By Bjarke Refslund, Aalborg University, Department of Sociology and Social Work
The impact of European Union legislation varies across different policy fields and across countries. Some policy areas like competition rules are highly, and directly affected, while other areas like social policies and labour market policies are only indirectly affected. Moreover, the member states varies in terms of compliance with European legislation. Some scholars and observers argue national policy actors are severely limited in their ability to regulate policy areas strongly influenced by Europeanisation, in particular Court of Justice of the European Union (CJEU) case law (what has been called judge-made law. National policy-makers, nevertheless, appear to have more political room for manoeuvre than often portrayed in the literature and in public debates, as I show along with my co-authors Jaehrling, Johnson, Koukiadaki, Larsen and Stiehm in our recent article in JCMS.
In the article, I and my co-authors investigate how public procurement policies have developed over the recent years in Denmark, Germany and the UK in the light of the prominent impact of Europeanisation within this policy field, in particular the 2008 CJEU Rüffert (C346/06)-ruling. Drawing on qualitative data, mainly interviews, from a comparative European project on precarious employment and social dialogue, the results show enduring national policy variation and how national actors, despite legal uncertainty utilise public procurement to endorse their own policy goals. Sometimes the actors directly challenge the case law, or at least utilise the legal uncertainty to further their own national policy agenda.
Public authorities are prominent buyers of goods and services in areas like cleaning and construction, but the procurements spans widely, and at EU level 14 per cent of GDP is spent on public purchase of services, works and supplies according to the EU commission. Following this the role of state, regional and local public entities such as municipalities and hospitals as ‘socially responsible customers’ has been increasingly discussed. In particular how public buyers balance social (like fair wages and working conditions) and economic (low prices which in turn often result in low wages and poor working conditions) implications of public spending. While the role of public procurement has historically been debated, the Rüffert-ruling caused great commotion and uncertainty, as it appeared to severely limited national polities ability to promote social goals with public procurement. However, more recent rulings like the RegioPost ruling combined with the new Procurement Directive has given renewed prominence to the social dimension of public procurement. Nevertheless, in most national settings legal uncertainty remain.
Policy-makers may have different goals with public procurement. For example, some national and local authorities are highly inclined to curb labour market precariousness and securing decent working conditions (and other social goals) when procuring, whereas other policy-makers are more inclined to secure the lowest prices, which in turn may result in poor wages and working condition for the affected workers. The contradictions between these two legitimate goals underlines the inherent discussion of the ‘social dimension’ of European integration, where it has often been argued that the social consequences receive only secondary prominence compared to the economic freedoms in the Single marked as argued by for instance Fritz Scharpf. The tension has been further reflected in recent discussion on the Social dimension in particular the ‘EU social pillars’.
The findings in our research show how both national authorities, but equally important local governments for instance in municipalities, use procurement policies to achieve social goals such as certain wage levels and issues related to working conditions. Hence, some policy-makers are actively promoting social goals with their public procurement policies through labour clauses or legislation enforcing labour clauses that define certain wages and working conditions that suppliers must meet. Our results additionally highlight how political differences are important for how the political actors behave, which has also been shown by other researchers. The results show that governments (local as national) that are dominated by Social democrats or other left-parties are more inclined to apply e.g. labour clauses and promote social goals via public procurement. However, centre-right parties are also actively utilising public procurement to reach social goals, although to a lesser extent.
Although the overall policy implications of Europeanisation are quite similar in the three countries, there is significant variation in the policy trajectories on public procurement. These differences reflect the traditions for wage setting and the historical role of public procurement. Danish legislators at the national level and their German peers in some Länder are more prone to utilise social clauses, whereas their UK peers mainly rely on voluntary agreements. Overall, this illustrates how national policy-makers themselves defines the room for national ‘push-backs’ against Europeanisation for instance through policy innovation and through defining new regulatory measures.
In sum, our article illustrates that despite increasingly Europeanisation of national policies due to the influence of the CJEU, there is still a lot of leeway for national actors to shape policy decisions. These policy decisions may even act against overall Europeanisation. This active contestation is reinforced by the ambiguity of the EU legislation and case-law, which some national actors utilise to promote their own policy goals, whereas others are more reluctant for political reasons or out of fear of the risk of infringing EU law. We also show that public procurement is used as a tool to promote social goals, as in particular the experience from some German Länder and Denmark shows, where the institutional contexts is also more favourable for this than in the UK, where labour clauses remain voluntary. This illustrates overall how the impact of Europeanisation remains uneven across Europe, and how national policy-makers actively challenge Europeanisation, when it runs counter to their own policy goals.
This blog draws on the JCMS article Moving in and Out of the Shadow of European Case Law: the Dynamics of Public Procurement in the Post‐Post‐Rüffert Era
Bjarke Refslund is associate Professor in Industrial Relations and working life studies, Department of Sociology and Social Work, Aalborg University. His research focus on industrial relations, comparative employment relations and political economy and industrial sociology.