How to Procure Sustainable Food and Include Farmers in Public Procurement? - Legal Constraints and Opportunities

Abstract

This study explores the integration of sustainability into public food procurement, focusing on its alignment with the EU public procurement legal framework.

The study begins by providing an introduction to EU procurement law in order to highlight its relevance for sustainable public food procurement. This has been achieved by highlighting fundamental principles of EU public procurement law. Furthermore, an overview of historical EU legal developments (CJEU case law, Public Sector Directives and soft law instruments) that led to integrating sustainability considerations into public procurement is provided.

The core of the study thoroughly examines several conceptualizations of sustainable food, such as organic, local, fresh, seasonal, fairly traded, and those involving short supply chains, assessing how these definitions influence procurement decisions and align with current laws. Furthermore, key legal constraints that affect sustainable food procurement are identified - including the necessity for a direct link to the subject matter of the contract, the risk of artificially narrowing competition, the prohibition against splitting contracts to avoid EU procurement rules, and limitations on purchasing ‘local’ food under EU law. Additionally, the study discusses the inclusion of farmers in public procurement processes, highlighting the challenges they face and the opportunities to enhance their participation. It underscores the particular challenges in pursuing socially responsible procurement and the barriers small farmers face in public tenders. Strategies such as dividing tenders into lots, consortia bidding, and subcontracting are proposed to rebalance farmers' positions in public procurement.

Lastly, legislative changes are suggested to facilitate the wider adoption of sustainable food procurement practices. The report concludes with a synthesis of findings and recommendations for future amendments to EU procurement laws to support environmental and social objectives more effectively.

Keywords: public procurement, food, law, sustainability, local, organic, short-supply chain, resilience, culture, tradition, fairly traded, farmers, SMEs, EU

JEL Classification: H57, K00, K32, Q01, Q18