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Relevant EU and International Policy and Legal Framework

Relevant EU and International Policy and Legal Framework. Linda Dahlström Swedish Competition Authority. Seminar on Green Public Procurement Bucharest, 30-31 October 2007. Sustainable Development.

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Relevant EU and International Policy and Legal Framework

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  1. Relevant EU and International Policy and Legal Framework Linda Dahlström Swedish Competition Authority Seminar on Green Public ProcurementBucharest, 30-31 October 2007

  2. Sustainable Development • “development that meets the needs of the present without compromisisng the ability of future generations to meet their own needs”

  3. EU policy Framework (1) • Treaty of Amsterdam • European SustainableDevelopmentStrategy (June 2001) • Sixth Environment Action programme - IntegratedProduct Policy - National Action Plans - Handbook on Green Procurement (Buying Green) - A Product Group Database - A GPP Website

  4. EU policy Framework (2) • Communication on Stimulatingtechnologies for Sustainable Development: an Environmental Technologies action plan (2004) • Renewed EU Sustainable Development Strategy (June 2006) • Commission interpretativecommunication on environmentalconsiderations in public procurement (COM(2002)274 final)

  5. Related Policies • The EU Eco-label scheme • EMAS – The EU Eco-Management and Audit Scheme • Reach • Energy related policies • Buildings • Products • Services

  6. International Policy Framework • United Nations - World Summit on Sustainable Development, Johannesburg 2002, • OECD • WTO • International Conventions and agreements - Kyoto Protocol on climatechange (2002)

  7. Legal Framework • EC Treaty • Government Procurement Agreement (GPA) • Public Procurement Directives (2004/18/EC and 2004/17/EC) • Judgments of the European Court of Justice • National legislation

  8. Public Procurement Directives • “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 30.4.2004) and amendments/corrigenda • “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 30.4.2004) and amendments/corrigenda

  9. Principles deriving from Treaty(recital 2, Dir.2004/18/EC) The freedom of movement of goods and freedom to provide services • Equal treatment • Non-discrimination • Mutual recognition • Proportionality • Transparency

  10. 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.

  11. Stages of Procurement Procedure • Definition of subject matter • Technical specifications • Selection of tenderers • Award of contract • Execution of the contract

  12. Definition of the subjectmatter of the contract • ”What do I, public authority, wish to construct or purchase?” • 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.

  13. Technicalspecifications(Art. 23, rec. 29, Annex VI, Dir.2004/18/EC) Article 23 • Technical standards • Performance or functionalrequirements • Environmentalcharacteristics usespecifications or part of specifications as defined by Eco-labelsprovidedspecifications: appropriate, scientificallybased, accessible to all interestedparties, adoptedthrough a procedure with extensive dialogue Accept anyappropriatemeans of proof

  14. Technicalspecifications(Art. 23, recital 29, Annex VI Dir.2004/18/EC) Article 23 • Unlessjustified by the subject-matter of the contracttechnicalspecificationsshall not refer to a specific make or source, particular process, trade marks, patents, or a specificorigin or production with the effect of favouring or eliminatingcertainundertakings or products • Permitted on exceptional basis - Wheresufficiently precise and intelligibledescription of the subjectmatter not possible, accompanied by the words ”or equivalent”

  15. Technicalspecifications(rec. 29, Dir.2004/18/EC) • Contractingauthorities that wish to defineenvironmentalrequirements for the technicalspecifications for a given contractmaylaydown the environmentalcharacteristics, such as a given productionmethod, and/or specificenvironmentaleffects of productgroups or services.

  16. Variants (Art. 24, Dir. 2004/18/EC) • Indicated in contract notice when authorised • Minimum requirements stated in contract documents • Economically most advantageous tender

  17. Selection of candidates or tenderers(Rec. 43, Art. 45 Dir.2004/18/EC) • If national lawcontains provisions to this effect: • Cases that maylead to exclusion of tenderers or candidates that couldincludeenvironmentalconcern; - convicted of an offenseconcerning his professionalconduct by a judgement….or - guilty of grave professionalmisconductproved by anymeanswhich the contractingauthoritiescandemonstrate.

  18. Selection of candidates or tenderers(Rec. 44, Art. 48,50 Dir.2004/18/EC) • Capability to execute the contract; economic, financial or technicalcapacity • Requireevidence of technicalabilities: environmental management measuresappliedwhenperforming the contract - for public works and services contracts - only in appropriatecases - environmental management standards

  19. 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

  20. Award of contract(Rec.1, Art. 53 Dir.2004/18/EC) • When the award is made to tender mosteconomicallyadvantageousfrom the point of view of the contractingauthority, i.e. environmentalcharacteristics - linked to the subject-matter of the contract - not confer an unrestricted freedom of choice - expressly mentioned - comply with fundamental principles

  21. Conditions for performance of contracts(Rec. 33, Art. 26 Dir.2004/18/EC) • Special conditions relating to performance of contract; - compatible with Community law - indicated in the contract notice or specifications - may concern social or environmental considerations

  22. ECJ Case law • C-31/87 Beentjes • C-225/98 Nord-Pas-de-Calais • C-324/93 Evans Medical • C-379/98 Preussen Electra • C-513/99 Concordia • C-448/01 EVN v Austria

  23. ECJ, C-513/99, Concordia Bus, • 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 • 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 • ECJ: no (indirect) discrimination even though criteria limit number of tenderers

  24. ECJ, C-448/01, EVN, (1) • Rep of Austria invited tenders for framework contract for supply of electricity to the Federal Republic’s offices • 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 % • ECJ held that ecological criteria may be taken into consideration if the four criteria set out in Concordia Bus are complied with • Criteria does not necessarily serve to achieve the objective

  25. ECJ, C-448/01, EVN, (2) • 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. • A criteria should be accompanied by requirements that permit the accuracy of the information contained in the tenders to be effectively verified

  26. Public contracts not covered by the directives • Contracts below the threshold of the directive • B-services contracts are not subject to all obligations of the directives • Application of the Treaty rules in the field of free movement and non-discrimination • Fundamental principles apply

  27. Thank You !

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