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

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Procurement is no longer just about buying the cheapest possible
supplies or services. Rather, it is understood as a process whereby
organisations meet their needs in a way that achieves value for money on
a lifetime basis and allows delivering aspects beyond savings, so-called
sustainable procurement. This is true both for the public and private
sectors. However, there is only limited legal regulation of sustainable
procurement, which causes many uncertainties in respect to the possibility
to include sustainability concerns into procurement processes as well as
consequences of (not) doing so. The article thus focuses on the questions
whether pursuing sustainability goals through procurement is an
organisation's right or obligation and whether there are any risks of liability
associated with pursuing or ignoring sustainability goals. These questions
are analysed from the two perspectives of public and private procurement
and similarities and differences between the sectors are identified.
We find that in both sectors sustainability topics (i) are increasingly
considered and implemented into contracts; (ii) deal with similar issues in
both contexts; (iii) cover issues that are linked to the subject matter of a
contract, including issues that relate rather to production process than the
physical qualities of the delivered goods as such; and (iv) proliferate
through all stages of the procurement process. However, the drivers of
sustainability procurement and the legal regulation differ substantially.
Still, it is found that while there is a right to include sustainability
considerations into both public and private procurement processes, there
are only contours of the legal obligation to do so. In respect to private
procurement, the right to give considerations to sustainability issues is not
expressly stated by the applicable law as it is in respect to public
procurement (though limitations apply there as well). In fact, in both
sectors the right mostly stems from the fact that there is no regulation
forbidding this. Quite counter-intuitively then, there seem to be more legal
risks associated with the inclusion of sustainability requirements into the
procurement process (and inadequate enforcement thereof) rather than
with ignoring them.
Original languageEnglish
JournalNordic Journal of Commercial Law
Issue number1
Pages (from-to)56-89
Number of pages34
Publication statusPublished - 29 Sep 2017

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