Chapter X
Towards Green Public Procurement
p. 183-199
Résumé
Public procurement is employed by Member States as a tool to shape various policies that are not economic in nature. By spending public funds from the budget, Member States have the opportunity to influence the development and shape of the EU’s internal market. The ability to integrate environmental considerations into the public procurement process and the development of the Green Public Procurement concept contributes to greater use of procurement mechanisms to protect the environment, and combat climate change. Recent years have seen increasing activity by the EU and the European Commission in promoting and facilitating the development of Green Public Procurement. The obligation to comply with environmental law has been introduced into public procurement law as one of the principles. However, most of the legal solutions in the EU to date are facultative in nature, leaving Member States with considerable discretion as concerns their implementation.
Texte intégral
I. Introduction
1This paper focuses on the question of to what extent EU regulations allow Member States to implement Green Public Procurement, and thus implement environmental and climate change policies through the use of public procurement mechanisms. In order to answer these questions, the paper firstly analyses the concept of Green Public Procurement, and more widely the idea of sustainable purchasing. The first section will present the history of the development of Green Public Procurement and trends in the activities of the European Commission (II). Secondly, it is necessary to present the impact of the jurisprudence of the Court of Justice on the development of Green Public Procurement, and the possibility of including environmental aspects in the procurement process (III). Further, the paper analyses the current public procurement regulations in the EU, focusing on the core Public Sector Directive.1 This section will outline the various legal solutions enabling the implementation of Green Public Procurement, the rule on the obligation to comply with environmental law, and the most recent trends in Green Public Procurement development (IV). The final section, referred to as ‘Conclusions’, will summarise and attempt to answer the question on the extent to which solutions favouring Green Public Procurement are mandatory, as well as the extent to which they have been left to the discretion of Member States (V).
II. The Concept of Green Public Procurement
2EU regulations on public procurement were initially viewed as solutions to foster economic integration, opening national markets up to economic operators from other Member States, and facilitating the free movement of goods and services. The way the EU public procurement market operated was based on the principles of equal treatment of economic operators and fair competition. Detailed procedures for the awarding of public contracts were designed to guarantee equal treatment of economic operators, and promote efficiency in the spending of public funds using fair competition mechanisms. The prioritised non-discrimination on the basis of nationality and place of residence of economic operators did not allow Member States to use public procurement instrumentally to support national contractors or specific regions.
3In practice, however, questions have begun to arise about the permissible scope of instrumentalising public procurement to implement non-economic policies, such as equal treatment for men and women, promoting compliance with labour and social laws, and protecting the environment. It appeared that non-economic policies did not threaten the principle of equal treatment of economic operators and could be implemented with fair competition in mind. The Member States realised that, by spending public funds from their budgets, they have an influence on the development of the public procurement market, and can create certain trends on the internal market, such as those favourable to environmental protection. When acquiring products manufactured in an environmentally friendly manner, or procuring services the provision of which does not cause negative environmental effects, Member States supported economic operators in the search for new solutions and partially bore the associated costs. When public authorities began to take environmental issues into consideration in their purchases, the idea of Green Public Procurement (GPP) was born.
4According to the opinion of the European Commission, the basic concept of Green Public Procurement relies on having clear, verifiable, justifiable, and ambitious environmental criteria for products and services, based on a life cycle approach and scientific evidence base.2 In the Communication entitled ‘Public procurement for a better environment’,3 the European Commission recommended the implementation of a process for setting common Green Public Procurement criteria. Since 2008, the European Commission has developed over twenty common Green Public Procurement criteria and they are available on its website.4
5The use of public procurement to promote industrial, social and environmental policies is now commonly defined as Sustainable Public Procurement (SPP), and understood as a process by which public authorities seek to achieve the appropriate balance between the three pillars of sustainable development – economic, social and environmental – when procuring goods, services or works at all stages of the project.5 The Europe 2020 strategy set out that public procurement is one of the key market-based-instruments to be used in achieving smart, sustainable and inclusive growth while ensuring the most efficient use of public funds.6 Current public procurement regulations emphasise the importance of environmentally responsible public procurement. Recital 91 of the preamble to the Public Sector Directive states that ‘this directive clarifies how the contracting authorities can contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring that they can obtain the best value for money for their contracts’. The EU legislator encouraged Member States to procure responsibly and to take sustainability issues into consideration.
6In its recent European Green Deal, the European Commission has reasserted that the EU’s trade policy facilitates trade and investment in green goods and services, and promotes climate-friendly public procurement.7 Public authorities, including the EU institutions, should lead by example and ensure that their procurement is green. Additionally, the European Commission has promised to propose further legislation and guidance on green public purchasing.
7The concept of the Green Public Procurement has been included in the Communication entitled ‘2020 Circular Economy Action Plan’.8 The European Commission noticed that ‘public authorities’ purchasing power represents 14 per cent of the EU GDP and can serve as a powerful driver of the demand for sustainable products’. The European Commission declared that it intends to
propose minimum mandatory Green Public Procurement criteria and targets in sectoral legislation, and phase in compulsory reporting to monitor the uptake of Green Public Procurement without creating an unjustified administrative burden for public buyers.
8Furthermore, the European Commission promised to continue to support
capacity building with guidance, training and dissemination of good practices and encouraging public buyers to take part in a ‘Public Buyers for Climate and Environment’ initiative, which will facilitate exchanges among buyers committed to Green Public Procurement implementation.
9Unfortunately, the EU has not yet adopted any regulation regarding public-private partnerships (PPS), albeit within the framework of such legal institution, contracting authorities may cooperate with economic operators to carry out public tasks. There are well-known cases in the world of using public-private partnerships to undertake environmentally and climate-friendly activities. Public-Private Partnership for the Climate (PPPC) is a way for private and public parties to take responsibility and jointly develop and invent solutions to prevent climate change. This type of public-private partnership is not about money – the reason why both private and public parties will want to enter Public-Private Partnership for the Climate is because both parties have a common interest in climate change and are able to see the benefits of working together. The Public-Private Partnership for the Climate is characterised by the following features: the involvement of many different private parties, lack of a contract, not all parties contribute financially, no financial incentive, the addressing of climate problems, common party goals, and working together to develop solutions.9
10In conclusion, it can be argued that the EU is increasingly attempting to encourage and facilitate the use of public procurement as a policy tool by Member States in the field of environmental protection. It should be emphasised, however, that it is not permitted, through EU procurement law, to fully control how Member States balance environmental considerations with other considerations, such as price or social and industrial matters.
III. The Role of the Court of Justice in Developing the Importance of Green Public Procurement
11It is important to emphasise the important role that the CJEU has played in creating environmentally-friendly public procurement.10 In the Concordia Bus Finland11 ruling, the Court of Justice resolved doubts about the permissibility of using environmental criteria as part of the criteria for awarding a public contract. The contracting authority – the City of Helsinki – was interested in purchasing buses, and wanted to choose environmentally-friendly, low emission vehicles. The contracting authority, therefore, prepared criteria for selecting the most economically advantageous tender, which allowed it to assess the level of emissions of the buses offered. According to the public procurement regulations in force at the time, the criteria on which the contracting authority may rely to award the public contract on the basis of the most economically advantageous tender, may be varied depending on the public contract in question, such as, in particular, quality, technical value, aesthetics, usability, technical assistance and after-sales service, the date on which the service was provided, the period or term of the service, or the price. The criteria listed were examples and did not constitute a closed catalogue. The Court of Justice explained that the rules of the public procurement law:
cannot be interpreted as meaning that each of the award criteria used by the contracting authority to identify the most economically advantageous tender must necessarily be of a purely economic nature. It cannot be excluded that factors which are not purely economic may influence the value of a tender from the point of view of the contracting authority.12
12The Court of Justice also noted that the EU primary law lays down that ‘environmental protection requirements must be integrated into the definition and implementation of Community policies and activities’.13 The contracting authority may take criteria relating to the preservation of the environment into consideration, provided that
they are linked to the subject-matter of the public contract, do not confer an unrestricted freedom of choice on the contracting authority, are expressly mentioned in the contract documents or the tender notice, and comply with all the fundamental principles of community law, in particular the principle of non-discrimination.14
13Referring directly to the tender organised by the City of Helsinki, the Court of Justice assessed that criteria relating to the level of nitrogen oxide emissions and the noise level of the buses must be regarded as linked to the subject-matter of a public contract for the provision of urban bus transport services. The criteria whereby additional points are awarded to tenders meeting certain specific and objectively quantifiable environmental requirements are not such as to confer an unrestricted freedom of choice on the contracting authority. Additionally, the criteria were expressly mentioned in the tender notice published by the City of Helsinki.15
14The Concordia Bus Finland case also raised the question of whether the principle of equal treatment of contractors precludes the taking into consideration of criteria concerned with environmental protection, if only several economic operators are able to offer a bus fleet satisfying these criteria. The Court of Justice held that the award criteria were objective and applied without distinction to all economic operators. Next, the criteria were directly linked to the fleet offered, and constituted an integral part of a point-awarding system. Finally, under that system, additional points could be awarded on the basis of other criteria linked to the fleet, such as the use of low-floor buses, the number of seats and tip-up seats, as well as the age of the buses.16 The Court of Justice stated that:
in such a factual context, the fact that one of the criteria adopted by the contracting authority to identify the most economically advantageous tender could be satisfied only by a small number of economic operators, is not in itself such as to constitute a breach of the principle of equal treatment.17
15Another significant ruling of the Court of Justice concerning Green Public Procurement was the Wienstrom18 case. In the Wienstrom ruling, the Court of Justice had to decide whether the legislation on public procurement precludes a contracting authority from applying, in its assessment of the most economically advantageous tender, for a public contract for the supply of electricity, a criterion requiring that the electricity supplied be produced from renewable energy sources. This is because the subject of the framework agreement was to be the supply of electricity to all administrative offices in the Land of Carinthia.
16The Court of Justice upheld the approach presented in the Concordia Bus Finland ruling assuming that the public procurement law cannot be interpreted as meaning that each of the award criteria used by the contracting authority to identify the most economically advantageous tender must necessarily be of purely economic nature.19 In the Court of Justice’s opinion, the legislation on public procurement does not preclude a contracting authority from applying, in the context of the assessment of the most economically advantageous tender for a public contract, for the supply of electricity, a criterion requiring that the electricity supplied be produced from renewable energy sources, provided that criterion complies with the requirements outlined in the Concordia Bus Finland ruling.20
17The Court of Justice added that
the use of renewable energy sources for producing electricity is useful for protecting the environment insofar as it contributes to the reduction in emissions of greenhouse gases, which are amongst the main causes of climate change which the European Community and its Member States have pledged to combat.21
18Following the careful analysis of all the doubts raised by the national court regarding the content of the criterion, its weighting, and the method of verification, the Court of Justice concluded that the applicable legislation on public procurement:
does not preclude a contracting authority from applying, in the context of the assessment of the most economically advantageous tender, for a public contract for the supply of electricity, an award criterion with a weighting of 45 per cent, which requires that the electricity supplied be produced from renewable energy sources. The fact that this criterion does not necessarily serve to achieve the objective pursued is irrelevant in that regard.22
19The Court’s opinion – expressed in the Wienstrom judgment – proved to be highly significant for the further development of environmentally-friendly procurement, as it assumed that one of the goals of the contracting authority could be the promotion of renewable energy sources. In simple terms, viewed from the perspective of the price of energy, the procurement may have been more expensive but achieved non-economic goals whose economic value at the time of the award of the public contract was not precisely measurable. However, environmental criteria cannot be applied arbitrarily, and must be linked to the subject-matter of the public contract. The Court of Justice emphasised that the legislation:
does preclude such a criterion where it is not accompanied by requirements which permit the accuracy of the information contained in the tenders to be effectively verified, and it requires tenderers to state how much electricity they can supply from renewable energy sources to a non-defined group of consumers.23
20The Court of Justice explained that the contracting authority must provide for methods of verifying the origin of the electricity supplied, and additional points on the origin of electricity from renewable sources can only be awarded for supplies made to the contracting authority. The total amount of energy produced by a tenderer for the market cannot be evaluated by the contracting authority because it is not related to the subject-matter of its public contract.
21The principles of equal treatment of economic operators, fair competition and transparency, require contracting authorities to be precise when determining award criteria and public contract performance conditions. The conditions required by contracting authorities must also be verifiable. The above issues were also analysed in the Commission v Netherlands24 judgment. The contracting authority – the Province of North Holland in the Netherlands – in accordance with the public procurement law in force at the time, published a contract notice for the supply and management of automatic tea and coffee machines. According to the tender documents, the contracting authority required that economic operators offer products labelled with EKO or other equivalent labels. Economic operators who had products of the same quality and meeting the requirements confirmed by the said labels could not submit a tender if their products did not have the required labels. Additionally, the Province of North Holland required the possession of specific labels in its award criterion – the contracting authority provided that, where the ingredients to be supplied bore the EKO labels, this would result in the awarding of a certain number of points in the classification of the competing tenders for the purposes of the awarding of the public contract.
22It should be emphasised that the contracting authority could have required that the products offered to it originate from organic and environmentally favourable crops. In such case, each economic operator should offer the contracting authority tea and coffee sourced from such crops, while labels could only be one of the means of proof of origin of the products. The contracting authority could also decide that the method of production of coffee and tea would not be included in the description of the subject of the public contract (technical specifications) but would constitute one of the award criteria. And, in such case, the labels could only provide evidence of the origin and manufacturing method of the products supplied. The contracting authorities must accept any other appropriate means of evidence, such as the technical dossier of the manufacturer, or a test report from a recognised body.
23The Court of Justice noted that the technical specifications may be formulated in terms of performance or functional requirements, which may include environmental characteristics. The EKO label, insofar as it was based on environmental characteristics, constituted an ‘eco‑label’, and, by laying down a requirement with regard to the characteristics of the tea and coffee to be supplied in connection with that label, the Province of North Holland has established a technical specification in that regard. The Court of Justice decided that the contracting authority, by requiring, in the tender documents, that certain products to be supplied were to bear a specific eco-label, rather than using the detailed specifications defined by that eco-label, were in violation of the public procurement law.25 Similarly, in the case of award criteria – the awarding of a certain number of points to products bearing a given label without reference to the considerations of meeting certain conditions stood in contradiction of the principle of equal treatment of economic operators.26
24The jurisprudence of the Court of Justice in the cases of Concordia Bus Finland, Wienstrom and Commission v Netherlands has significantly contributed to the development of the concept of Green Public Procurement, and introduced rules on how contracting authorities are to apply technical specifications and award criteria referring to environmental aspects. First of all, the Court of Justice has prejudged that the criteria for awarding public contracts need not refer only to purely economically measurable aspects, and can promote environmentally-friendly purchases. Subsequently, the Court of Justice has set out conditions for the adoption of environmental criteria. Award criteria that take into account environmental aspects must, therefore, be related to the subject-matter of the contract, although they do not have to relate to the characteristics of the products to be purchased, but may refer, for example, to the method of production. The Court of Justice also clarified that environmental aspects can appear in technical specifications and in award criteria, if they have been made known in advance to all contractors, along with methods for verifying compliance with the requirements of the contracting authority. It is also worth noting that the Court of Justice, when analysing the admissibility of the use of environmental aspects in public procurement, has always referred to the compatibility of such solutions with the basic principles of public procurement law, such as the principle of equal treatment of contractors, fair competition, and transparency. The interpretation of public procurement law by the Court of Justice in the judgments presented facilitated the clarification of the issues mentioned, and formed the basis for the new solutions adopted in the Public Sector Directive.
IV. Green Procurement Regulations in the EU
A. Introduction
25The Public Sector Directive takes into account environmental aspects and allows contracting authorities to implement Green Public Procurement, by providing a number of solutions that are beneficial from the perspective of the environment and climate change.
26This section will present the various legal solutions to the possibility of taking environmental aspects into account during the procurement process: technical specifications, selection criteria, rejection of tenders, award criteria, life-cycle costing, and contract performance clauses. The analysis of individual legal instruments is made through the prism of the latest principle of public procurement law, which obliges Member States to respect the requirements of environmental law. The section also takes into account the latest proposals for legislative action by the European Commission.
27When analysing instruments for implementing the Green Public Procurement, one of the most important issues is the nature of the obligations imposed on Member States. Some of the obligations adopted by EU legislature are mandatory in nature, but most are left to the discretion of Member States.
B. Article 18(2) of the Public Sector Directive
28The obligation to observe environmental law was introduced by EU legislature into public procurement law as a principle. In the light of Article 18(2) of the Public Sector Directive – the Member States shall take the appropriate measures to ensure that, in the performance of public contracts, economic operators comply with the applicable obligations in the field of environmental law established by EU law, national law, or international environmental law provisions listed in Annex X, which refers to a number of international conventions, including several environmental agreements.
29In its recent ruling Tim SpA,27 the Court of Justice stressed that Article 18(2) of the Public Sector Directive entitled ‘Principles of procurement’, is the first article of Chapter II thereof devoted to ‘general rules’ on public procurement procedures:
Accordingly, by providing in paragraph 2 of that article that economic operators must comply, in the performance of the contract, with obligations relating to environmental, social and labour law, the Union legislature sought to establish that requirement as a principle, like the other principles referred to in paragraph 1 of that article, namely the principles of equal treatment, non-discrimination, transparency, proportionality and prohibiting the exclusion of a contract from the scope of Directive 2014/24 or artificially narrowing competition. It follows that such a requirement constitutes, in the general scheme of that directive, a cardinal value with which the Member States must ensure compliance pursuant to the wording of Article 18(2) of that directive.28
30The Court of Justice emphasised that the duty to comply with Article 18(2) of the Public Sector Directive is binding throughout the entire public procurement procedure.29 The Tim SpA ruling is considered a landmark in the field of Green Public Procurement because it highlights the introduction of a new principle into public procurement law, in order to reflect the values respected by Member States. Previous regulations in the sphere of public procurement allowed for references to environmental aspects, but never before had the EU legislator chosen to emphasise in such a way the need to respect obligations in the area of broadly defined sustainability.
31It is worth noting, however, that the provision being analysed leaves quite a large degree of discretion to Member States in the process of implementing the Public Sector Directive. This raises, for example, the question of the definition of ‘appropriate measures’ to be taken by individual Member States in line with Article 18(2) of the Public Sector Directive. There are some more specific obligations in this Directive relating to environmental issues, which reflect this general principle.30 Otherwise, however, it is not clear how far the principle goes in requiring Member States to act in specific ways in specific areas of the procurement process, rather than leaving such matters to national discretion. Some regulations concerning exclusion grounds or award criteria in relation to environmental matters are optional rather than mandatory, and this tends to suggest that the general obligation under Article 18(2) of the Public Sector Directive does not go as far as requiring any specific action, but merely requires Member States to give consideration to the issue.31
32Highlighting the role of Sustainable Public Procurement may raise questions about the interrelationship between the various principles of public procurement law. The emerging role of environmental considerations as autonomous criteria in the awarding of public contracts, and the growing emphasis on public procurement as a strategic form of governance, could be an argument that environmental progress has become a core part of the principles of procurement itself, and the value of competition is becoming less decisive.32 It may also be noted that Article 18(2) of the Public Sector Directive refers to obligations in three areas: labour law, social law, and environmental law. All the areas mentioned, not just environmental protection, are promoted as the basis for sustainable development, and in practice there may be a type of competition between the various policies.
33When analysing sustainability issues in the public procurement process, one must bear in mind that such considerations may appear at all stages of the process: the pre-tender stage, where the contracting authority defines and specifies what is required in order to satisfy its needs, the acquiring phase consisting of organising the competitive tender procedure, contract conclusion and implementation. The Public Sector Directive provides several opportunities to include sustainable considerations throughout the procurement process.33 Environmental matters can be taken into account even earlier, when contracting authorities are considering the decision to purchase or not to purchase – a government may decide not to go ahead with a project – such as the construction of a dam – that it would otherwise undertake, due to its negative environmental impact. The means selected for carrying out a project may also be influenced by environmental issues – for example the decision to purchase a video-conferencing facility rather than spend money on travel for meetings. Once a contracting authority has identified particular needs as the subject-matter for a procurement, it may decide to implement environmental objectives by including contractual obligations relating to those objectives, which the contracting authority specifies itself in the tender documents.34 Environmental issues may be considered when detailing the technical specification, award criteria, and conditions for participation in a public tender. The benefits of environmental requirements can be enhanced by allowing economic operators flexibility in how to satisfy them: this can both widen the circle of potential tenderers – in accordance with the principle of fair competition – and allow for lower-cost methods of proving the benefits in question, as well as promoting innovation.35
C. Environmental Aspects in the Public Procurement Process
i. Regulations with the Nature of Sanctions Restricting Access to Public Procurement
34The EU legislator decided that some violations of environmental law carry certain sanctions in the area of public procurement. According to Article 57(4)(a) of the Public Sector Directive, contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator where the contracting authority can demonstrate, by any appropriate means, a violation of the applicable obligations referred to in Article 18(2) of the Public Sector Directive. Grounds for exclusion are used in public procurement law to prevent unreliable and untrustworthy economic operators with a history of misconduct from participating in tender procedures. Denial of access to public contracts may be used as a tool to ensure compliance with requirements not linked solely to the performance of the contract awarded, it may serve as a sanction to induce compliance with requirements outside of the contract. The aforementioned grounds of exclusion for the violation of environmental law obligations may restrict participation in the tender process, even if the related violation occurred outside of the public procurement system. Exclusion grounds for violations of environmental law are optional, which means that Member States are not obliged to implement them, and if they do introduce them into national law, they enjoy considerable discretion and can define their limits and make them optional. Member States may, for example, provide that, in determining whether to exclude a contractor, it must be established that the contractor has been sanctioned for a violation of environmental law. The wide scope of discretion in implementing the analysed exclusion grounds weakens its importance in the implementation of environmentally-friendly policies.
35Additionally, according to Article 69(3) of the Public Sector Directive, contracting authorities shall reject the tender, where they have established that the tender is abnormally low because it fails to comply with applicable obligations concerning environmental law. The indicated provision is one of few mandatory regulations in the context of public procurement allowing for the effective implementation of environmentally-friendly solutions. In public procurement law there are also other grounds for rejecting a tender, for example, due to its non-compliance with the contracting authority’s requirements. Thus, if the contracting authority refers to environmental aspects in the technical specifications, tenders that do not comply with such requirements will be rejected by the contracting authority.
ii. Environmental Aspects within Technical Specifications and Award Criteria
36Contracting authorities can contribute to the development of green procurement and sustainable growth by requiring contractors to meet certain conditions favourable to environmental and climate protection. One strategy involves preparing the description of the subject-matter of the contract (technical specifications) in a way that incorporates environmentally-friendly solutions. In this case, all economic operators must offer products or services fulfilling the standards required by the contracting authority. It is also worth noting that, in the case of existing harmonised standards in a given field, the contracting authority has no choice but to apply the requirements provided by the national or EU legislator. Another strategy uses the mechanism of competition between economic operators who offer the contracting authority products and services that meet the highest degree of environmental criteria for the selection of the most economically advantageous offer. The contracting authority can use mixed strategies – partly introducing mandatory standards and partly using the mechanism of competition. For example, the contracting authority may set as a requirement a certain level of emissions that cannot be exceeded by the vehicles offered, and will simultaneously award additional points under the contract award criteria for an even lower emissions level.
37Contracting authorities may implement Green Public Procurement not only in establishing and defining their substantive requirements, but also through the way in which their procurements are packaged or timed – for example by dividing procurements into lots. Mentioned solutions may contribute to environmental objectives by facilitating local deliveries, reducing the adverse environmental impact of transport.36 However, it is worth noting that tender conditions or technical specifications relating to the locality of supplies should be properly designed so that they do not violate the principle of equal treatment of contractors. The aim of the Public Sector Directive is to avoid the risk that contracting authorities will, for protectionist reasons, award public contracts to economic operators in their region instead of choosing the best value, most economical option. Contracting authorities are not permitted to employ sustainable procurement in order to support the local economy. However, given climate change concerns around transport distance, local procurement recast as Green Public Procurement might be permissible. According to Article 67 of the Public Sector Directive, contract award criteria may comprise delivery conditions and environmental aspects. Award criteria shall be considered to be linked to the subject-matter of the public contract where they relate to the supplies to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in the specific process of production, provision, or trading of those supplies. Transport issues are connected with production methods or post-production delivery.
38Literature,37 however, rightly points out that the perspective of ‘local’ public procurement seems unpromising for the present. Even if such a local policy could be compatible with Directive 2014/24 itself, it faces seemingly impossible barriers in the form of freedoms arising from the functioning of the internal market. The reason for this is obvious – to question the distance travelled by goods and services due to climate change is to undermine the fundamental nature of international trade and, in particular, the EU single market project.
39When designing tender terms and conditions, contracting authorities should keep in mind that there are also regulations outside of the public procurement law that impose Green Public Procurement standards. Directive 2009/33 on the promotion of clean and energy-efficient road transport vehicles38 imposes certain obligations on some contracting authorities to take into account energy consumption and certain emissions in the purchasing of vehicles. Requirements must be taken under consideration either by setting technical specifications relating to environmental impact, or by including environmental award criteria. In addition to the obligations relating to energy efficiency in the purchase of vehicles, some contracting authorities – central governments – are under an obligation to purchase energy-efficient products, services, and buildings under Directive 2012/27 on energy efficiency.39 This duty is not an absolute one – it applies only insofar as the purchase of the products, services, and buildings with high energy-efficiency performance is consistent with cost-effectiveness, economic feasibility, wider sustainability, technical suitability, as well as sufficient competition.
40As mentioned earlier, contracting authorities can rely on and use the EU Green Public Procurement criteria developed to facilitate the inclusion of green requirements in public tender documents. On the European Commission’s website, contracting authorities can find sample award criteria – among others – for cleaning products and services, computers, monitors, tablets and smartphones, data centres, server rooms and cloud services, electricity, office building design, construction and management, public space maintenance, road design, construction and maintenance, or road transport.40
41Implementing its Communications: the European Green Deal and the 2020 Circular Economy Action Plan of the European Commission began to develop some minimum mandatory Green Public Procurement (GPP) criteria in sectoral legislation. The European Commission presented its proposal for a new regulation concerning batteries and waste batteries41 in order to modernise the EU’s regulatory framework for batteries, with the purpose of securing the sustainability and competitiveness of battery value chains. It would introduce mandatory requirements on sustainability, such as carbon footprint rules, minimum recycled content, performance and durability criteria, safety and labelling for the marketing and putting into service of batteries and requirements for end-of-life management. The European Commission would adopt delegated acts establishing minimum mandatory Green Public Procurement criteria or targets.
42The European Commission also put forward the proposal for a directive on energy efficiency (recast).42 Contracting authorities would be obliged to buy only products, services, buildings, and construction works with high energy efficiency in accordance with the requirements referred to in Annex IV, which makes reference, among other documents, to the EU GPP criteria-set. Additionally, minimally 3 per cent of the total floor area of heated and/or cooled buildings owned by public bodies would be renovated each year to at least be transformed into nearly zero-energy building.
43Another project concerns the sustainable products initiative – the European Commission presented the proposal establishing a framework for setting forth eco-design requirements for sustainable products.43 Some reference to Green Public Procurement criteria would be adopted as part of the delegated act establishing requirements for specific product groups. Priority product categories are: electronics and ITC equipment, textiles, furniture, steel, cement, and chemicals.
44According to the assumptions outlined in the Communication 2020 Circular Economy Action Plan, waste should be reduced and goods reused and recycled as much as possible – this means that packaging waste should also be reduced and made easier to recycle. The European Commission has presented its proposal on packaging and packaging waste.44
45The final plan concerns the legislative framework for a sustainable food system. The aim of this initiative is to render the EU food system sustainable, and to integrate sustainability into all food-related policies. The European Commission is working on sustainability labelling of food products and some minimum criteria for the sustainable public procurement of food.
iii. The Link between Award Criteria and the Subject-Matter of the Public Contract
46Article 67(1) of the Public Sector Directive states that offers can be selected not only on the basis of ‘best price’ but also on the ‘most economically advantageous offer’ (MEAT). As mentioned earlier, the Court of Justice in the Concordia Bus Finland and Wienstrom judgments clarified that the various criteria making up the most economically advantageous offer can refer to environmental requirements. The EU legislator followed the Court’s concepts and decided, in Article 67(2) of the Public Sector Directive, that the most economically advantageous tender from the point of view of the contracting authority shall be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing (LCC), and may include the best price-quality ratio, which shall be assessed on the basis of criteria including qualitative, environmental and/or social aspects, linked to the subject-matter of the public contract in question.
47Article 67(1) of the Public Sector Directive requires that award criteria are considered to be linked to the subject-matter of the public contract. The link between the award criterion and the subject-matter demands a clear, precise and unambiguous definition of the parameters imposed by the award criterion. This requirement limits the scope of environmental criteria on two fronts: on the one hand, it is not permissible for contracting authorities to set an award criterion merely referring to the environmental policy of the tenderers. On the other hand, each award criterion must pass the proportionality test because sustainable considerations should still respect the general principles of public procurement law.45
48Article 67 of the Public Sector Directive should be interpreted in the light of Recital 97 of the preamble, which includes certain limitations:
[…] the condition of a link with the subject-matter of the contract excludes criteria and conditions relating to general corporate policy, which cannot be considered as a factor characterizing the specific process of production or provision of the purchased works, supplies or services. Contracting authorities should hence not be allowed to require tenderers to have a certain corporate social or environmental responsibility policy in place.
49As explained by the Court in the Wienstrom ruling, matters considered a public procurement process must relate to the goods, works and services that are being procured, and cannot concern matters which fall outside of the scope of the public contract itself.
iv. Life-Cycle Costing (LCC)
50Life-cycle costing refines the idea of sustainable public procurement into a true methodology, and is raising awareness of future expenditures and reaching the most cost-effective solution. The inclusion of environmental interests among the basic public procurement goals also leads to a wider margin of discretion for contracting authorities.46 Each life-cycle costing methodology is based on specific sectoral legislation allowed to be developed by national or local authorities, as long as there is no harmonised methodology at EU levels. The EU legislator decided that, in view of the important differences between individual sectors and markets, it would not be appropriate, however, to set general mandatory requirements for environmental, social, and innovation procurement. In the EU legislator’s opinion these methods may not be tailor-made for specific public contracts. Examples of solutions are common life-cycle costing tools in the sectors of road transport vehicles and office equipment.47
51The European Commission has developed other life-cycle costing calculation tools, which aim to facilitate the use of LCC in the following sectors: indoor lighting, outdoor lighting, computers and monitors, vending machines, and imaging equipment.48
52According to Article 68 of the Public Sector Directive, life-cycle costing shall, to the relevant extent, cover parts or all of the following costs over the life cycle of a product, service or works:
- Costs, borne by the contracting authority or other users, such as:
- costs relating to acquisition,
- costs of use, such as consumption of energy and other resources,
- maintenance costs,
- end-of-life costs, such as collection and recycling costs.
- Costs imputed to environmental externalities linked to the product, service or works during its life cycle, provided their monetary value can be determined and verified; such costs may include the cost of greenhouse gases and other pollutant emissions, as well as other climate change mitigation costs.
53The wording of the quoted provision shows that life-cycle costing also takes into account environmental aspects and yet the biggest challenge at present is the adoption of standard methodologies for calculating the economic value of such aspects.
v. Contract Clauses
54As already mentioned, environmental concerns are implemented at different levels of the procurement process: both selection and award criteria, as well as contract performance clauses and technical specifications, may allow a limitation of competition for the sake of more sustainable contracts.
55According to Article 70 of the Public Sector Directive, contracting authorities may lay down special conditions relating to the performance of a public contract. These conditions may include economic, innovation-related, environmental, social, or employment-related considerations.
V. Conclusions
56There is no doubt that the inclusion of sustainable considerations in public procurement is not only permitted but also highly promoted and recommended by numerous widespread policies and the revised Public Sector Directive, which take into account the Court’s line of case law.49 According to Article 11 TFEU, environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development. However, literature50 indicates that there is a significant ambiguity as to the precise scope and effects of the obligations arising from this provision, and unfortunately there is no further clarification provided by the Court’s case law in relation to public procurement. It appears doubtful that the EU legislator is required to introduce environmental standards as an obligation to all public procurements. It has been correctly pointed out that contracting authorities shall balance the various facultative considerations, and there is no clear legal basis for prioritising environmental policy over other facultative policies and procurement principles, such as equal treatment and fair competition. The public procurement market differs significantly in its type, size, and composition, in addition, individual Member States have more or less financial resources to implement facultative policies, and applying a mandatory approach would simply be unfitting and inappropriate in general.
57The previously mentioned Article 18(2) of the Public Sector Directive provides a very general duty but forms the basis for more detailed rules. Contracting authorities are obliged to comply with environmental law, which translates into the obligation to take into account only the regulations that apply obligatorily to the acquisition of certain goods or services. The analysed provision does not impose a legal obligation on contracting authorities to take measures extending beyond existing mandatory requirements regarding, for example, technical specifications. Promotion of green procurement tends to be done through soft law instruments. EU Member States can adopt policies limited to compliance with external or national legal requirements applying to economic operators in general or policies going beyond this. Where procurement policies focus on compliance with existing general norms there is generally no problem over transparency in the standards that economic operators must meet, as these are set out in the relevant legal norms. The fact that the contracting authority does not set the standard also reduces the scope of the possible abuse of discretion by setting standards favouring particular economic operators.51 On the other hand, the Public Sector Directive provides many tools and solutions to implement Green Public Procurement in the field of technical specifications, award criteria, and life-cycle costing, selection criteria, and contract performance clauses.
58Article 18(2) of the Public Sector Directive is a provision addressed to Member States, and it means that the progress and enforceability of the mentioned regulation depends on the political will and incentives in national implementation. One must agree that, under the current status of EU procurement law, there is no general positive obligation to include sustainability considerations in the public procurement process beyond mandatory requirements, and there is no direct legal risk associated with the avoidance of such considerations.52
59However, despite the lack of a general obligation to award green contracts, the Public Sector Directive provides contracting authorities with a number of legal solutions allowing them to make environmentally-friendly purchases, and in some cases obliging them to comply with mandatory standards for specifications or methodologies for calculating life-cycle costing. Bearing in mind the European Commission’s current policy on Green Public Procurement, it appears that the area covered by mandatory regulations will expand.
Notes de bas de page
1 Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC [2014] OJ L94/65.
3 Commission, ‘Public procurement for a better environment’ (Communication) COM(2008) 400 final.
6 Commission, ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’ (Communication) COM(2010) 2020 final.
7 Commission, ‘The European Green Deal’ (Communication) COM(2019) 640 final.
8 Commission ‘A new Circular Economy Action Plan For a cleaner and more competitive Europe’ (Communication) COM(2020) 98 final.
9 S. M. Dento, ‘Public-Private Partnership for the Climate. From a Plastic Pollution Perspective’ (2021) 4 European Procurement and Public Private Partnership 318–27.
10 On the role of the Court of Justice see: S. Kingston, ‘The uneasy relationship between EU environmental and economic policies: The role of the Court of Justice’ in B. Sjafjell and A. Wiesbrock (eds), Sustainable Public Procurement under EU Law – New Perspectives on the State as Stakeholder (2015).
11 Case C-513/99, Concordia Bus Finland Oy Ab and Helsingin kaupunki, HKL-Bussiliikenne, ECLI:EU:C:2002:495.
12 Ibid., para 55.
13 Ibid., para 57.
14 Ibid., para 64.
15 Ibid., paras 65–67.
16 Ibid., para 83.
17 Ibid., para 85.
18 Case C-448/01, EVN AG, Wienstrom and Republik Österreich, ECLI: EU: C:2003:651.
19 Ibid., para 32.
20 Ibid., para 34.
21 Ibid., para 40.
22 Ibid., para 72.
23 Ibid., para 72.
24 Case C-368/10, Commission v Netherlands, ECLI: EU: C:2012:284.
25 Ibid., para 70.
26 Ibid., para 93.
27 Case C-395/18, Tim SpA – Direzione e coordinamento Vivendi SA, ECLI:EU:C:2020:58.
28 Ibid., para 38.
29 Ibid., para 45.
30 These issues are discussed below.
31 S. Arrowsmith, The Law of Public and Utilities Procurement, vol 2 (London, Sweet & Maxwell, 2018) 722–23.
32 L. Michaux and J. Gruyters, ‘Life Cycle Costing. The Final Step Towards a True Rule of Reason in Public Procurement Law?’ (2020) 1 European Procurement and Public Private Partnership 63.
33 M. Andrecka and K. Peterkova Mitkidis, ‘Sustainability Requirements in EU Public and Private Procurement – A Right or an Obligation’ (2017) 55 Nordic Journal of Commercial Law 69–70.
34 S. Arrowsmith, The Law of Public (n 31 above) 706.
35 Ibid., 707.
36 Ibid., 708.
37 Ch. Hilson, ‘Going local? EU law, localism and climate change’ (2008) 2 European Law Review 208–09.
38 Directive 2009/33/EC of the European Parliament and of the Council on the promotion of clean and energy-efficient road transport vehicles [2009] OJ L120/5.
39 Directive2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU, and repealing Directives 2004/8/EC and 2006/32/EC [2012] OJ L315/1 – Article 6.
41 Commission, Proposal for a Regulation of the European Parliament and of the Council concerning batteries and waste batteries repealing Directive 2006/66/EC and amending Regulation (EU) No 2019/1020, COM(2020) 798 final – Article 70.
42 Commission, Proposal for a Directive of the European Parliament and of the Council on energy efficiency (recast), COM(2021) 558 final – Articles 6 and 7.
43 Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a framework for setting eco-design requirements for sustainable products and repealing Directive 2009/125/EC, COM(2022) 142 final – Article 4.
44 Commission, Proposal for a Regulation of the European Parliament and of the Council on packaging and packaging waste, amending Regulation (EU) 2019/1020 and Directive (EU) 2019/904, and repealing Directive 94/62/EC, COM(2022) 677 final.
45 M. Martens and S. De Margerie, ‘The link to the subject-matter of the contract in green and social procurement’ (2013) 8 European Procurement and Public Private Partnership 17.
46 L. Michaux and J. Gruyters, ‘Life Cycle Costing’ (n 32 above) 64.
47 Recital 95 of the preamble to the Public Sector Directive; Directive 2009/33/EC of the European Parliament and of the Council on the promotion of clean and energy efficient road transport vehicles [2009] OJ L120/5; Regulation (EC) No 106/2008 of the European Parliament and of the Council on a Community energy-efficiency labelling programme for office equipment [2008] OJ L39/1.
49 M. Andrecka and K. Peterkova Mitkidis, ‘Sustainability Requirements’ (n 33 above) 77; R. Caranta and M. Trybus, The Law of Green and Social Procurement in Europe (Copenhagen, Diøf, 2010).
50 M. Andrecka and K. Peterkova Mitkidis, ‘Sustainability Requirements’ (n 33 above) 79–80.
51 S. Arrowsmith, The Law of Public (n 31 above) 698, 700. S. Arrowsmith also has raised the question of whether it is appropriate to use procurement power at all as a form of regulation to require or induce compliance by economic operators with standards that do not apply to persons more generally.
52 M. Andrecka and K. Peterkova Mitkidis, ‘Sustainability Requirements’ (n 33 above) 83.
Auteur
-
Aleksandra Sołtysińska
PhD, Assistant Professor, Jagiellonian University, Cracow, Poland
Le texte seul est utilisable sous licence Creative Commons - Attribution - Pas d'Utilisation Commerciale - Pas de Modification 4.0 International - CC BY-NC-ND 4.0. Les autres éléments (illustrations, fichiers annexes importés) sont « Tous droits réservés », sauf mention contraire.
Imaginaire et création historique
Philippe Caumières, Sophie Klimis et Laurent Van Eynde (dir.)
2006
Socialisme ou Barbarie aujourd’hui
Analyses et témoignages
Philippe Caumières, Sophie Klimis et Laurent Van Eynde (dir.)
2012
Le droit romain d’hier à aujourd’hui. Collationes et oblationes
Liber amicorum en l’honneur du professeur Gilbert Hanard
Annette Ruelle et Maxime Berlingin (dir.)
2009
Représenter à l’époque contemporaine
Pratiques littéraires, artistiques et philosophiques
Isabelle Ost, Pierre Piret et Laurent Van Eynde (dir.)
2010
Translatio in fabula
Enjeux d'une rencontre entre fictions et traductions
Sophie Klimis, Laurent Van Eynde et Isabelle Ost (dir.)
2010
Castoriadis et la question de la vérité
Philippe Caumières, Sophie Klimis et Laurent Van Eynde (dir.)
2010
