PROMOTING HUMAN RIGHTS COMPLIANCE THROUGH PUBLIC PROCUREMENT (REGULATION): THE NEW EUROPEAN DIRECTIVE M. VOGEL VU UNIVERSITY AMSTERDAM

2 ARTICLE 18(2) ‘Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators will comply with applicable obligations in the fields of environmental, social and labour law (...) ‘

3 Subcontractor complies with contractual obligation human rights compliance Main Contractor complies with criterion human rights compliance + contractual obligation for subcontractor Contracting Authority complies with obligations includes strict requirement + check + remedy Member State takes measures * creates extensive obligation for CA * provides check + remedy Individual choice to comply 18(2) ‘Influence path’ member state  economic operators through pp Individual choice to comply Duty to ensure compliance (take measures that garantee the desired effect) Duty to ensure compliance (take measures that garantee the desired effect) desired effect: compliance

Subcontractor Complies with human rights Main Contractor Complies with criterion (complies with human rights + obligation for subcontractor) Contracting Authority Complies with obligations Member State * Creates extensive obligations for CA * check + remedy obligation / possibility? strict requirement/ softer criterion? + subcontractors? + checks/ remedy? Duty to ensure that the chosen measures can be expected to be (the most?) effective + checks + remedy?

5 ARTICLE 67(2) : CONTENT OF AWARD CRITERIA 67(2) What kind of content may award criteria comprise? Fair trade criteria? ‘ The most economically advantageous tender (…) may include a price-quality ratio, which shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects (…). Such criteria may comprise: a. quality, including (…) social (…) characteristics and trading and its conditions’

6 ARTICLE 67(3): LINK TO THE SUBJECT MATTER OF THE CONTRACT 67(3) When do award criteria have a sufficient link to the subject matter of the contract? ‘ … where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in: a.the specific process of production, provision or trading (…)or b.a specific process for another stage of their life cycle, even where such factors do not form part of their material substance’

7 WHAT DO ARTICLE 67(2) AND 67(3) BRING US?  67(2) Award criteria may comprise social criteria and trading conditions  67(3) Much clearer and limited definition of the link to the subject matter of the contract requirement BUT:  Applicability of this definition in the context of other provisions (e.g. Art. 42, 43 and 70) is unclear

8 ARTICLE 67(4): VERIFICATION OF AWARD CRITERIA ‘ Award criteria shall (…) be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria. In case of doubt, contracting authorities shall verify effectively the accuracy of the information and proof provided by the tenderers.’’ When do specifications allow effective verification? When should verification be considered effective? On what grounds may (shall) a contracting authority decide whether or not to verify (mere subjective criterion)?

9 CONCLUSION: PROGRESS OR NOT? Article 18 (2)Article 67 (2), (3) and (4) New duty to take effective measures Clear focus on effectivity Award criteria may comprise social criteria and trading conditions Limited definition of link to the subject- matter of the contract: - effect in material substance ≠ required - production process, trade conditions New duty to effectively verify Content of the duty unclear - How to combine with pursuit of other objectives? General applicability of definition 67(3)? Content of the duty to verify unclear - How to operationalize within the boundaries of the general principles?

M. Vogel VU University Amsterdam