Bridging the gap between corporate sustainability due diligence and EU public procurement
| Published date | 01 October 2023 |
| DOI | http://doi.org/10.1177/1023263X231213335 |
| Author | Laura Treviño-Lozano,Ezgi Uysal |
| Date | 01 October 2023 |
Bridging the gap between
corporate sustainability due
diligence and EU
public procurement
Laura Treviño-Lozano * and Ezgi Uysal **
Abstract
The link between human rights and environmental due diligence and public procurement has been
recognized in soft law, and in a less consistent way in EU hard law. Particularly, it has been an issue
of concern in the law-making process for the EU Corporate Sustainability Due Diligence Directive.
Despite increasing attention, considerable debate remains over the inclusion of human rights and
environmental due diligence in public procurement, which is still an underdeveloped topic. This
article contributes to enlightening the debate and filling this gap by exploring the link between
human rights and environmental due diligence and public procurement, then by analysing whether
and how human rights and environmental due diligence can be incorporated into EU public pro-
curement as a contract performance condition and comply with the requirement of the link to the
subject matter of the contract.
Keywords
Human rights and environmental due diligence, socially responsible public procurement, green
public procurement, sustainable criteria, contract performance conditions, link to the subject
matter, UNGPs, OECD Guidelines for Multinational Enterprises on Responsible Business
Conduct, Corporate Sustainability Due Diligence Directive, EU Public Procurement Directive
2014 24
*
Faculty of Liberal Arts and Sciences, University of Greenwich, London, UK
**
Department of Law, Università degli Studi di Torino, Torino, Italy
Corresponding author:
Laura Treviño-Lozano, Faculty of Liberal Arts and Sciences, University of Greenwich, Old Royal Naval College, Park Row,
London SE10 9LS, UK
Email: l.trevinolozano@greenwich.ac.uk
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(5) 554–572
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231213335
maastrichtjournal.sagepub.com
1. Introduction
Human Rights Due Diligence (HRDD) is a set of business processes to identify, avoid and
account for human rights impacts companies may cause or contribute to cause.
1
While the UN
Guiding Principles on Business and Human Rights (UNGPs) address it as a process that
covers human rights without an explicit mention to the environment, this article embraces its
broad notion known as human rights and environmental due diligence (HREDD). HREDD
involves six steps carried out by enterprises that entail integrating human rights and the environ-
ment into policies and management systems, identifying, assessing and addressing human rights
and environmental adverse impacts, as well as monitoring, giving transparency and communicat-
ing the entire process.
2
Public procurement, on the other hand, is a process whereby the public sector buys from the
market the goods, services and works it needs to accomplish its functions.
3
This article is
focused on the procurement of goods, particularly when they are produced through global
supply chains. Public procurement accounts for 14% of the EU’s GDP.
4
Typically, it was governed
only by economic objectives through the purchase of the cheapest tender. But this way of buying
has gradually changed and allowed for the integration of other non-economic aims into the process,
namely, social and environmental objectives.
This shift involved the emergence of the term ‘sustainable public procurement’. Whilst many
definitions have been given, sustainable public procurement can be understood as ‘the process
whereby a public entity contracts from a private entity goods, services or works it needs to cover
its functions and needs in a way that considers the protection of human rights, including prevention
and redress of abuses in the supply chain and the environment as a core element in its lifecycle, from
early design and planning to its disposal or decommission and where such protection is transparent
and accountable’.
5
In the EU, Directive 2014/24 on public procurement endorsed non-economic objectives.
6
There is a principle in public procurement enshrined in Article 18(2) which has ‘cardinal
value’like any other principle.
7
This provision mandates Member States to take appropriate
measures to ensure compliance with environmental, social and labour law obligations under
Union law, national law, collective agreements or international law. Due to the emphasis on
1. J. Bonnitcha and R. McCorquodale, ‘The Concept of Due Diligence in the UN Guiding Principles on Business and
Human Rights’,28European Journal of International Law (2017).
2. OECD, OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, OECD (2023), https://doi.org/
10.1787/81f92357-en.
3. S. Arrowsmith, ‘A Taxonomy of Horizontal Policies in Public Procurement’, in S. Arrowsmith and P. Kunzlik (eds),
Social and Environmental Policies in EC Procurement Law: New Directives and New Directions (Cambridge
University Press, 2009), p. 108.
4. European Commission, Buying Social A Guide to Taking Account of Social Considerations in Public Procurement (2nd
Edition, 2021) C(2021) 3573 final, p. 6.
5. L. Treviño-Lozanoand O. Martin-Ortega, ‘Sustainable Public Procurement of Infrastructure and Human Rights: Linkages
and Gaps’, in O. Martin-Ortega and L. Treviño-Lozano (eds), Sustainable Public Procurement of Infrastructure and
Human Rights (Edward Elgar, 2023), p. 19.
6. Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and
repealing Directive 2004/18/EC [2014] OJ L 94/65.
7. Case C-395/18 Tim SpA –Direzione e coordinamento Vivendi SA v. Consip SpA and Ministero dell’Economia e delle
Finanze, EU:C:2020:58, para. 38.
Treviño-Lozano and Uysal 555
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