© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Relevant EU and International Policy and Legal Framework Linda Dahlström Swedish Competition Authority Seminar on Green Public Procurement Bucharest, October 2007

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Sustainable Development l “development that meets the needs of the present without compromisisng the ability of future generations to meet their own needs”

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU EU policy Framework (1) l Treaty of Amsterdam l European Sustainable Development Strategy (June 2001) l Sixth Environment Action programme - Integrated Product Policy - National Action Plans - Handbook on Green Procurement (Buying Green) - A Product Group Database - A GPP Website

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU EU policy Framework (2) l Communication on Stimulating technologies for Sustainable Development: an Environmental Technologies action plan (2004) l Renewed EU Sustainable Development Strategy (June 2006) l Commission interpretative communication on environmental considerations in public procurement (COM(2002)274 final)

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Related Policies l The EU Eco-label scheme l EMAS – The EU Eco-Management and Audit Scheme l Reach l Energy related policies -Buildings -Products -Services

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU International Policy Framework l United Nations -World Summit on Sustainable Development, Johannesburg 2002, l OECD l WTO l International Conventions and agreements - Kyoto Protocol on climate change (2002)

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Legal Framework l EC Treaty l Government Procurement Agreement (GPA) l Public Procurement Directives (2004/18/EC and 2004/17/EC) l Judgments of the European Court of Justice l National legislation

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Public Procurement Directives l “Classic“ Sector“Directive Directive 2004/18 EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L134 of ) and amendments/corrigenda l “Utilities”Directive Directive 2004/17 EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sector (OJ L134 of ) and amendments/corrigenda

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Principles deriving from Treaty (recital 2, Dir.2004/18/EC ) The freedom of movement of goods and freedom to provide services l Equal treatment l Non-discrimination l Mutual recognition l Proportionality l Transparency

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Directive 2004/18/EC Under art. 6 of the treaty, environmental protection requirements are to be integrated into the definition and implementation of the Community policies and activities referred to in art. 3 of that Treaty, in particular with a view to promoting sustainable procurement This directive therefore clarifies how the contracting authorities may contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring the possibility of obtaining the best value for their contracts.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Stages of Procurement Procedure l Definition of subject matter l Technical specifications l Selection of tenderers l Award of contract l Execution of the contract

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Definition of the subject matter of the contract l ”What do I, public authority, wish to construct or purchase?” l Subject matter of contract may not be defined in such a way that has as its aim, or results in, a reservation of access to the contract for domestic companies to the detriment of tenderers from other MS.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Technical specifications (Art. 23, rec. 29, Annex VI, Dir.2004/18/EC ) Article 23 l Technical standards l Performance or functional requirements – Environmental characteristics use specifications or part of specifications as defined by Eco-labels provided specifications: appropriate, scientifically based, accessible to all interested parties, adopted through a procedure with extensive dialogue Accept any appropriate means of proof

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Technical specifications ( Art. 23, recital 29, Annex VI Dir.2004/18/EC) Article 23 l Unless justified by the subject-matter of the contract technical specifications shall not refer to a specific make or source, particular process, trade marks, patents, or a specific origin or production with the effect of favouring or eliminating certain undertakings or products l Permitted on exceptional basis - Where sufficiently precise and intelligible description of the subject matter not possible, accompanied by the words ”or equivalent”

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Technical specifications (rec. 29, Dir.2004/18/EC ) l Contracting authorities that wish to define environmental requirements for the technical specifications for a given contract may lay down the environmental characteristics, such as a given production method, and/or specific environmental effects of product groups or services.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Variants (Art. 24, Dir. 2004/18/EC) l Indicated in contract notice when authorised l Minimum requirements stated in contract documents l Economically most advantageous tender

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Selection of candidates or tenderers (Rec. 43, Art. 45 Dir.2004/18/EC) l If national law contains provisions to this effect: l Cases that may lead to exclusion of tenderers or candidates that could include environmental concern; - convicted of an offense concerning his professional conduct by a judgement….or - guilty of grave professional misconduct proved by any means which the contracting authorities can demonstrate.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Selection of candidates or tenderers (Rec. 44, Art. 48,50 Dir.2004/18/EC) l Capability to execute the contract; economic, financial or technical capacity l Require evidence of technical abilities: environmental management measures applied when performing the contract - for public works and services contracts - only in appropriate cases - environmental management standards

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Selection of candidates or tenderers (Rec. 44, Art. 48,50 Dir.2004/18/EC) Accept other evidence of equivalent environmental managment measures from economic operators

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Award of contract (Rec.1, Art. 53 Dir.2004/18/EC) l When the award is made to tender most economically advantageous from the point of view of the contracting authority, i.e. environmental characteristics -linked to the subject-matter of the contract -not confer an unrestricted freedom of choice -expressly mentioned - comply with fundamental principles

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Conditions for performance of contracts (Rec. 33, Art. 26 Dir.2004/18/EC) l Special conditions relating to performance of contract; -compatible with Community law -indicated in the contract notice or specifications - may concern social or environmental considerations

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ Case law l C-31/87 Beentjes l C-225/98 Nord-Pas-de-Calais l C-324/93 Evans Medical l C-379/98 Preussen Electra l C-513/99 Concordia l C-448/01 EVN v Austria

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ, C-513/99, Concordia Bus, l Helsinki awarded contract for operation of urban bus route to HKL challenged by Concordia: award criteria incl. ecological criteria – level of nitrogen oxide emissions and noise level of buses l ECJ allowed ecological award criteria: – are linked to the subject matter of contract; – do not confer unrestricted freedom of choice; – specified in tender notice or documents; and – comply with EU law principles, part. non- discrimination l ECJ: no (indirect) discrimination even though criteria limit number of tenderers

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ, C-448/01, EVN, (1) l Rep of Austria invited tenders for framework contract for supply of electricity to the Federal Republic’s offices l Award criteria: Impact of the services on the environment – net price per kilowatt hour (kWh): weighting 55 % – energy produced from renewable energy sources in excess off 22,5 GWh/a: weighting of 45 % l ECJ held that ecological criteria may be taken into consideration if the four criteria set out in Concordia Bus are complied with l Criteria does not necessarily serve to achieve the objective

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ, C-448/01, EVN, (2) l An award criterion that relates solely to the amount of electricity produced from renewable energy sources in excess of the expected annual consumption, as laid down in the invitation to tender, cannot be regarded as linked to the subject-matter of the contract. l A criteria should be accompanied by requirements that permit the accuracy of the information contained in the tenders to be effectively verified

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Public contracts not covered by the directives l Contracts below the threshold of the directive l B-services contracts are not subject to all obligations of the directives l Application of the Treaty rules in the field of free movement and non- discrimination l Fundamental principles apply

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Thank You !