Lex localis - Journal of Local Self-Government_11(1)_January

L EX LOCALIS - J OURNAL OF L OCAL S ELF -G OVERNMENT D. Senčur Peček, S. Laleta & S. Kraljić: Labour Law Implications of Outsourcing in Public Sector 715 high-quality performance of the work of the public body work) can exceptionally be given to external service providers, in accordance with provisions on public procurement. The condition is, however, that security risks and financial profitability be previously assessed (Article 3 (5) of PSA). Two years ago, in December, Trade Union of civil and local servants and clerks of the Republic of Croatia has submitted to the Constitutional Court of the Republic of Croatia a proposal for a judicial review (i.e. examining the legality and constitutionality) of the Decision on the prohibition of new employment in governmental bodies (the so-called decision on the “silent outsourcing”). However, the Constitutional Court has rejected the proposal with the explanation that this question does not fall under its jurisdiction. 46 In Slovenia, local self-government institutions, state bodies and other entities governed by public law (institutions, agencies, etc.) are likewise encouraged to delegate ancillary activities to outside contractors with a view to reducing costs. Data show that in the public sector the outsourcing is the most widespread in the cleaning activity (which is entirely assigned to outside contractors in some parts of the public sector) and is also common in maintenance and information services, but is only to a lesser extent established in accounting services. 47 A review of public procurement procedures indicates that it also occurs in the activities of surveillance, transport, the provision of food and others. 48 In the public sector, a contractual transfer of services to outside contractors may only be realised through the public procurement procedure. The field of public procurement is governed by Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC 49 and Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, 50 which were implemented into Slovenian legal order with Zakon o javnem naročanju (ZJN-3)- Slovenian Public Procurement Act (PPA-3) 51 and into Croatian legal system with Zakon o javnoj nabavi - Croatian Public Procurement Act (PPA) 52 . These directives contain no provisions that would address the question of the legal status of employees in the event of outsourcing, even though European Trade Union Confederation (ETUC) requested in its comments on the proposal of the directives that they should explicitly specify that a contractual delegation of the provision of services by a public entity constitutes a legal transfer within the meaning of Directive 2001/23/EC. 53 A question was also raised by the theory of the role of Directive 2001/23/EC in public procurement procedures (Barnard and De Baere, 2014: 33).