Reform of the EU Procurement Directives and WTO GPA: Forward Steps for Sustainability?

Abstract

The paper examines the scope for social and environmental objectives to be included in public procurement procedures. The concept of sustainable public procurement (SPP) is analysed, and the extent of its implementation by European public authorities. The paper then turns to the legal characterisation of SPP measures and the competence of the EU to regulate in this area. Areas of legal uncertainty are found to exist regarding the specification of production processes and methods, the requirement for a ‘link to the subject-matter of the contract’ and the proper role of contract performance clauses. Conclusions are drawn regarding the likely impact of the reforms proposed by the European Commission on these areas, which are also relevant for the implementation of SPP under the revised WTO Government Procurement Agreement. The paper is intended to lay the groundwork for assessing the legality and effectiveness of different approaches to SPP.