"The Ruffert Case and Public Procurement"

This chapter turns to the implementation of rights of free movement in the application of EU rules on public sector procurement. Through the lens of the Rüffert case, in which conditions designed to protect collective wage agreements were attached to public procurement contracts, the chapter discusses the interaction of municipal, state, and federal procurement laws in Germany, and their compatibility with EU law on freedom to provide services. Here, the debate on the relationship between open markets and social objectives takes place at a national as well as a European level and involves different levels of government. In Rüffert the fact that the contested measure applied only to public contracts called into question, for the Court of Justice, its effectiveness as a means to ensure the protection of workers. The chapter argues that the Court could and should have taken more seriously the use of procurement contracts to achieve social objectives, as indeed it has done in a series of procurement cases — a line of reasoning that the Rüffert judgment appears to ignore. The Procurement Directives themselves address this issue, and would have provided firmer ground from which to consider the application of Article 56 TFEU (ex Article 49 EC) to the balance between market opening and social concerns.