1. Working Paper: EU public procurement system and sustainability considerations

This working paper was drafted by ESR 1 Natalia Spataru, as part of her PhD research on the public procurement (PP) chapters of third-generation Free Trade Agreements (FTAs) and sustainability. The analysis of the EU PP system and sustainability set the foundation for the analysis in the second part of her Ph.D. thesis for the analysis of how trade liberalisation objectives and sustainability objectives coexist and are regulated in a transnational PP system. The working paper was reviewed by Professor Martin Trybus.

2. Abstract

The main aim of this paper is to analyse the accommodation of sustainability considerations within the European Union’s (EU) Internal Market public procurement (PP) system. The paper investigates whether EU PP law can be used as a tool to further sustainability while advancing its main objective of removing barriers to trade and opening PP markets.

The paper will consider whether and how the sustainability aspects of the EU PP system can co-exist with the more traditional ‘primary’ PP objectives within the ‘internal’ EU acquis. To do so, the paper will start with an analysis of the evolution of the EU PP framework, its principles and instruments linked to the operation of the EU Internal Market. To grasp the characteristics of the EU PP system and to understand the logic of its foundations, it is important to review the main objectives of PP in the context of the EU Internal Market.

Considering that the main purpose behind the creation of the EU Internal Market was the elimination of barriers to trade in goods and services free movement of workers, payments, and capital between the Member States, the EU internally has many similarities with a Free Trade Agreement (FTA). Consequently, another objective of this paper is to analyse the instruments through which the EU Internal Market raison d’être impacts the norms regulating PP activity across its Member States, also considering the ‘weight’ of sustainability aspects that has increased in the Internal Market. This analysis will facilitate the understanding of whether the EU PP law can be used as a tool to further sustainability aspects nationally.

In terms of research methodology, this paper applies a legal-historical approach. This will facilitate the understanding of the interconnection between the EU Internal Market and the EU PP system, which has been updated and significantly revised since the foundation of the European Economic Communities (EEC). This method will facilitate the analysis of the fundamental principles of the EU PP framework, its basic functions and how it accommodates sustainability aspects. The historical overview of the EU PP research methodology will provide an analytic tool for looking into the evolution of the rules governing the conduct of PP procedures and analysing specifically the rules on technical specifications, selection criteria, and award criteria. These are the stages of the procurement procedure where sustainability criteria can be considered. As part of the methodology, the application of a narrow understanding of sustainability (limited to social and environmental objectives and small and medium-sized enterprises (SMEs) integration) will be applied to discuss the importance and effect of sustainability on EU PP regulation. This limitation will allow the reader to follow the evolution of the significance of sustainability in procurement.