HAYLEA CAMPBELL SUSTAINABLE PROCUREMENT IN THE EU

INTRODUCTION Present situation North Holland case & its impact on fair trade public procurement The future of public procurement in the EU Student participation in public procurement

CURRENT DIRECTIVES Directive 2004/17/EC – coordinates the procurement procedures of entities operating in the water, energy, transport and postal services sectors Directive 2004/18/EC – coordinates procedures for the award of public works contracts, public supply contracts and public service contracts The 2004 Directives has been revised on the basis of a proposal from the European Commission (EC) after undergoing the EU ordinary legislative procedure, involving the European Parliament (EP) and the Council of Ministers.

IMPORTANT CONCEPTS SUBJECT MATTER Defines the substance of the contract, what will be purchased CAs can settle it in any way that meets the public's needs, including criteria promoting horizontal policies. TECHINCAL SPECIFICATIONS Requirements concerning the specific content of the contract Technical standards, performance and functional requirements Mandatory requirements Link to the subject matter of the contract, do not reduce competition SELECTION CRITERIA Assessment on the ability of the bidder's capacity to perform the contract Exclusion grounds Non discriminatory, proportionate, linked to the subject matter AWARD CRITERIA Comparison among the tenders Evaluation based on the ranking of each criterion Either MEAT (Most Economically Advantageous Tender) or 'lowest price' (price alone) CONTRACT PERFORMANCE CONDITIONS Capacity to meet them is not easily verifiable Exclusion for non-compliance is not allowed

NORTH HOLLAND CASE European Commission v Netherlands 2012 ECJ Commission brought an action over an alleged breach of Directive 2004/18/EC Court strictly interpreted art 23.6 of the Directive: ‘Moreover, far from constituting an excessive regard for formalities, the obligation of the contracting authority to mention expressly the detailed environmental characteristics it intends to impose even where it refers to the characteristics defined by an eco-label, is indispensable in order to allow potential tenderers to refer to a single official document, coming from the contracting authority itself and thus without being subject to the uncertainties of searching for information and the possible temporal variations in the criteria applicable to a particular eco-label’

NORTH HOLLAND CASE

DIRECTIVES REFORM European Commission is hoping to reform both Directive 2004/17/EC and Directive 2004/18/EC “In accordance with the case-law of the Court of Justice of the European Union, this includes also award criteria or contract performance conditions relating to the supply or utilisation of fair trade products in the course of the performance of the contract to be awarded. Criteria and conditions relating to trading and its conditions (commercialisation) may for instance refer to the fact that the product concerned is of fair trade origin, including the requirement to pay a minimum price and price premium to producers.”

DIRECTIVES REFORM Award Criteria Recital 37 : It should be set out explicitly that the most economically advantageous tender should be assessed on the basis of the best price- quality ratio, which should always include a price or cost element. It should equally be clarified that such assessment of the most economically advantageous tender could also be carried out on the basis of either price or cost effectiveness only. It is furthermore appropriate to recall that contracting authorities are free to set adequate quality standards by using technical specifications or contract performance conditions. In order to encourage a greater quality orientation of public procurement, Member States should be permitted to prohibit or restrict use of price only or cost only to assess the most economically advantageous tender where they deem this appropriate.

DIRECTIVES REFORM Labels Article 41: The contracting authority describes the social characteristics that it wants to purchase. The labels can be used as a means of proof that these characteristics are met. The article includes a list of criteria that labels have to meet. Labels are accepted as long as their requirements are linked to the subject- matter as evidence for technical specifications, award criteria and contract performance clauses. The other criteria relate to the robustness and credibility of the label, which the Fairtrade label meets. A contracting authority can decide not to ask for all the requirements of the label, but only some of them (f.i. absence of child labour, minimum price or price premium) provided that the link to the subject-matter is proofed.

DIRECTIVES REFORM Technical Specifications Recital 27: It is possible to submit tenders including those drawn up on the basis of performance criteria linked to the life cycle and the sustainability of the production process of the works, supplies and services. Art.40 These characteristics may also refer to the specific process or method of production or provision of the requested works, supplies or services or to a specific process for another stage of its life cycle even where such factors do not form part of their material substance provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process which characterises the products or services provided by a specific economic operator, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products.

STUDENT PARTICIPATION Buy Right: Briefing on Ethical Procurement for UK Universities Many students are becoming engaged with Fair Trade groups and ethical procurement campaigns People & Planet student groups campaign: For universities to join the Workers Rights Consortium For greater student engagement For increased Fair Trade purchasing

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