I. Introduction

On April 12th, the Faculty of Law of the University of Bergen hosted a seminar on “Exploring Private and Public Regulation for Sustainability,” organized by Professor Ignacio Herrera Anchestegui and PhD Students Chiara Morfea and Line Gjerstad Tjelflaat. During the seminar, several researchers presented their work. Among them, Dr Nadia Bernaz, who is an Associate Professor of Law at Wageningen University, gave a presentation titled ‘International Implications of the Proposed EU Corporate Sustainability Due Diligence Directive,’ which offered perspectives on the reasoning and substance of the Directive, emphasizing its repercussions outside the EU and underscoring significant matters related to the dissemination of EU principles and the Directive’s reach beyond national borders.

SAPIENS ESR 12 Federica Muscaritoli also presented insights from her PhD Thesis, tentatively titled ‘Public Procurement as a Tool to Fight Climate Change — An Analysis of the EU Legal Framework.’

Agenda of the Webinar:

1. Introduction by Professor Herrera Anchestegui
2. Presentation by Dr. Nadia Bernaz: ‘International Implications of the Proposed EU Corporate Sustainability Due Diligence Directive’ (min 0.00)
3. Q&A Session (min 35.15)
4. Presentation by Federica Muscaritoli: ‘Public Procurement as a Tool to Fight Climate Change — An Analysis of the EU Legal Framework’ (min 46.46)
5. Q&A Session (min 1.15.50)
6. Closing Remarks (min 1.27.23)

II. Key Points from Federica’s Presentation

Federica opened her presentation with an overview of public procurement law, setting the stage for her thesis, which focuses on emissions mitigation— the reduction of carbon or CO2 equivalent emissions under the scope of Directive 2014/24. She provided insights into the evolution of the Directive, noting the increasing incorporation of environmental considerations, a shift primarily initiated by the European Commission through three communications in the 1990s. From this perspective, the qualitative and quantitative increase in environmental consideration, culminating in the incorporation of the so-called sustainability principle, is not surprising. She discussed how, in her opinion, together with ecological aspects, competition has also gained increased importance in the text of the legislation, culminating in the embedment of two new principles in Article 18 of the EU procurement legislation of the latest generation, Directive 2014/24. Federica argued that the way the principles are formulated allows for a consistent interpretation of both, going, at least, to some extent, beyond the well-known clash of sustainability vs internal market. She highlighted how a specific interpretation of EU Treaties provisions favours environmental considerations in procurement.

Today, the EU and its Member States are bound by the imperative of becoming climate-neutral by 2050 and reducing emissions by 55% by 2030. The main question the PhD Thesis tries to answer is how we comply with this obligation and what role public procurement has in this regard, if any. She explained how an interdisciplinary approach underlines the flaws of the concept of Green Public Procurement (GPP) for its voluntary nature and technical limitations, proposing a model of Low Emissions Public Procurement (LEPP) (Andhov & Muscaritoli, 2023).

Many scholars (Janssen, 2023; Caranta, 2023; Andhov, Caranta, et al., 2022) highlight a twofold trend in this vein. Firstly, the EU legislator increasingly incorporates procurement-related rules – predominantly in the field of environmental protection  – into EU acts other than Directive 2014/24. Secondly, these rules are predominantly requirements, whose implications are analyzed in Federica’s thesis. Another way to define LEPP is by looking at existing legislation directly referring to public procurement, which simultaneously reduces our environmental impact and consistently reduces emissions. Through legal dogmatism, Federica concluded with an overview of the relevant environmental laws, classified according to the public procurement-related requirements they established. Indeed, the EU legislator has formulated these obligations for public procurement in several ways, including requirements on the specific characteristics of goods, services, or works, in terms of targets, and terms of penalties for breach of environmental rules (see Falvo & Muscaritoli, 2024), and in terms of award criteria.

Watch the full webinar below.