Moving In and Out of the Shadow of European Case Law: the Dynamics of Public Procurement in the Post‐Post‐Rüffert Era

Bjarke Refslund, Karen Jaehrling, Mathew Johnson, Aristea Koukiadaki, Trine Pernille Larsen and Christin Stiehm

Journal of Common Market Studies, 2020, vol. 58, issue 5, 1165-1181

Abstract: Judicial Europeanization, particularly European case law and the Rüffert ruling, has created significant legal uncertainty in the use of labour clauses in public procurement, which may constrain national policymakers. However, national actors find ways to ‘push back’ against Europeanization in order to prioritize domestic policy goals. By analysing the long‐term political dynamic surrounding public procurement in Denmark, Germany and the UK since the implementation of the revised 2014 public procurement directive, we show how both national actors, and actors at subnational level, where much public procurement actually takes place, contest the Europeanization of public policies. Variation in the willingness and ability of actors to leverage the legal uncertainty to adopt labour clauses results in diverging policy trajectories, but also creates a room for policy innovation. This alters the ultimate outcome of the European regulatory agenda and results in a continued divergence of public policies across member states.

Date: 2020
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