Promoting Social and Environmental Sustainability: What Role for Public Procurement?

With the view to the focus on sustainability that permeates EU policy discourse, this paper considers whether EU rules on public procurement, and Directive 2014/24/EU in particular, could provide a legal framework in which social and environmental sustainability concerns can be meaningfully addressed. Grounded on the principle of competition (Art 18), the key function of procurement rules is to ensure transparency and non-discrimination. Unlike employment and environmental law, these rules do not expressly aim to protect workers or consumers. Nevertheless, public authorities required to procure services or goods may use this process to advance social and environmental interests. They may even ‘penalise’ economic operators by excluding them from participation in a procurement procedure if they prove unreliable, e.g. because they have violated international, EU or national environmental and/or social obligations. This paper considers whether EU public procurement rules are actually suitable for establishing social and environmental sustainability. The applicable public procurement rules are outlined and assessed vis-à-vis a number of sustainability indicators which are drawn from literature on ‘sustainability’ and ‘sustainable development’. The paper suggest that given the strong market principles on which the rules are grounded, promoting social and environmental sustainability within the existing legal framework is a challenge, especially as social and environmental values are less clearly articulated in EU policy than the economic ones. The paper concludes with suggestions on how social and environmental values can be strengthened within EU policy framework so as to enable a more balanced use of the public procurement rules.