TY - JOUR

T1 - Sustainability requirements in EU public and private procurement – a right or an obligation

AU - Andrecka, Marta

AU - Peterkova, Katerina

PY - 2017/9/29

Y1 - 2017/9/29

N2 - Procurement is no longer just about buying the cheapest possiblesupplies or services. Rather, it is understood as a process wherebyorganisations meet their needs in a way that achieves value for money ona lifetime basis and allows delivering aspects beyond savings, so-calledsustainable procurement. This is true both for the public and privatesectors. However, there is only limited legal regulation of sustainableprocurement, which causes many uncertainties in respect to the possibilityto include sustainability concerns into procurement processes as well asconsequences of (not) doing so. The article thus focuses on the questionswhether pursuing sustainability goals through procurement is anorganisation's right or obligation and whether there are any risks of liabilityassociated with pursuing or ignoring sustainability goals. These questionsare analysed from the two perspectives of public and private procurementand similarities and differences between the sectors are identified.We find that in both sectors sustainability topics (i) are increasinglyconsidered and implemented into contracts; (ii) deal with similar issues inboth contexts; (iii) cover issues that are linked to the subject matter of acontract, including issues that relate rather to production process than thephysical qualities of the delivered goods as such; and (iv) proliferatethrough all stages of the procurement process. However, the drivers ofsustainability procurement and the legal regulation differ substantially.Still, it is found that while there is a right to include sustainabilityconsiderations into both public and private procurement processes, thereare only contours of the legal obligation to do so. In respect to privateprocurement, the right to give considerations to sustainability issues is notexpressly stated by the applicable law as it is in respect to publicprocurement (though limitations apply there as well). In fact, in bothsectors the right mostly stems from the fact that there is no regulationforbidding this. Quite counter-intuitively then, there seem to be more legalrisks associated with the inclusion of sustainability requirements into theprocurement process (and inadequate enforcement thereof) rather thanwith ignoring them.

AB - Procurement is no longer just about buying the cheapest possiblesupplies or services. Rather, it is understood as a process wherebyorganisations meet their needs in a way that achieves value for money ona lifetime basis and allows delivering aspects beyond savings, so-calledsustainable procurement. This is true both for the public and privatesectors. However, there is only limited legal regulation of sustainableprocurement, which causes many uncertainties in respect to the possibilityto include sustainability concerns into procurement processes as well asconsequences of (not) doing so. The article thus focuses on the questionswhether pursuing sustainability goals through procurement is anorganisation's right or obligation and whether there are any risks of liabilityassociated with pursuing or ignoring sustainability goals. These questionsare analysed from the two perspectives of public and private procurementand similarities and differences between the sectors are identified.We find that in both sectors sustainability topics (i) are increasinglyconsidered and implemented into contracts; (ii) deal with similar issues inboth contexts; (iii) cover issues that are linked to the subject matter of acontract, including issues that relate rather to production process than thephysical qualities of the delivered goods as such; and (iv) proliferatethrough all stages of the procurement process. However, the drivers ofsustainability procurement and the legal regulation differ substantially.Still, it is found that while there is a right to include sustainabilityconsiderations into both public and private procurement processes, thereare only contours of the legal obligation to do so. In respect to privateprocurement, the right to give considerations to sustainability issues is notexpressly stated by the applicable law as it is in respect to publicprocurement (though limitations apply there as well). In fact, in bothsectors the right mostly stems from the fact that there is no regulationforbidding this. Quite counter-intuitively then, there seem to be more legalrisks associated with the inclusion of sustainability requirements into theprocurement process (and inadequate enforcement thereof) rather thanwith ignoring them.

M3 - Journal article

SP - 56

EP - 89

JO - Nordic Journal of Commercial Law

JF - Nordic Journal of Commercial Law

SN - 1459-9686

IS - 1

ER -