Is public procurement fit for reaching sustainability goals? A law and economics approach to green public procurement
| Author | Kirsi-Maria Halonen |
| Date | 01 August 2021 |
| DOI | 10.1177/1023263X211016756 |
| Published date | 01 August 2021 |
| Subject Matter | Articles |
Article
Is public procurement fit for
reaching sustainability goals?
A law and economics approach
to green public procurement
Kirsi-Maria Halonen*
Abstract
Green public procurement is assumed to have astrongsteeringeffect.TherecentEUGreen
Deal contains proposals to amend green public procurement rules from voluntary to mandatory
regulation, which has been endorsed by several legal scholars. At the same time, the effectiveness
of green public procurement as an environmental policy tool has been studied in economics,
where research results present a reserved approach towards green public procurement’s
effectiveness. This article examines green public procurement applying a law and economics
methodology, with the goal of combining the approaches from different disciplines and finding
ways in which environmental objectives can be effectively addressed through procurement
regulation. The main conclusions are that the steering effect, costs and potential environmental
impact of green public procurement vary in different industries and therefore a sector-specific
approach should be adopted in the development of green public procurement regulation. In
order to encourage companies to invest and develop their operations in a greener direction,
it is important that a large number of contracting authorities use harmonized green public
procurement criteria. Further, the effects of green public procurement regulation on competition
and emissions from the private consumer market should be monitored and the potential of public
procurement to achieve environmental objectives should be explored and compared with other
policy options.
Keywords
Public procurement, sustainability, competition, law and economics, EU policy
* Docent, Senior Lecturer in Commercial Law, University of Lapland, Rovaniemi, Finland
Corresponding author:
Kirsi-Maria Halonen, University of Lapland Faculty of Law, Yliopistonkatu 8, Rovaniemi, 96101, Finland.
E-mail: kirsi-maria.halonen@ulapland.fi
Maastricht Journal of European and
Comparative Law
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211016756
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MJ
2021, Vol. 28(4) 535–555
1. Introduction
In its Europe 2020 strategy, the European Commission identified and recognized public procure-
ment’s significance in the promotion of sustainability across the EU.
1
The current Procurement
Directive 2014/24/EU underlines such emphasis by stating that ‘this Directive clarifies how the
contracting authorities can contribute to the protection of the environment and the promotion of
sustainable development while ensuring that they can obtain the best value for money for their
contracts’,
2
and the current public procurement strategy highly prioritizes a more intense use of
strategic procurement to achieve sustainability goals.
3
According to the Commission, sustainable
public procurement is ‘( ...) whereby contracting authorities take account of all three pillars of
sustainable development (economic, social and environmental), when procuring goods, services or
works’.
4
Green public procurement (later referred as ‘GPP’) is one these three strands of sustain-
ability and has its emphasis on minimizing the harmful environmental impact of public purchases.
Here GPP stands for all kind of environmental criteria including technical specifications, selection
criteria, exclusion grounds, contract award criteria and contract provisions. This paper is focused
on GPP, which has lately developed, as Trybus puts it, into a separate category of sustainability in
public procurement
5
and thus social public procurement, which in turn aims in creating employ-
ment opportunities, promoting be tter employment conditions and sta ndards, ethical trade and
design for all, is not discussed.
The requirementto promote sustainabilityand environmentalprotection particularlyis engraved in
the EU Treaties.
6
As Sja
˚fell and Wiesbrock point out, balancing economic efficiency with environ-
mental or social goals should not be about choosing one over another, but rather about designing
measuresthrough which these differentobjectives can co-exist.
7
However,it is not always easy to find
a balancebetween these – at times– conflicting goals.On the other hand, Kingstonargues thatthere are
signs of economicaspects ruling over environmental objectives in EU’scurrent policies.
8
This seems
1. European Commission, Europe 2020. A strategy for smart, sustainable and inclusive growth, COM(2010) 2020 final.
2. 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, recital 91.
3. European Commission, Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions: Making Public Procurement Work In and For
Europe. COM/2017/0572 final, p. 8.
4. European Commission, ‘Sustainable public procurement’, http://ec.europa.eu/environment/gpp/glossaryen.htm.
5. M. Trybus, ‘Colloquium/Response to Paper 2’, in G. Piga and T. Tatrai (eds.), Public Procurement Policy (Routledge,
2016), p. 15.
6. See Article 3(3) of TEU, according to which ‘[t]he Union shall establish an internal market. It shall work for the
sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social
market economy, aiming at full employment and social progress, and a high level of protection and improvement of the
quality of the environment’ and Article 11 TFEU where it is stated that ‘[e]nvironmental protection requirements must
be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to
promoting sustainable development.’
7. B. Sja
˚fell and A. Wiesbrock, ‘Why should public procurement be about sustainability?’ in B. Sja
˚fell and A. Wiesbrock
(eds.), Sustainable Public Procurement Under EU Law: New Perspectives on the State as Stakeholder (Cambridge
University Press, 2015), p. 4.
8. S. Kingston, ‘The uneasy relationship between EU environmental and economic policies. The role of the Court of
Justice’, in B. Sja
˚fell and A. Wiesbrock (eds.), Sustainable Public Procurement Under EU Law: New Perspectives on
the State as Stakeholder, p. 26, where Kingston presents several signs of current shift towards economic and
employment preferences over environment including the EU’s 2030 Climate and Energy Policy Framework where
economy and employment is identified as EU’s ‘highest priority’.
536 Maastricht Journal of European and Comparative Law 28(4)
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