Embed Size (px)
DESCRIPTION
Relevant EU and International Policy and Legal Framework. Linda Dahlström Swedish Competition Authority. Seminar on Green Public Procurement Bucharest, 30-31 October 2007. Sustainable Development. - PowerPoint PPT Presentation
Citation preview
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
U Relevant EU and International Relevant EU and International Policy and Legal FrameworkPolicy and Legal Framework
Linda Dahlström
Swedish Competition Authority
Seminar on Green Public ProcurementBucharest, 30-31 October 2007
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
USustainable Sustainable
DevelopmentDevelopment
“development that meets the needs of the present without compromisisng the ability of future generations to meet their own needs”
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UEU policy Framework (1) EU policy Framework (1)
Treaty of Amsterdam
European Sustainable Development Strategy (June 2001)
Sixth Environment Action programme- Integrated Product Policy
- National Action Plans- Handbook on Green Procurement (Buying Green)- A Product Group Database- A GPP Website
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UEU policy Framework (2) EU policy Framework (2)
Communication on Stimulating technologies for Sustainable Development: an Environmental Technologies action plan (2004)
Renewed EU Sustainable Development Strategy (June 2006)
Commission interpretative communication on environmental considerations in public procurement (COM(2002)274 final)
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
U
Related PoliciesRelated Policies The EU Eco-label scheme EMAS – The EU Eco-Management
and Audit Scheme Reach Energy related policies
- Buildings- Products- Services
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UInternational Policy International Policy
FrameworkFramework
United Nations- World Summit on Sustainable Development, Johannesburg 2002,
OECD WTO International Conventions and
agreements - Kyoto Protocol on climate change
(2002)
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
U
Legal FrameworkLegal Framework
EC Treaty Government Procurement Agreement
(GPA) Public Procurement Directives
(2004/18/EC and 2004/17/EC) Judgments of the European Court of
Justice National legislation
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UPublic Procurement DirectivesPublic Procurement Directives
“Classic“ Sector“Directive Directive 2004/18 EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L134 of 30.4.2004) and amendments/corrigenda
“Utilities”Directive
Directive 2004/17 EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sector (OJ L134 of 30.4.2004) and amendments/corrigenda
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UPrinciples deriving from Principles deriving from
TreatyTreaty (recital 2, Dir.2004/18/EC(recital 2, Dir.2004/18/EC))
The freedom of movement of goods
and freedom to provide services Equal treatment Non-discrimination Mutual recognition Proportionality Transparency
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UDirective 2004/18/ECDirective 2004/18/EC
Under art. 6 of the treaty, environmental
protection requirements are to be integrated
into the definition and implementation of the
Community policies and activities referred to
in art. 3 of that Treaty, in particular with a
view to promoting sustainable procurement
This directive therefore clarifies how the
contracting authorities may contribute to the
protection of the environment and the
promotion of sustainable development, whilst
ensuring the possibility of obtaining the best
value for their contracts.
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UStages of Procurement Stages of Procurement
ProcedureProcedure
Definition of subject matter Technical specifications Selection of tenderers Award of contract Execution of the contract
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UDefinition of the subject Definition of the subject matter of the contractmatter of the contract
”What do I, public authority, wish to construct or purchase?”
Subject matter of contract may not be defined in such a way that has as its aim, or results in, a reservation of access to the contract for domestic companies to the detriment of tenderers from other MS.
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UTechnical specificationsTechnical specifications
(Art. 23, rec. 29, Annex VI, (Art. 23, rec. 29, Annex VI, Dir.2004/18/ECDir.2004/18/EC))
Article 23 Technical standards Performance or functional requirements
– Environmental characteristicsuse specifications or part of specifications as defined by Eco-labels provided specifications: appropriate, scientifically based, accessible to all interested parties, adopted through a procedure with extensive dialogue
Accept any appropriate means of proof
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UTechnical specificationsTechnical specifications
((Art. 23, recital 29, Annex VI Art. 23, recital 29, Annex VI Dir.2004/18/EC)Dir.2004/18/EC)
Article 23 Unless justified by the subject-matter of the
contract technical specifications shall not refer to a specific make or source, particular process, trade marks, patents, or a specific origin or production with the effect of favouring or eliminating certain undertakings or products
Permitted on exceptional basis- Where sufficiently precise and intelligible description
of the subject matter not possible, accompanied by the words ”or equivalent”
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UTechnical specificationsTechnical specifications
(rec. 29, Dir.2004/18/EC(rec. 29, Dir.2004/18/EC))
Contracting authorities that wish to define environmental requirements for the technical specifications for a given contract may lay down the environmental characteristics, such as a given production method, and/or specific environmental effects of product groups or services.
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UVariants Variants
(Art. 24, Dir. 2004/18/EC)(Art. 24, Dir. 2004/18/EC)
Indicated in contract notice when authorised
Minimum requirements stated in contract documents
Economically most advantageous tender
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
U
Selection of candidates or Selection of candidates or tenderers tenderers (Rec. 43, Art. 45 (Rec. 43, Art. 45
Dir.2004/18/EC)Dir.2004/18/EC) If national law contains provisions to this effect:
Cases that may lead to exclusion of tenderers or candidates that could include environmental concern;- convicted of an offense concerning his professional conduct by a judgement….or
- guilty of grave professional misconduct proved by any means which the contracting authorities can demonstrate.
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
U
Selection of candidates or Selection of candidates or tenderers tenderers (Rec. 44, Art. 48,50 (Rec. 44, Art. 48,50
Dir.2004/18/EC)Dir.2004/18/EC)
Capability to execute the contract; economic, financial or technical capacity
Require evidence of technical abilities: environmental management measures applied when performing the contract- for public works and services contracts- only in appropriate cases- environmental management standards
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
USelection of candidates or Selection of candidates or
tenderers tenderers (Rec. 44, Art. 48,50 Dir.2004/18/EC)(Rec. 44, Art. 48,50 Dir.2004/18/EC)
Accept other evidence of equivalent
environmental managment measures
from economic operators
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UAward of contractAward of contract
(Rec.1, Art. 53 Dir.2004/18/EC)(Rec.1, Art. 53 Dir.2004/18/EC)
When the award is made to tender most economically advantageous from the point of view of the contracting authority, i.e. environmental characteristics - linked to the subject-matter of the contract- not confer an unrestricted freedom of
choice- expressly mentioned- comply with fundamental principles
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
U
Conditions for performance of Conditions for performance of contractscontracts
(Rec. 33, Art. 26 Dir.2004/18/EC)(Rec. 33, Art. 26 Dir.2004/18/EC)
Special conditions relating to performance of contract;
- compatible with Community law
- indicated in the contract notice or specifications
- may concern social or environmental considerations
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
U
ECJ Case lawECJ Case law
C-31/87 Beentjes
C-225/98 Nord-Pas-de-Calais
C-324/93 Evans Medical
C-379/98 Preussen Electra
C-513/99 Concordia
C-448/01 EVN v Austria
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UECJ, C-513/99, ECJ, C-513/99, Concordia BusConcordia Bus, ,
Helsinki awarded contract for operation of urban bus route to HKL challenged by Concordia: award criteria incl. ecological criteria
– level of nitrogen oxide emissions and noise level of buses
ECJ allowed ecological award criteria:
– are linked to the subject matter of contract;
– do not confer unrestricted freedom of choice;
– specified in tender notice or documents;
and
– comply with EU law principles, part. non-discrimination ECJ: no (indirect) discrimination even though criteria limit
number of tenderers
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UECJ, C-448/01, ECJ, C-448/01, EVN, (1)EVN, (1)
Rep of Austria invited tenders for framework contract for supply of electricity to the Federal Republic’s offices
Award criteria: Impact of the services on the environment– net price per kilowatt hour (kWh): weighting 55 %
– energy produced from renewable energy sources in excess off 22,5 GWh/a: weighting of 45 %
ECJ held that ecological criteria may be taken into consideration if the four criteria set out in Concordia Bus are complied with
Criteria does not necessarily serve to achieve the objective
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UECJ, C-448/01, ECJ, C-448/01, EVN, (EVN, (22))
An award criterion that relates solely to the amount of electricity produced from renewable energy sources in excess of the expected annual consumption, as laid down in the invitation to tender, cannot be regarded as linked to the subject-matter of the contract.
A criteria should be accompanied by requirements that permit the accuracy of the information contained in the tenders to be effectively verified
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
UPublic contracts not covered Public contracts not covered
by the directivesby the directives
Contracts below the threshold of the directive
B-services contracts are not subject to all obligations of the directives
Application of the Treaty rules in the field of free movement and non-discrimination
Fundamental principles apply
© OECD
A jo
int
initi
ativ
e of
th
e O
EC
D a
nd t
he E
urop
ean
Uni
on,
prin
cipa
lly f
inan
ced
by t
he E
U
Thank You !Thank You !
