Introduction
Our Lead Researcher, associate professor Marta Andhov, has co-authored a newly published study, “How to Procure Sustainable Food and Include Farmers in Public Procurement? – Legal Constraints and Opportunities,” Other co-authors include Professor Michał Kania (the University of Silesia and senior researcher at the University of Copenhagen) and graduate research assistant Sven Mikulic (Centre of Private Governance at the University of Copenhagen). This 115-page study offers insights for academics, decision-makers as well as public procurement professionals. It addresses the possibilities and legal limitations of integrating sustainability criteria in public food procurement and examines the possibilities and limitations of integrating farmers into the public procurement process.
The authors extend their thanks to ESR 15 Chiara Falvo for sharing her research thoughts, as well as network coordinator Professor Roberto Caranta for providing feedback on the draft of the study.
Scope of the study
The study begins by providing an overview of EU public procurement law and its relevance to sustainable food procurement (SpF). Afterwards, the study discusses the concept of sustainable food and what it means to procure sustainable food. The authors conclude that the concept of sustainable food is multifaceted, i.e., procuring sustainable food means keeping environmental, health, economic, social, ethical, quality and resilience considerations in mind. Food is not to be understood as any other commodity, but as a fundamental component of human survival – which is why it requires special attention.
As public procurement law is relevant in all public food procurements, the authors provide an overview of core EU public procurement principles, i.e., principles of equal treatment and non-discrimination, transparency, proportionality, and sustainability. They also discuss the prohibition of artificially narrowing down the competition. These principles and the prohibition of artificially narrowing down the competition are outlined as they are critical for understanding the “spirit of the EU public procurement legislative framework”. More precisely, these are weaved into virtually every step of the procurement process and public food procurers must observe them them when designing and conducting legally compliant SpF procedures. Thus, outlining them is a great starting point in locating legal constraints and possible opportunities for SpF within the EU public procurement legislative framework. Furthermore, to contextualize the issues of inclusion of sustainability criteria in food procurements, the authors provide the general evolution of sustainability considerations within the EU public procurement legislative framework, i.e., CJEU case law, EU public procurement directives and EU “soft” law instruments.
Legal Constraints and Opportunities in Procuring Sustainable Food
The core of this study is the analysis of the legal barriers and opportunities surrounding SfP. These include the need to establish a link to the contract’s subject matter, risks of artificially narrowing competition, and prohibitions against splitting contracts to circumvent EU procurement rules and the EU’s prohibition on buying local, which applies even to food procurements below the EU threshold; The study additionally analyses various other food sustainability concepts currently advocated and applied in SpF. Specifically, it assesses how well food bearing the EU geographical indications, freshness, seasonality, organic, healthy diets, short supply chains, fairly traded, and cultural tradition and resilience concepts align with existing EU legislative requirements.
Rebalancing the position of a Farmer in Public Procurement
Small farms make up the vast majority of the EU’s farms and are crucial for making food systems more sustainable. Thus, the study discusses the role of small farmers as suppliers in public procurement. It is pinpointed that small farmers often face difficulties in participating in public tenders due to scale, complexity, and the stringent requirements of procurement processes. The study points out the available solutions under the EU public procurement legislative framework to enhance farmers’ access to public procurement markets, such as dividing tenders into smaller lots, and encouraging participation of small farmers through consortium bidding and subcontracting.
Legislative Changes
The study proposes and discusses several legislative changes that could shape the future of SpF. Among the recently proposed legislative developments, the study discussed the proposed EU Green Claims Directive, which has the potential to bolster SfP efforts as it would enable contracting authorities to rely on environmental private labelling schemes present in the EU market with a higher degree of certainty. Furthermore, the study advocates shifting from the ambiguous Link to the Subject Matter concept to the clearly defined Life Cycle Costing in SpF. By doing so contracting authorities could focus on evaluating the real costs (with environmental and social impacts accounted for) of their food purchases. The study also presents potential modalities for mandating SpF, including establishing minimum mandatory criteria using existing – but currently voluntary – EU Green Public Procurement (GPP) criteria and incorporating compulsory minimum targets into EU legislation, allowing Member States flexibility in implementation. Combining clear substantive and procedural guidelines with flexible national targets can enhance SfP practices.
Finally, the study entertains the idea of exempting food procurement from the EU Public Procurement Law as it is recognised that food – as a fundamental resource, human right and important element of culture and resilience – might require special treatment. Still, the conclusion is that exempting food procurement might not achieve the desired outcomes. Instead, enhancing the professionalisation of contracting authorities and raising awareness about the importance of food and existing legal provisions could significantly improve the effectiveness SfP.
Conclusion
The study concludes with a call for a balanced approach to SpF – one that harmonises legal compliance with various facets of food sustainability. It underscores the importance of a holistic approach to food sustainability and highlights various possibilities given by the existing legislative framework to conduct SpF. The pivotal role of small farmers in driving this change is recognized, and measures supporting their participation in SpF are presented. Additionally, legislative measures that would create even more conducive environment for SpF are discussed.
The study has been build up on the work carried out in the frame of the EU funded Horizon 2020 research project COCOREADO – Grant Agreement Number 101000573.
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