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

Abstract

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.