The Link to the Subject-Matter: A Glass Ceiling for Sustainable Public Contracts?
University of Oslo as part of the European Law Conference 2014, Forthcoming volume published by Cambridge University Press
18 Pages Posted: 15 Feb 2015 Last revised: 20 Apr 2015
Date Written: February 4, 2015
The reform of the EU procurement directives has introduced or refined a number of techniques for sustainable public contracting. However it has also applied a general limiting principle in the form of the ‘link to the subject-matter’ (LtSM) requirement, derived from the case law of the Court of Justice. This limiting principle is intended to restrict the ability of contracting authorities to apply general corporate sustainability requirements or preferences in their procurement. This paper examines the origins and possible justifications for the LtSM requirement, questioning its coherence and clarity. It then turns to an analysis of how it may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. An alternative approach is outlined based upon a looser interpretation of the requirement, supported by an understanding that procurement decisions do not constitute a form of regulation but are uniquely placed to test the effectiveness of measures for sustainable production and consumption.
Keywords: public procurement, EU procurement directives, Directive 2014/24/EU, sustainable public procurement, link to the subject-matter, green public procurement, corporate social responsibility, carbon footprint, SPP, GPP, public contracts, renewable energy, award criteria
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