Editors' Note – the decision in Rüffert v. Land Niedersachsen

Summary

In April 2008 the Second Chamber of the European Court of Justice (ECJ) gave judgment in the case of Rüffert v. Land Niedersachsen which may have significant implications for the ability of public authorities to advance certain social goals through the exercise of their procurement function. In brief, the judgment indicated that, in the context of the Posted Workers Directive, it is a violation of the EC Treaty to impose working conditions for those working on public contracts that do not apply to workers in general (that is, to those working on private as well as on public contracts). This raises the possibility that, more generally, the Treaty precludes standards of behaviour being imposed on those who obtain government contracts that do not apply to businesses in general, both in carrying out the contract and in relation to the activities of a government's contractor outside its government contracts. It is a striking feature of the judgment, however, that the ECJ does not refer to its own jurisprudence on public procurement or to the provisions on social and environmental considerations in the Community directives on public procurement. This is in spite of the fact that this jurisprudence and legislation arguably should have been taken into account in the ECJ's decision-making and is potentially affected by the Rüffert judgment.

Production of the present book was too advanced at the time of judgment to incorporate an analysis of the Rüffert case into the main text.