1. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Implementation of Green Procurement in the Swedish Procurement System Linda Dahlström Ankara 5-6 February

2. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Public Procurement in Sweden Current situation l 40 billion EUR l 10 000 contracting entities

3. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Legal Framework for GPP in Swede n 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 The Swedish Public Procurement Acts (2007:1091, 2007:1092)

4. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The ”Legal” Way forward l New Swedish procurement legislation which implements the provisions of the procurement directives. (January 2008) l A proposal that contracting authorities should set environmental requirements where appropriate with regard to the nature of the procurement.

5. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Background GPP in Sweden l 90’s - Early engagement by NGO:s and in local Municipalities, County Councils and in some Governmental Agencies l Committee for Ecologically Sustainable Public procurement appointed by the Swedish Government 1998-2001 l Development of the Swedish Instrument for Ecologically Sustainable Procurement (EKU) 2001 l Swedish Environmental Protection Agency survey on GPP 1998, 2002, 2004, 2007

6. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Background GPP in Sweden l Strong support for GPP from the Prime Minister in the Governmental declaration in 2002 l Swedish Action plan 2007-2009 l Legislation on green cars bought or leased by Governmental Agencies 1 Jan 2006 Developments l Sustainable procurement (social, ecological and economic dimension)

7. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 – Environmental public procurement l Purpose to increase the level of environmental procurement l Assessment of the current situation l Target for the next three years l Measures for achieving the targets l Clarification of the various actors’ responsibilities

8. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 – Environmental public procurement l Assessment of the current situation - Questionnaires, case studies l 60 % of central government, regional and local agencies regularly specify environmental requirements l In 1/3 of the cases environmental requirements are framed in such a way that they have no effect!

9. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 – Environmental public procurement l Main Obstacle - Lack of knowledge and experience on how to set environmental requirements

10. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 Environmental public procurement l Vision Wherever possible according to the law on public procurement, authorities at government, municipality and county levels should issue requirements for environmental issues in the public procurement process This must not involve an increase in the administrative burden for companies or making participation harder for companies, especially small companies.

11. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 Environmental public procurement l Vision Public purchasers and suppliers have access to tools, training and other types of support with regard to environmental issues in connection with public procurement

12. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 Environmental public procurement l Objectives 1. The proportion of authorities at government, municipality, and county levels that regurlarly issue well-formulated environmental requirements should increase from the current level of 60 % to 80 % 2.The proportion of state framework agreements with well-formulated environmental agreements should increase from the current level of 63 % to 90 %

13. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 – Environmental public procurement l Measures 1.State authorities, guidance and skills 2.Involve politicians and other decision- makers at local and regional level 3. Secure the skills among purchasers 4. Offer an effective and simple tool 5. National targets for public consumption

14. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 Environmental public procurement l State authorities, guidance and skills - environmental requirements in the state framework agreements

15. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for’07 Environmental public procurement l Involve politicians and other decision- makers at local and regional level - information campaign - conferences

16. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for’07 Environmental public procurement l Secure the skills amongs purchasers - set up a helpdesk for GPP - A web-based basic course on environmental requirements -Information material produced on environmental requirements and the legal framework - offer integration of GPP in existing procurement training courses

17. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 Environmental public procurement l Offer an effective simple tool for GPP l -Environmental criteria reviewed, quality, content, level,user- friendliness and functionality - The tool re-launched and marketed

18. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 – Environmental public procurement l Cost benefit analysis l Follow up - The Swedish Environmental Protection Agency should continouously follow up the development of environmental requirements in public procurement

19. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The government’s action plan for ’07 – Environmental public procurement l Involve allr elevant stakeholders in the process

20. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Swedish Environmental Public Procurement Structure The Swedish Environmental Public Procurement Structure Ministry of Enterprise Ministry of Finance The Swedish Public Procurement Act Ministry of Finance The Swedish Public Procurement Act The Swedish Competition Authority (supervision) Ministry of Environment 10 000 Procuring entities 290 Municipalities 12 County Councils 450 Central Authorities Swedish Environmental Management Council Swedish Environmental Protection Agency The National Financial Management Authority, Coordination of Central Procurement

21. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Swedish Environmental Managment Council (MSR) l Jointly owned by the Swedish state, the Swedish Association of Local Authorities and Regions and the Confederation of Swedish Enterprises.

22. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU MSR – GUIDANCE FOR SUSTAINABLE PROCUREMENT l Internet based l Criteria for 9 product areas l Guidelines and education l Aid and support (helpdesk) for public procurement officers purchasers l State financed, work contribution from different stakeholders l Staff- 8 full time

23. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU MSR – consensus process Pre-study (lca, market analysis, stakeholder analysis etc) Working group - start Referral Final criteria proposition Referral consideration Working group - stop Decision committee Publishing Prioritized products - Board decision Open stakeholder meeting

24. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Websites l The Swedish Competition Authority, supervisory authority for public procurement in Sweden (www.kkv.se) l The Swedish Environmental Management Council (www.msr.se) l The Swedish Environmental Protection Agency (www.naturvardsverket.se)

25. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Swedish Legal Framework below the EC thresholds Linda Dahlström Ankara 5-6 February 2008

26. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Thresholds WorksEUR 5 278000 Supplies/services l UtilitiesEUR 422 000 l Central levelEUR 137 000 l Other contracting authoritiesEUR 211 000

27. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Principles in the Treaty applying to public contracts l non-discrimination on grounds of nationality -Article 12 l free movement of goods and prohibition of quantitative restrictions on imports/exports and measures having equivalent effect –Art. 28 -30 l freedom of establishment -Article 43 et seq. l freedom to provide services -Article 49 et seq.

28. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Fundamental Principles Deriving from Treaty Provisions l equality of treatment l obligation of transparency l proportionality l mutual recognition

29. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ Case Law The ECJ has jurisdiction under art.177 of the EC Treaty to interpret Community law where the situation in question is not governed by Community law but the national legislature, in transposing the provisions of a directive into domestic law, has chosen to apply the same treatment to purely internal situations and to those governed by the directive, so that it has aligned its domestic legislation to Community law. (C-28/95 A. Leur Bloem)

30. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ Case law l “The mere fact that the Community legislature considered that the strict special procedures laid down in those directives are not appropriate in the case of public contracts of small value does not mean that those contracts are excluded from community law.” l “… bound to comply with the fundamental rules of the Treaty.” (C-59/00 Bent Mousten Vestergaard, p 20)

31. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ Case law l “That obligation of Transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.” (C-324/98 Telaustria p 62, C- 458/03 Parking Brixen p 49)

32. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ Case law (C-195/04 Opinion of Advocate general) l A sufficient degree of publicity for low value contracts ? - “not necessarily an obligation to publish” - “.. The appropriate degree of publicity is to be determined by reference to the potential market for that contract.” -“ a sufficient degree of publicity for low value contracts a matter for national law”

33. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Objective of public procurement policy outside the scope of the directives l Same as above thresholds ? (Establishment of a single market, Open up public procurement to competition, value for money, anti- corruption tool) l Public Procurement directives suitable legislation also for below EU thresholds ?

34. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Public Procurement Outside the scope of the EU directives – The Swedish Example l ~ 95 % of total nr of procurement procedures ( 200 000) l ~ 80 % of total procurement value l ~ 32 billion EUR l Legal framework below thresholds applied by many contracting entities (10 000) and procurement officers l Nr of complaint procedures ???

35. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Background l 1952, Procurement Ordinance (domestic preferences removed) l 1973 Procurement Ordinance and Procurement Regulation l 1994 The Swedish Public Procurement Act (interpretation of the rules for procurement outside the scope of the EU directives in accordance with the ”old” procurement regulation

36. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Swedish Public Procurement Acts l Two new laws in force 1st January 2008 (classic and utilities) 16 chapters: (1-2 general provisions, 15 procurement outside the scope of the directives, 16 remedies l Provisions regarding public procurement outside the scope of the directives presently drafted by government with the purpose to simplify (implemented ? 2009, 2010)

37. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Chapter 15 (PP ACTS) l Contracts below the EU threshold values l B-services irrespective of value l Secrecy or other special restrictions in respect of national secrecy – regardless of value l Defence, supplies and services which have no civil use – regardless of value

38. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Procedures ( Chapt 15 PP Acts) l Simplified Procedure: - all suppliers entitled to submit tenders - negotiation possible with one or several tenderers l Selective Procedure: - all suppliers entitled to apply to submit tenders - the contracting entity invites certain suppliers to submit tenders - negotiation possible with one or several tenderers l Informal Procedure: - No formal requirements

39. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Publication requirements l Simplified procedure: the notice shall be published in an electronic database which is publicly accessible or through the publication of contract notices in some other way - which leads to efficient competition. l Selective procedure: the invitation to apply to tender should be published in an electronic database which is publicly accessible l Content of Notice

40. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Written request for tenders l Under certain circumstances the contracting entities may send a written request for tenders to a supplier without publishing a contract notice.

41. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Informal Procedure l Low value l Particular reasons, such as great urgency resulting from circumstances which could not have been anticipated and are outside the control of the entity, may procurement take place without formal requirements

42. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Informal Procedure l The contracting entity should if needed establish an internal policy for the use of the informal procedure

43. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Time limits l Simplified Procedure - Reasonable time l Selective Procedure - Reasonable time (never less than 10 days from the day on which the invitation to apply was published)

44. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU l Tender opening l Technical specifications - Not limited except reference to Environmental specifications l Award of contract - Relative weighting or Ranking

45. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Remedies l Review and Damages same above and below EU thresholds l County Administrative Court (Review) l District Court (damages)

46. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Thank You ! Linda Dahlström Swedish Competition Authority linda.dahlstrom@kkv.se