for the various participants in the procurement procedure.

Contratación pública responsable. El caso de la Junta de Castilla y León

Virginia Bragado López, Noelia Muñoz del Nogal y Vicente Luis Enciso de Yzaguirre

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La Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, que transpone al ordenamiento jurídico español las Directivas del Parlamento Europeo y del Consejo 2014/23/UE y 2014/24/UE, articula los medios para establecer y diseñar criterios de adjudicación que permitan “obtener obras, suministros y servicios de gran calidad, mediante la inclusión de aspectos cualitativos, medioambientales, sociales e innovadores”.
Las administraciones públicas han comenzado a adaptarse a la Ley y resulta de interés poder conocer el grado de cumplimiento.
En este sentido, analizamos el comportamiento de las condiciones de contratación de la Junta de Castilla y León mediante el análisis comparativo de una muestra aleatoria de los pliegos de contratación emitidos desde 2016 a 2018.
Tomaremos como base el Acuerdo 44/2016, de 21 de julio, de la Junta de Castilla y León, y utilizaremos como referencia, el elenco de indicadores planteados por Gutiérrez Ponce, Nevado Gil y Pache Durán.

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PUBLIC PROCUREMENT RESPONSIBLE. THE CASE OF THE JUNTA DE CASTILLA Y LEÓN

Law 9/2017, of November 8, on Public Sector Contracts, which transposes the Directives of the European Parliament and of the Council 2014/23 / EU and 2014/24 / EU into Spanish law, as indicated in its preamble deals with «to achieve greater transparency in public procurement, and to achieve a better value for money».

The means are articulated to be able to establish and design award criteria that allow “to obtain high quality works, supplies and services, specifically through the inclusion of qualitative, environmental, social and innovative aspects linked to the object of the contract” and, in addition, allow use “public procurement as an instrument to implement both European and national policies on social, environmental, innovation and development”.

Public administrations have begun to adapt to the Law and it is of interest to be able to know the degree of fulfillment of the ambitious objectives that it poses.

In this sense, throughout the article we analyze the behavior of the contracting conditions of the Junta de Castilla y León through the comparative analysis of a random sample of the contracting documents issued in the period 2016 to 2018 to establish the degree of adaptation to the criteria established by the Law.

For this we will take as a basis the contents of the Agreement 44/2016, of July 21, of the Junta de Castilla y León, which approves binding guidelines for the contracting bodies of the General and Institutional Administration of the Community of Castile and León on the incorporation of social aspects in hiring and we will use as a reference, among others, the list of ethical indicators recently raised by teachers Gutiérrez Ponce, Nevado Gil y Pache Durán.

The regulations which apply to public contracts, both European and Spanish, and also the regional one corresponding to the Autonomous Community of Castilla y León argue that public procurement must be an essential tool to implement both European and national policies in social and environmental matters and innovation and development, not only through the object of the contract, but through the inclusion in the contract documents that establish conditions of social contracting of an environmental nature and that favor innovation and development.

In the case of the Autonomous Community of Castile and Leon, from the normative point of view, there is a voluntary policy when it is stated that it is necessary to align with the criteria established by the European Union but it is, rather, a I wish that it is not completed: it has only been legislated to date in relation to the inclusion in public contracts of clauses that we can call social, ignoring environmental and those that favor innovation and development.

Public Administrations have systematically breached the deadlines set by Directives 2014/23 / EU, 2014/24 / EU and 2014/25 / EU for transposing them to both national and regional legislation.

We have been able to verify that an efficient procedure to establish a judgment on the degree of compliance with a legal norm by a public administration is: first, to establish a number of theoretical indicators that may reflect compliance with partial aspects of a specific norm; secondly, to carry out a search for the presence of the aforementioned indicators in the actions of that administration that are subject to these regulations and, finally, to measure the degree of compliance in a percentage way by relating the indicators complied in relation to all the indicators noted.

This methodology is not intended to assess the importance of possible breaches, since we are aware that the severity of the breach of each indicator will be different, but to establish a judgment on the rigor of each organ of the executive branch regarding compliance with the rules emanating from the corresponding legislative branch in each specific area.

From these statements we can assure that:

1. There is little regulation by the Administrations and Organs of the Autonomous Community of Castilla y León. One of the main problems encountered in carrying out the study is the lack of environmental legislation in the field of Castilla y León. Some environmental indicators have been found but derived from the object of the contract itself or from a certain compliance with national laws.
2. The Autonomous Community of Castile and León must legislate in relation to the transposition of European and national standards in relation to the inclusion of contractual conditions of an environmental nature to progress in the line of an increasingly responsible public procurement.
3. Likewise, the Autonomous Community of Castilla y León must modify its legislation in order to accept the provisions of European and national regulations regarding the inclusion of clauses that favor innovation and development in order to obtain a responsible public procurement.
4. The usefulness and effectiveness of the indicators proposed by Gutiérrez Ponce, Nevado Gil and Pache Durán is evident in the article mentioned since they widely reflect the current situation of the implementation of this type of clauses in public procurement in the Autonomous Community of Castilla and León; although they do not develop indicators related to innovation and development.
5. Entering in detail the results of the study, the result of the application of the aforementioned indicators in the public tenders that were part of the selected sample:
a) The criteria that are currently being used to implement social and environmental aspects, reflected in the degree of compliance with responsible contracting in Castilla y León, it can be concluded that the current legislative modification has not had the desired impact: before the legal modifications the degree of compliance according to the indicators was 14% and after them it is 13% in its total calculation.
b) If we stop at the results of the social indicators, reflected in the degree of compliance with responsible contracting in Castilla y León, both before the Law and after its publication, it is 15%, so in this variable it has not produced any improvement.
c) If we analyze the results of the environmental indicators, reflected in the degree of compliance with responsible contracting in Castilla y León before the Law was 13%, after the Law it is 8% so in this variable the degree Compliance is lower: the sensitivity and commitment in environmental matters is not reflected in current regulations and does not favor responsible public procurement.
6. Results obtained in the present investigation come to corroborate that there is still a long way to go in order to talk about a responsible public procurement in Castilla y León. For this, public procurement must deepen aspects of social matters and initiate the environment, the innovation and the development of future tenders.
7. The aspect related to innovation and development is completely abandoned from both the legislation and the indicators analyzed, only two variables, social and environmental, are being used, when in reality the variables related to innovation and development should be included.
8. In relation to future lines of research, we believe that the development of indicators related to innovation and development is necessary. As well as the extension of the sample, including these indicators, for the contrast of the methodology used in this investigation.

Contratação pública responsável e autonomia: para uma inclusão social das pessoas com deficiência

Melanie Oliveira Neiva Santos

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En la presente comunicación se analizará el fomento de un trato igualitario y la integración de las personas con discapacidad, dentro de un modelo social de discapacidad, establecido por la Convención de las Naciones Unidas sobre los Derechos de las Personas con Discapacidad. Es objeto de la presente exposición la contratación pública responsable y la protección de la autonomía individual, como factores de superación de la pobreza y la inclusión de las personas con discapacidad.
Sobre la base de la Convención e de la Estrategia Europa 2020, se examinará la Directiva 2014/24/UE* y su incorporación al orden jurídico portugués en el Código dos Contratos Públicos y la tutela de la autonomía de la persona en el Código Civil. Finalmente, se presenta un resumen de la inclusión social en análisis.

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SOCIAL PUBLIC PROCUREMENT AND INDIVIDUAL AUTONOMY: A PATH FOR SOCIAL INCLUSION OF PERSONS WITH DISABILITIES

The United Nations Convention on the Rights of Persons with Disabilities, adopted in New York in 2006, affirms its vocation to promote an approach to the profound social disadvantage of people with disabilities, behavioural and physical barriers, in the several domains of life in society and thus experience conditions of extreme inequality. This is a shared reality in developed and developing countries, resulting in a risk of poverty and a factor of social exclusion.

At European level, the Europe 2020 Strategy has set three priorities: smart growth, sustainable growth and inclusive growth. The mainstays of the strategy are raising the employment rate, improving the conditions for research and development, cutting greenhouse gas emissions, reducing early school dropouts, increasing higher education graduates and promoting social inclusion through reducing the number of people at risk of poverty and social exclusion. These goals are interlinked and are representative of the three priorities established. For example, improving educational attainment levels will contribute to employability and raising employment rates will, in turn, contribute to reducing poverty.

In order to achieve the stated priorities set for smart, sustainable and inclusive growth, the strategy includes, among other initiatives, the “European Platform against Poverty”, so that social and territorial cohesion ensures a wide distribution of the benefits of growth and employment, and so that people in poverty and social exclusion condition can live in dignity and actively participate in society”. The Council statement on the European Year of Fight against Poverty left the challenge of protecting the rights of future generations by creating an equitable, participatory and supportive society.

As Philip Alston stresses, solidarity is not enough, and we need different strategies that involve primarily listening to those in situations of extreme inequality. It is therefore necessary to give political visibility to poverty, mainly through economic analysis and to go beyond the discourse marked by moral values inherent to the fight against poverty.

Inequality has a negative impact on economic development, and this is an instrumental argument that could and should be used in political discourse.

According to Eurostat, in 2018, 21.7% of the European population, which amounts to 109 million people, was at risk of poverty or social exclusion. This risk was higher among women (when compared to men), for young adults and for those with long standing health problems. In 2018, the risk of poverty and social exclusion was significantly higher for people with long standing health problems (34.8%), compared to those without such limitations which represent 19.2%.

According to the European Commission, “people with disabilities or those suffering from serious chronic diseases are often faced with enormous economic and social difficulties (…): around 6.5 million people at risk of poverty or exclusion report being persons with some kind of disability.”

In the case of people with disabilities –disabilities understood in the broad sense adopted in the Convention– the risk of social exclusion and poverty is therefore particularly noticeable.

Considering the goals and principles set out in the Convention and in Europe 2020 Strategy, we aim to analyse, firstly, the Directive 2014/24/EU and its transposition into the Portuguese legal order in the Public Contracts Code, secondly, individual autonomy in the new regime of the accompanied adult. Finally, we consider the scope of the policy regarding social inclusion of persons with disabilities in Portugal through the analysed legal institutes.

Focusing our analysis in this particularly disadvantaged group, we will consider two recent changes in the Portuguese legal system. On the one hand, the transposition of Directive 2014/24/EU into the Public Contracts Code, and on the other, the change in the legal regime of the so-called disabilities of adult individuals in the Civil Code, by implementing a new paradigm, guided by the primacy of individual autonomy. This new model, established for the accompanied adults, is a cornerstone on the path to social inclusion of people with disabilities. Without individual autonomy and within a replacement model, these individuals have no freedom of choice, nor to decide or to contract.

The contract is the ultimate source of legal relations and the strongest expression of private autonomy and personal development in its many aspects, namely the right to work. The right to work is enshrined in article 58º of the Portuguese Constitution and hence has constitutional protection. As the European Commission points out, “a job is the safest way out of poverty for all those who can work.”

The new paradigm of the primacy of the individual and his autonomy is a major mainstay for social economy models to lead to inclusive growth based on equality and dignity of people with disabilities. It is about respecting the capacity that one is (still) carrying.

It is therefore in this interaction of social economy and law that we will support our analysis, based on the new social model of disability contained in the Convention. Thus, we will explore two interconnected aspects: public procurement as an instrument of social policy and the protection of the autonomy of people with disabilities as a requirement for a policy of equality and social inclusion.

Through our analysis we will conclude that several social policy measures were indeed adopted in the Portuguese Public Procurement Code. It is, however, arguable whether these measures have, so far, produced positive impact on social inclusion.

The new role that social enterprises could play depends on the openess of economy to its participation, through the available mecanisms. Further consideration must be given to social and public awareness of its role and positive impact. The path for suistanable growth through responsible public procuremnent has been marked out. It is now necessary to promote a better use of public procurement for social purposes. As to individuals with some kind of disability and within the new framework for the acompanied adult, the new legal terminology, that abandons stigmatyzing concepts, and adopts a more flexible regime adapted to each individual´s needs, will certainly promote equality and social inclusion.

The new model, which respects individual rights and is guided by minimal intervention to the strict necessity of measures to give support to individuals, promotes social inclusion. Time will proof its rightfulness.

Cooperativas de recolección de residuos sólidos y ofertas públicas: un estudio de caso brasileño

José Francisco Siqueira Neto y Daniel Francisco Nagao Menezes

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El objetivo de esta investigación fue analizar la exención de licitación para la recolección selectiva por parte de asociaciones y cooperativas formadas por personas de bajos ingresos como resultado de los Objetivos de Desarrollo Sostenible (ODS), que se proclamó en la Agenda 2030. Como resultado, se descubrió que 13 de los 17 ODS propugnados en la Agenda 2030 pueden tener un impacto en la exención de licitación, especialmente porque fomentarán organizaciones colectivas, generando reflexiones sobre la vida de las personas de bajos ingresos que pueden involucrarse en ellas. Además, se observó que la implementación de esta política local de desarrollo sostenible genera desafíos tales como: los intereses de las élites locales y regionales, la ausencia de una política ambiental de desarrollo equilibrada y la incapacidad de la gestión ambiental, así como problemas sociales y económicos en el ciclo de institucionalización de estas cooperativas y asociaciones de trabajadores.

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SOLID WASTE COLLECTION AND COOPERATIVE PUBLIC BIDDING – A STUDY OF BRAZILIAN CASE

The state has a strong purchasing power, not only for its resources, but also for its structural needs. From this it follows that the action of the «consumer state» tends, at the same time, to promote compliance with the demands of the public machine and to foster the economy in general. By highlighting the promotion of the economy, national states finally assume a strategic cycle that seeks to combine sustainability with a focus on local development actions.

In recent years, the State has promoted public policies that tend to expand development initiatives in full collaboration with associations and cooperatives, which operate in various sectors of public interest. One of the main ways of considering sustainable local development occurs through incentives, such as the waiver of tenders in the hiring of these entities to promote the collection, processing and marketing of solid waste.

The purpose of this research is to analyze the tender exemption for selective collection by associations and cooperatives formed by low-income people as a result of the Sustainable Development Goals (SDGs) proclaimed in the 2030 Agenda, while promoting (and looking for carry out) medium and long-range public policies. It is in this sense, for example, that the National Solid Waste Policy (PNRS) of Brazil, established by Law 12.305/2010, specifies in article 8, point IV, that the incentive for the creation of cooperatives or other forms associations of collectors of reusable and recyclable materials become one of the main instruments of this sustainability policy.

At the municipal level, the creation of these entities with the possibility of exemption from bidding promotes sustainability policies, radiating various effects for various social segments, such as access to income by hypo sufficient people, promoting an important aspect of justice Social.

In this context, due to the advent of the legal framework built by the Constitution of the Federative Republic of Brazil of 1988 – CRFB, it is true that the performance of the State in contracting must be subject to moralizing principles, such as isonomy, the search for more effective proposal and, more recently, sustainable national development, as Law 11.445 / 2007 adds to the emblematic Law 8.666/1993.

In addition to the socioeconomic improvements mentioned above, the promotion of rights considered as fourth-dimensional, such as the ecologically balanced environment with intergenerational benefits, favors sustainable purchases. In this sense, if before there was an apparent forgetfulness of the social problems that involve the public procurement process, today, it can be said, there is a regulatory duty imposed on the public manager to promote both social and environmental aspects, as provided in the Article 24, XXVII, of Law 8.666/1993.

From this legal provision, it is possible to contract directly (without tender) associations or cooperatives formed exclusively by low-income people recognized by the government as collectors of recyclable materials for the collection, processing and commercialization of recyclable or reusable urban solid waste, in areas with a selective waste collection system. This legal provision is included in PNRS, article 36, paragraphs 1 and 2, which will be detailed further below.

At the same time, we also consider the impact on sustainable development that the implementation of such public procurement policy can have. This can be seen, for example, in the positive effect on the reduction of plastic and other petroleum products in contact with the soil, the reduction of recyclable waste released on public roads and the consequent improvement in water drainage systems Rainfall, in addition to, of course, the greatest preservation of ecosystems and species. It is in this sense that the text is addressed, seeking to verify what can be contemplated through the exemption of tender in the selective collection of waste by associations or cooperatives.

By the way, it should be noted that the proposed approach presupposes the dialogue between administrative law, public management, the right to the city and sustainable development based on the triangulated legal framework, internally, by CRFB, Law 8.666/93 and PNRS, and abroad, the United Nations International Conferences for the Environment.

To achieve this objective, this essay reviewed the already consolidated work on direct contracting, addressing legislation, doctrine and, slightly, jurisprudence (not only in the courts but also in the Court of Auditors of the Union – TCU); and the treatment given to the subject from an international perspective through the analysis, albeit initially, of international documents and legal systems. Based on this information, an analysis was carried out on the implications and limitations of the research object against the 2030 Agenda.

Consequently, this document was organized in three sections: in the first section, we seek to organize the debate on sustainability, public procurement and its importance in international sustainable development, pointing out the national and local / municipal perspective of this action; the second deals with the confrontation of the tender exemption for selective collection with the SDGs; and finally, the third one addresses the challenges and the possible collaborator presented by associations and cooperatives for the work in the collection, processing and commercialization of these materials.

The conclusion is that direct contracting through the exemption of the tender for the selective collection of waste by the members / associates of the cooperative, in addition to being considered by the National Solid Waste Policy as an instrument to promote development sustainable, is a viable way to reduce social problems. Issues such as extreme poverty, child labor and family work in garbage collection, for example, will have a reduction in incidence by adopting this model locally and, of course, gains in environmental preservation.

When analyzing the objectives of sustainable development in relation to the exemption of bidding to contract associations or cooperatives with low-income people, he realized that 13 of the 17 SDGs in the 2030 Agenda could be partially contemplated or debated from direct contracting and incentive consequent for collective organizations to take place, which would lead to an improvement in the quality of life of these hyposufficient people involved.

However, despite its obvious advantages, the implementation of a sustainable local purchasing policy in Brazil has several obstacles. In this scenario, the political, structural
/ organizational, economic and social aspects stand out. In view of the above, and the potential that the consumer state has undeniable, it is necessary to expand the vision in public management to aspects of sustainability in public administration actions, as the so-called pioneer nations in purchasing have done. sustainable public In Brazil, the road is already, to some extent, open, pointing to mechanisms that integrate the combined efforts of society and the state itself, in order to honor the public policies that, in a way, contribute to the preservation of the environment and reduce the suffering of the hyposufficient population in Brazilian cities.

Otros artículos

María José Senent Vidal (Coordinadora)

Las sociedades cooperativas agroalimentarias ante la aplicación de las normas de competencia

Encarnación García Ruiz

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Las sociedades cooperativas agroalimentarias están sometidas a las normas de competencia, tanto nacionales como europeas. Los expertos advierten que éste es uno de los retos a los que deben de enfrentarse estas sociedades a la hora de competir en el mercado. Sin embargo, hay pocos estudios doctrinales sobre qué implicaciones supone, para el sector cooperativo agroalimentario, estar sometido a un control cada vez más estricto por parte de las autoridades de competencia. Nuestro propósito es estudiar cómo se aplican las normas de competencia a este sector, así como mostrar la dificultad que presenta establecer los límites de compatibilidad entre los dos conjuntos normativos: el que regula al sector agroalimentario y el que regula al sector de la competencia. Muestra de ello son los cambios que se han ido produciendo en los criterios de política jurídica en cuanto a la interpretación convencional del Derecho de la competencia aplicado al sector agroalimentario.

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THE AGRI-FOOD COOPERATIVES BEFORE THE APPLICACTION OF COMPETITION LEGISLATION

It is a fact that cooperatives «play an essential role in the economy by combining prof- itability with solidarity, creating quality jobs, reforming social, economic and regional cohesion and generating social capital» . But it is also true that the productive agri-food sector is organised in a very high percentage in a very atomised way that requires national and European protection standards that minimise the asymmetry between the productive sector and the distributive sector mainly. It is not surprising that all public and private, national and European institutions recommend that agrifood companies adopt different associative formulas that allow them to grow in size in order to improve the concentration and organisation of supply, so as to be able to face the challenges demanded of internationalisation, competitiveness and innovation. This means that they are exposed to the application of national as well as European competition rules as any other society. An issue that has been discussed by some doctrinal sectors in favour or against the fact that the agrifood sector is subject to competition rules. Since, on the one hand, these companies are required to seek formulas for integration and concentration, allowing them to grow in size and meet the pending challenges of inter- nationalization, competitiveness and innovation that are demanded of them. Proof of this are the different associative figures provided in the legislation, such as, for example, the Priority Associative Entities, included in Act 13/2013, of 2 August, on the promotion of the integration of cooperatives and other associative entities of an agri-food nature. This law is intended to promote the competitiveness, modernization and international- ization of these associative entities. On the other hand, the competition rules apply to them with all their rigour.

This has been our purpose, to study how the competition rules have been applied to this sector and to compare how the control that the competition authorities can carry out on them affects the integration and restructuring of these companies, as well as to show the difficulty involved in establishing the limits of compatibility between the two sets of rules that sometimes seem irreconcilable, the one that regulates the agrifood sector and the one that regulates the competition sector. This difficult interrelationship has led to some changes in legal policy criteria in terms of conventional interpretations of competition law applied to the sector, which we will address in the following pages. As well as the need to enact rules that seek to minimise market imbalances between suppliers and buyers, such as Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain.

To this end, we have carried out a theoretical and practical study of the anticoncurrential practices in which agro-food cooperative societies have been involved, on the one hand, economic concentrations and, on the other hand, unfair practices. Thus, in the following section, we record the complexity of the agri-food sector due to its specificity, which distances it from other cooperative sectors and makes it more sensitive to the requirements of competition rules; for the third section, to undertake a study of the economic concentrations of these cooperative societies from the perspective of competition rules, placing «emphasis» on the conceptual difference between what the cooperative sector understands by concentration and the economic concentrations themselves provided in the competition rules; to continue in the fourth section with the practical study of an economic concentration file of one of the most relevant sectors of our agri-food industry, that is, the oil sector. In the following section we deal with unfair practices, where we leave a record of the multiple sanctioning proceedings that the sector has suffered due to the lack of clear harmonisation between both regulatory sectors. In the last section, we conclude with our proposed objective, which was to ascertain the impact of competition rules on the cooperative agri-food sector.

In short, the agrifood sector lacks clarification of the specific derogations established by the Common Organisation of Agricultural Markets, so that associations of producers organised mainly in agricultural cooperative societies know what actions they can take without infringing competition rules. There is no uniform criterion for the application of the competition rules in this sector and their application is characterised by excessive casuistry which creates a significant degree of uncertainty, not only for economic operators but also for public administrations. Without ignoring the efforts made by all the authorities involved, it would be useful to further clarify how and to whom the competition rules apply in order to improve the efficiency and competitiveness of the agri- food sector.

La mediación, nuevo instrumento para el consenso al alcance de las cooperativas valencianas

Carolina Sanchis Crespo

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El Reglamento de Mediación, publicado por Resolución de 22 de noviembre de 2018 del presidente del Consejo Valenciano del cooperativismo y conseller de Economía Sostenible, Sectores Productivos, Comercio y Trabajo, supone un gran paso adelante en la administración de las cooperativas. En el ADN de estas instituciones está la autorregulación y el modo más coherente de autogestionarse cuando surge un conflicto, es acudir a la mediación. Al otorgarse recíprocamente los mediados el acuerdo de mediación, y no ser por tanto, imposición de un tercero, es mucho más factible que lo pactado se cumpla de manera voluntaria.
En el presente artículo se explica la nueva normativa de mediación al alcance de las cooperativas con especial detalle en las tres fases del procedimiento: la fase preparatoria inicial, la fase de consolidación y desarrollo y la fase de terminación.

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MEDIATION, A NEW TOOL FOR CONSENSUS WITHIN THE REACH OF VALENCIAN COOPERATIVES

The existence of conflicts between people or groups of people is something inherent to the human being. Being aware of the value of the controversy as a stimulus for the overcoming and opportunity for change, the truth is that, for the society to advance, the disagreements must be solved gradually.

For the conflict to emerge, the parties’ positions should be opposed, even if interests may coincide totally or partially. The key is how the situation is perceived by the parties: if it is negatively perceived as irresolvable, a conflict will arise. On the contrary, if they foresee, from a much positive perspective, that despite of their opposed positions, they can reach an agreement by giving each of them something in exchange, the controversy will be on its path to be solved.

Mediation is a useful tool for the resolution of conflicts that has important advantages in comparison with other tools such as arbitration or judicial processes.

Mediation has the characteristic of being a procedure essentially voluntary, from its beginning and during all the time that proceedings will last. Parties always have the option of quitting mediation without the acquiescence of the other parties to be a requirement.

In mediation, the parties are the ones involved in the resolution of the controversy generating themselves a successful ending to the crisis produced by the disagreement. For this reason, the agreement reached through mediation will unlikely be breached given that parties have voluntarily accepted that solution without it having been imposed by a third party. That is why it is said that mediation is the most civilised mode of ending with a disagreement.

Mediation seems a tool especially meant to resolve controversies where cooperatives are involved. In the very essence of these entities we find self-regulation. For this reason, the most coherent mode of self-regulation when a conflict arises, is clearly to go to mediation. Consequently, it has been a right choice that the Generalitat Valenciana through the Department of Sustainable Economy, Productive Sectors, Commerce and Labour, had carried out the development of the Regulation on Mediation of the Valencian Cooperativism Council –together with those of Conciliation and Arbitration–, through the order of the 22nd November 2018 of the Official Journal of the Generalitat.

The mediation procedure is made up of three stages: an inception phase, a consolidation and development phase and a completion phase.

The inception phase can start in three different ways: by ad hoc mutual consent or previous agreement between the parties, upon the initiative of one part, or by judicial or arbitration referral. Once the procedure has started, the mediator is named from a list previously tailored by the Valencian Cooperativism Council.

The mediator will be neutral, impartial and independent. He/she must refrain from intervening when a conflict of interests arises with any of the parties. He/she is obliged to reveal any circumstance that could affect to his/her impartiality.

The Valencian Cooperativism Council provides to the parties with a mediation request form that is included in the article.

In the consolidation and development phase is where mediation really starts, since until the constitutive act is not signed and accepted, the procedure is not properly initiated. That document shows all the extreme aspects related to the controversy, as well as the parties’ willingness –now already mediated– of reaching an agreement.

The Valencian Cooperativism Council also offers to the mediated parties one mediation constitutive and acceptance act form that is included in the article.

The mediation procedure will move forward through the successive progressive sessions that will normally take place jointly, but they can also be private.

The joint sessions will be the ordinary way of acting. In them, the mediator party, will meet with all mediated parties simultaneously, so that each of them will have full information of what has been discussed.

In the private sessions –known as caucus in the jargon of mediation– the mediator will meet only with one of the mediated parties. The others will know that that session has taken place but will not know nothing about its content. In order to keep the needed equidistance, the mediator party will also meet privately with the other mediated parties individually.

It may be surprising that in a procedure where the parties themselves look for an agreement, private meetings are hold the content of which is secretly kept. However, powerful reasons exist for this to happen. One of the main reasons relates with the so-called MAAN. The MAAN consists in the best solution parties can obtain without the need of mediation. When parties look for mediation is because they seek for something better than that option. For this reason, the progress of the mediation procedure should be made without losing sight of the MAAN value. That will allow the party to know when going for mediation is not worthy and when it pays off. The MAAN acts as a light signal showing until which point you can give, and from which point it is not convenient to do so.

The completion phase may put an end to mediation in several ways: with total or partial agreement, with total or partial agreement judicially approved or with total or partial agreement converted to public deed.

In the first mode, parties are tied with the same bond of a contract to what they have agreed with. Invalidity action may only be exerted for the same causes that can invalidate contracts.

In the second one, we will face a title with enforceability. If necessary, we will execute it with the rules provided by the LEC in such cases.

In the third case, when it becomes public deed, we will also face a tittle with enforceability and we should go to the LEC norms that, in such case, have peculiarities of difficult adjustment, that doctrine has already brought to light.

The Valencian Cooperativism Council also offers to mediated parties a termination Act form of mediation that is included in this article.

To conclude what has been treated, we should point out that we consider a great decision this Regulation on Mediation in cooperativism. This is a regulation that was needed and that we hope will boost this alternative dispute resolution mode in the area of Valencian cooperatives and for their benefit.

Comentarios y notas de jurisprudencia

Isabel Rodríguez Martínez (Coordinadora)

Comentario a la Sentencia del Tribunal Supremo, Sala de lo Social, de 24 de enero de 2017, unificación de doctrina (RJ 2017, 928)

Miriam Monjas Barrena

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Ejercicio de la acción individual de responsabilidad contra el Consejo Rector de una sociedad cooperativa, en una situación de “cierre de facto”, sin previa disolución y liquidación. Comentario a la STS, Sala 1ª, de 27 de febrero de 2017

Cecilio Molina Hernández

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Las cooperativas de transporte, socios colaboradores y falsas cooperativas. Comentario a la Sentencia del Tribunal Supremo nº2263/2018, de 18 de mayo (Social)

Gemma Fajardo García

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Reconocimiento de la prestación por jubilación anticipada involuntaria al socio de una cooperativa de trabajo asociado. Comentario a la Sentencia del Tribunal Supremo, Sala de lo Social, de 17 de septiembre de 2019, unificación doctrina (RCUD 1741, 2017)

Mª José Arnau Cosín

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Reseñas de jurisprudencia del Tribunal Supremo sobre entidades de Economía Social

Julio 2018 – Diciembre 2018 / Jesús Olavarría Iglesia

Texto completo

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Índice sistemático

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Índice cronológico

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Reseñas de legislación sobre entidades de Economía Social

Junio 2019 - Noviembre 2019 / Gemma Fajardo García

Legislación Estatal

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Legislación Autonómica

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