Introduction

Climate change is widely recognized as the biggest threat to our society. With the Kyoto Protocol before and the Paris Agreement then, many states worldwide and the EU agreed to commit to drastically reducing GHG emissions to avoid getting to the point of no return for the planet and the beings living in it. While agreements deriving from public international law often suffer from non-compliance due to a lack of enforcement mechanisms, EU Law must be complied with as otherwise Member States would face infringement procedures and potential financial penalties. The EU Climate Law adopted in 2021 created a legal commitment to climate neutrality for the EU as a regional organization and its Member States, which has more chances to be complied with and spur change accordingly.

The Role of Green Public Procurement (GPP)

Since the EU Climate Law does not specify how Member States are to achieve the targets set therein, it is worth asking what roles (EU) States and their institutions have in the concerted effort required to reduce emissions. The concept of Green Public Procurement (GPP) and its legal implications have been the subject of academic interest for some years. However, the concept falls short of the climate neutrality obligation, as it does not create obligations for contracting authorities and was not created with the specific objective of reducing GHG emissions, but rather to grant the discretion of reducing environmental generally. Furthermore, there has been a recent increase in the adoption of environmental laws that impose obligations on contracting authorities, which has led to a blurring of the distinction between environmental and climate law on the one hand and EU procurement law on the other. This situation raises the question of whether and how contracting authorities are required by EU Treaties, climate law and sectoral laws to contribute to emission reductions.

Research Focus

Federica Muscaritoli’s PhD thesis investigates this question by analyzing primary and secondary EU climate and environmental law in light of Directive 2014/24 on the procurement of goods, services and works. The webinar specifically focuses on the interaction between Article 18(2) of Directive 2014/24 (the ‘sustainability principle’) and one of the cardinal environmental principles of the EU Treaties, Article 11, known as the ‘Environmental Integration Principle’or EIP.  In particular, Federica showcases that Article 18(2) legal meaning is not as arcane as, consistently with its wording, it only applies to the execution phase of a public contract. As far as Article 11 TFEU is concerned, an obligation to integrate environmental requirements into the definition and implementation of policies and activities is provided. Building on existing literature, it is submitted that ‘activities’ includes the law making process, indicating that EU secondary laws must contain environmental related obligations.  As the core of Federica’s analysis is Directive 2014/24, she investigated whether the obligation deriving from the EIP is complied with therein. She asserts that the only two provisions which can be considered an expression of the obligation stemming from the EIP are Article 18(2) and 69(3) as the only ones in the Directive containing environmental protection requirements. She argues, though, that the two provisions represents a rather ‘poor’ expression of the EIP, which is also discernible from the implementation of the same norms in Member States’ procurement codes, where they are often not mandatory.

Agenda 

Total duration: 2 hours

• Introduction – Associate Professor Marta Andhov.
• 40-minutes presentation on the PhD project – ESR12 Federica Muscaritoli.
• 55 minutes feedback – Professor Sarah Schoenmaekers.
• 5-minutes open floor for questions and closing remarks.