Within the European Commission and the European Parliament there is a discussion ongoing on limiting the number of subcontracting levels and extending the liability to the entire subcontracting chain. The idea is that, by doing so, labour law problems can be avoided.

The European Landscape Contractors Association (ELCA), representing national associations of landscape garden companies in 23 EU member states and with associate representation in Canada, Japan, Norway, Saudi-Arabia, Singapore, Switzerland, Türkiye and the United Kingdom, has made an orientation on this discussion and comes to the following considerations:

Our role in the value chain
Landscape garden companies often work in subcontracting relations for example in taking care for planting trees in a larger road construction project or install green roofs and facades on buildings. At the same time landscape garden companies work with subcontractors themselves when they want to hire extra capacity for specific jobs like tree pruning at arborists or extra workers during seasonal peeks.

Landscape garden companies are to be characterized as small and medium sized companies who can, depending on the size and complexity of the project or the needed capacity and expertise, either be main contractor or subcontractor. Their focus is on the creation and maintenance of greenery and nature-based solutions in the private and public domain and on/in buildings. In their market orientation most of the companies have a scope on local/regional opportunities, the number of national players is limited and only a few work within a European company setting. Although the amount of landscape garden companies is growing all over Europe, we see market concentration in the middle and larger company segments and at the same time more start-ups and a larger group of self-employed in the smaller company segment in the private garden domain and specific activities like tree care and indoor greening.

One of the biggest challenges for the companies, like also in other sectors, is organizing the workforce. We see a higher demand from society to find solutions for climate change, biodiversity loss and pressure on public health. This touches on the essence of the work of the landscape garden sector, which now more and more concentrates on delivering ecosystem services and societal benefits. As a consequence, the sector is working on innovative solutions and dedicated skills and is moving from the end of the contracting chain to being involved at the beginning of the policy-, planning-, and design process of a project. From that point of view our role and position in the value chain is changing.

Subcontractor or main contractor
Looking at the evolving trend in the market and the societal demand towards landscape garden companies, it would be favourable that they have a more prominent position in the preparation and implementation of projects with a nature-based solutions component. Looking at the diversity of projects there can be no one-size fits all approach and that counts also for the idea of limiting the levels of subcontracting. We see more merit in taking nature-based solutions into account at the beginning of the project phase, to involve landscape garden professionals in an early stage of the process by for example market consultation and ‘Bouwteams’ and to divide the project in a way that specific green lots are presented for public procurement. This should be a standard procedure and responsibility for tendering authorities. Depending on the tender that has been put on the market, the landscape garden company can be the main contractor or the subcontractor. ELCA feels that we should leave this to the market instead of putting this into a directive or law.

Solution in division into lots and current EU-labour laws
The motivation for limiting the levels of subcontracting concentrates predominately on tackling labour law problems. As a solution, also extending liability to the entire subcontracting chain has been suggested. We support the starting point that unjust labour conditions in the subcontracting chain must be eradicated. We are however not convinced that limiting the number of subcontracting levels will solve the envisaged labour law problems. We see more merit in looking at the daily public procurement practice in which the division of projects in specific green lots can be a solution to limit the number of subcontracting levels. This is also what we plead for in the current evaluation of the EU Public Procurement Directives. The European Employer’s Institute concludes in a recent study, that there are already several different types of legislative means to address labour law problems in subcontracting chains in existing EU law. From that perspective we would recommend to evaluate and strengthen the existing legislative labour framework, instead of taking initiatives on limiting the number of subcontracting levels and extending the liability in the subcontracting chain.

Conclusion
ELCA supports the aim of tackling labour law problems in subcontracting, but we are not convinced that limiting the levels of subcontracting and extended liability will solve them. We recommend instead to focus on the division into specific green lots in the daily public procurement practice and to make use of the possibilities in the existing laws to prevent labour law problems in subcontracting.

For more information:
Egbert Roozen, secretary general of the European Landscape Contractors Association (ELCA)
phone: (+32) 468 35 11 91
mail: contact@elca.info

ELCA transparency number: 446688050016-05