The judicialisation and politicisation of public procurement across Europe
Karen Jaehrling, Institute for Work, Skills and Training, University of Duisburg-Essen
Aristea Koukiadaki, School of Law, The University of Manchester
The way in which public procurement policies are designed and implemented is increasingly central to our understanding of regulating labour standards along public supply chains, where workers can be subject to inferior pay and conditions. Yet the field of public procurement is a good illustration of the ‘long shadow of European case law’ (Schmidt 2018), whereby CJEU rulings serve to constrain the choices and agency of policy makers at the domestic level over the long-term. Most notably the CJEU’s ‘Rüffert’ ruling in 2008 imposed severe restrictions on procurement policies within member states that required private contractors for public services to guarantee minimum working conditions to their employees. Similar to other rulings of the ‘Laval quartet’, Rüffert spelled out the general principle advanced by the CJEU that, even in areas that are still the prerogative of national law, domestic policies must not undermine the four fundamental freedoms of the European Single Market (in particular cross-border competition).
Recently however, several studies have provided evidence of diverging approaches within member states that seek to limit the real world effects of the CJEU rulings and by extension the dominance of EU competition law over domestic policy (e.g. Koukiadaki 2014; Bruun/Ahlberg 2014, Seikel 2015; . Sack/Sarter 2016; Jaehrling et al. 2018, Hofmann 2018). Subsequent rulings such as Regio Post, combined with the latest reform of the EU Public Procurement Directives (adopted in 2014), further challenge the broadly market-liberal precedent established by CJEU rulings, and open several channels through which public authorities can show greater consideration for social standards in external contracts. Thus, the ‘judicialisation’ of public procurement by the CJEU has not prevented, but rather has spurred the ‘politicisation’ of a previously largely administrative field.
Yet the new Directives and rulings did not simply supersede pre-existing law and legal interpretations; rather, they have contributed to a process of ‘institutional layering’ whereby social considerations are ‘added’ to economic and legal considerations within the same overarching institutional framework that broadly continues to emphasise market competition and choice. This potentially sends new signals to the market about both the desired outcomes and competition criteria pertaining to public contracts (not least because of the largely discretionary status of social requirements under the revised Directives). It also sets the scene for a second round of struggles at the domestic level about how public procurement can be redesigned to take account of both economic and social objectives, while remaining compliant with EU law.
The proposed workshop assembles contributions from several countries (UK, Sweden, Germany) that analyse these struggles around domestic policies and their interplay with supranational (EU) laws and legal interpretations in various European Member States. The contributions shed light on the various actors, interest configurations, and dominant legal interpretations that shape (and reshape) public procurement policy and practice across member states, and critically evaluate the extent to which the regulation of public supply chains across Europe is ‘leaving behind’ the legal and normative restrictions imposed by the Laval quartet.