Will corporate sustainability due diligence Directive’s rules meet those of the EU public procurement Directive?

Our Early-Stage Researchers Laura Treviño-Lozano (University of Greenwich) and Ezgi Uysal (University of Turin) published an open-access journal article titled “Bridging the gap between corporate sustainability due diligence and EU public procurement” in the Maastricht Journal of European and Comparative Law. The initial version of the paper was presented at the 5th European Conference on Sustainable and Innovative Public Procurement in Lisbon. Our ESRs contributed to Oxford Pogo’s session on ‘Supply chain due diligence and public procurement’ and WorldCC Foundation’s compliance and accountability workshop in the framework of the Academic Symposium Advancing Sustainable Contracting with their findings concerning the upcoming Corporate Sustainability Due Diligence Directive and public procurement.

 5th European Conference on Sustainable and Innovative Public Procurement in Lisbon

What are the main topics addressed in this article?

Public procurement is a significant economic driver, accounting for 14% of the EU’s GDP. Traditionally governed by economic objectives, public procurement has evolved to embrace non-economic aims, what is known as “sustainable public procurement”. The SAPIENS Network aims to enhance the European and international knowledge base on Sustainable Public Procurement through interdisciplinary research, addressing the evolving challenges of the 21st century. The Network seeks to contribute to the actual adoption and effectiveness of SPP, reinforcing its relevance to ongoing legislative discussions highlighted in the article.

The article underscores the existing research gap in legally incorporating Human Rights and Environmental Due Diligence (HREDD) into public procurement.  While soft law, such as the UN Guiding Principles (UNGP), establishes a linkage between HREDD and businesses in the state’s supply chain, there is an evident research gap on how HREDD can be legally incorporated into public procurement, particularly in the EU. The fragmented approaches at the domestic level within member states, the lack of clarity from the EU, and the recent debate on the Corporate Sustainability Due Diligence (CSDD) Directive highlight the uncertainties surrounding the integration of HREDD into public procurement, forming the basis for the article’s aim to contribute to this underexplored aspect in the existing literature. The article explores the intersection of human rights and environmental due diligence (HREDD) and public procurement, particularly within the EU context. The article focuses on the procurement of goods, particularly those produced through global supply chains, and discusses the integration of sustainability into procurement processes, emphasizing the so-called “principle of sustainability” enshrined in Directive 2014/24.

What are the main legal frameworks that this article explores?

The EU Corporate Sustainability Due Diligence Directive proposal and the EU Public Procurement Directive 2014/24

How does this article consider due diligence?

While the UN Guiding Principles on Business and Human Rights focus on human rights without explicit mention of the environment, the article advocates for a broader perspective known as human rights and environmental due diligence (HREDD).

What are the main conclusions?

There is a link between HREDD and public procurement. Despite the recognition of the link between HREDD and public procurement in both soft and EU hard law, harmonization and consistency are lacking. HREDD can be set as a sustainable criterion in its form of contract performance condition and meet the link to the subject matter of the contract. Yet there are four main challenges to be considered in forthcoming legislation to make it operationalizable.

Why is this article innovative? What are the main contributions?

The article contributes to the ongoing debate by addressing the challenges and implications of incorporating HREDD into public procurement, with a specific focus on contract performance conditions and the requirement of the link to the subject matter of the contract.

It also adds value to the debate in the literature on the scope of the link to the subject matter of the contract and whether or not is a concept that is still fit for purpose in the context of sustainable public procurement.

As the legislative work on a Corporate Sustainability Due Diligence Directive is still ongoing, the article responds to the need for a comprehensive review of Directive 2014/24 in the context of HREDD, emphasizing the importance of aligning procurement practices with principles of human rights and environmental responsibility for a sustainable future.

Laura and Ezgi brainstorming on a sunny London day at the University of Greenwich where Laura carries out her research and Ezgi was a visiting researcher.

Read the full article “Bridging the gap between corporate sustainability due diligence and EU public procurement” in open access below.