SOCIAL CLAUSES IN OUTSOURCING PROCESSES. SOCIAL RIGHTS VERSUS ECONOMIC FREEDOMS IN THE PRISM OF THE MULTILEVEL LEGAL ORDER

The aim of the thesis is to study the different provisions included in the notion of social clause and offer an in-depth and systematic analysis of some types of social clauses in the Italian and European Union legal order, their characteristics, their regulation, and the legal interests that are aimed at protecting, as well as their classification in the multilevel legal order. This study is preliminary for the assessment on the legitimacy of such clauses in relation to economic freedoms. Indeed, the application of social clauses is one of the fields in which the contrast between fundamental social rights and economic freedoms emerges most clearly and in relation to which some differences occur in the reconciliation of interests made by the Courts at national and EU level. The most relevant distinction for this research relies on the classification developed by Italian scholars, who, on the basis of contents and interests protected by social clauses, usually distinguish between equal treatment or first-generation social clauses and rehiring or second-generation social clauses. Also the nature of the procurement contract, public or private, may condition the judgment on the legitimacy of social clauses with regard to economic freedoms, due to the different regulations applicable in the two fields and the tension between the protection of competition and social objectives, which historically characterizes the action of the public administration in the field of public procurements. The thesis investigates the legislation and the case law concerning the first- and second-generation social clauses, both statutory and contractual, at European and Italian level, with reference to public and private procurements. From this study, it is clear that there are problems of effectiveness and applicability concerning first- and second-generation social clauses, as well as of conflicting interests: social clauses may hinder the competition, negatively condition the entrepreneur’s freedom to conduct a business, affect the entrepreneurs’ freedom of association, and, therefore, risk to contrast with the constitutional and European provisions protecting those freedoms. In this reasoning, the different levels of protection and the importance recognised to social rights and economic freedoms in the Italian and European Union legal systems, the legal framework generated by their interaction, and the type of balancing in the two legal orders must be considered. In the search for a reasonable balance between economic freedoms and social rights, the thesis explores whether the various interests protected by the different types of social clauses can fall within that notion of employment protection which constitutes an overriding reason relating to the public interest justifying a limitation of the economic freedoms and investigates to what extent the prevention of unfair competition and social dumping, the protection of workers’ rights and employment stability can justify a restriction of fundamental economic freedoms. In conclusion, the aim of the study is to investigate if it is possible to achieve a fair balance between opposing interests, social rights, on the one hand, and economic freedoms and free competition, on the other, and comprehend how the interests contrasting with them in relation to the case of social clauses can be balanced