In 2014 three new procurement directives were adopted at European level, replacing the previous g... more In 2014 three new procurement directives were adopted at European level, replacing the previous generation of directives from 2004. These directives regulate how approximately €2 trillion of public and semi-public money is spent in the member states, aiming to ensure the free movement of goods and services and competition in the award of public contracts. Environmental and social provisions figure prominently in the 2014 directives, including a number of new rules which must be implemented at national level. The 2014 directives embody the concept of a social market economy as set out in the Lisbon Treaty, and represent an increase in EU integration in the public procurement field. This thesis analyses the role of the European Commission, Council, Parliament and Court of Justice during the reform process, as well as the policy preferences of France, Germany, the UK and civil society groups. It asks whether the EU institutions acted as supranational policy entrepreneurs or as agents of the member states in introducing the new social and environmental provisions, testing hypotheses derived from two competing theories of integration. It draws conclusions about the nature and causes of European integration in this field, and develops the concept of trusteeship in relation to the Court of Justice and European Parliament as a means of understanding democratic governance in the EU. Many debts were incurred in the course of researching this thesis. I would like to thank my interview subjects Malcolm Harbour, Marc Tarabella, Ronan O'Reilly, Panayotis Stamatopoulos and Olivier Moreau for providing first-hand insight into the gestation of the procurement directives and bringing their respective milieus to life. My research also benefitted from documents released under information requests facilitated by the AsktheEU and FragdenStaat websites, and I would like to thank the creators of these sites. Work on this thesis was undertaken over a period of five years amongst many other projects, and I am grateful for the patience and support of my clients, friends and family during this time. My greatest debts are to Dermot Hodson and Deborah Mabbett, my first and second thesis supervisors at the Birkbeck Politics Department. Deborah supported my research at an early stage and pointed me towards a rich literature on the social market economy which helped to situate my topic within broader political debates. Dermot guided me towards integration theory and provided valuable advice at each critical juncture as the project took shapefinding ways to help me sharpen my focus despite my sometimes stubborn desire to plough a particular barren furrow. Their help, and that of the other staff and students at the Politics Department is gratefully acknowledged. 1 Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts (the Concessions Directive); Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC (the Public Sector Directive); and Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sector and repealing Directive 2004/17/EC (the Utilities Directive). 2 The terms 'neofunctionalism' and 'intergovernmentalism' denote the two main strands of theory regarding EU integration. Chapter one distinguishes the more recent incarnations of these theories in supranationalism and new intergovernmentalism from the classic versions put forward by Haas and Hoffmann. 3 European Commission (2016) Public Procurement Indicators 2015. Only around a quarter of the €2 trillion figure is fully covered by the EU directives-many contracts fall below the relevant thresholds or are excluded for other reasons. 8 European Commission, COM (89) 400 final Public procurement: Regional and social aspects. In Case C-228/98 Nord-Pas-de-Calais the Commission challenged the use of award criteria targeting unemployment in the French region (see discussion in Chapter 4). The Commission also issued a reasoned opinion against Austria in 1997 concerning the application of environmental criteria in a contract for the purchase of lorries. 9 Case C-513/99 Concordia Bus Finland v Helsingin kaupunki and HKL-Bussiliikenne (Concordia) 10 These policies were set out in COM (2008) 400 Public procurement for a better environment 11 This more restrictive position is evident in the Commission's 2010 Buying Social guidance. 12 The four cases comprising the Laval quartet (discussed in Chapter 4): Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet et al (Laval); Case C-438/05 International Transport Workers' Federation, Finnish Seamen's Union v Viking Line ABP et al (Viking); Case C-319/06, Commission v Luxembourg; and Case C-346/06 Dirk Rüffert v Land Niedersachsen (Rüffert). 13 This term incorporates both green public procurement (GPP) and socially responsible public procurement (SRPP). The European Commission's support policy is primarily limited to GPP, as discussed in Chapter 3. 14 It is important to note that the decision about whether to outsource a service remains outside of the scope of EU law. However, where a decision is taken to award a contract or concession, the directives will apply if the value exceeds the relevant monetary threshold and if there is no exemption based on the subject-matter. 15 The first utilities sector directive, covering the water, energy, transport and telecommunications sectors, was adopted in 1992 (Directive 92/13/EEC). Directive 2004/17/EC added postal services to the scope of the utilities regime but removed telecommunications, on the grounds that this sector was subject to adequate competition. 16 For example, requirements relating to training and apprenticeships on local works contracts have aimed to combat unemployment and skills shortages in the UK, France and Germany amongst other jurisdictions. 17 For an overview of the response, see Bücker and Warneck (2010). 18 For discussion of the reasons for and nature of non-compliance see Gelderman, Ghijsen and Schoonen (2010) 19 These cases are unfortunately not grouped under a single classification in the Court's database. The figure of 500 is based on the author's own compilation of cases concerning procurement (including by EU institutions). 20 Court of Justice of the European Union, Annual Report for 2017 and previous years. 21 Case C-324/98 Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria and Herold Business Data AG. The Court's approach in this case was foreshadowed to some extent in Case C-3/88 Commission v Italy ('Re: Data Processing Contracts') and was further developed in C-231/03 Consorzio Aziende Metano (Coname) v Cingia de' Botti and C-458/03 Parking Brixen GmbH v Gemeinde Brixen and Stadtwerke Brixen AG. 22 Case 8/74 Procureur du Roi v Dassonville. 23 Joined Cases C-267 and C-268/91 Keck and Mithouard [1993] ECR I-6097. 24 In the recent case C-486/17 Olympus Italia, the Court did hold that cross-border interest could not be merely hypothetical, with the burden of proof to establish this resting on the complainant. 25 Case T-258/06 Germany v Commission. See discussion in Chapter 4 of this case. 77 Moravscik (1999) describes informal agenda-setting as a process in which "the entrepreneur launches a discussion by highlighting problems, advancing workable proposals, underscoring potential material benefits, or linking the outcome to symbolic values" (p 272) 78 The remainder arise from international agreements; amendments to existing legislation; responses to specific requests from other Community institutions, member states or private actors; or from areas in which the Commission enjoys no discretion in exercising its right of initiative. 79 The Right2Water initiative, discussed in Chapter 5, was the first ECI to meet the Lisbon Treaty requirements. 129 This policy is set out in European Commission (2010b) 130 European Commission (2011a) 131 European Commission (2011d), at p 3 132 Ibid, pg. 4.
A requirement or preference for contractors to pay workers involved in the delivery of public con... more A requirement or preference for contractors to pay workers involved in the delivery of public contracts a wage above the legal minimum can be seen as part of socially responsible public procurement. However it may also be seen as a restriction on the free movement of goods and services, inasmuch as it erodes the cost advantages of contractors based in lower wage areas. As the United Kingdom prepares to leave the European Union, there is a need both to state EU law on this question and to consider the scope for the UK, its constituent jurisdictions or individual contracting authorities to take a different approach. The 2014 procurement directives, the Bundesdruckerei and RegioPost cases and the Commission's proposed revisions to the Posted Workers Directive all attempt to reconcile free movement with social protections relating to wages - however none of these directly address living wages which are not set out in legislation, collective agreements or administrative provisions. This paper analyses these developments in order to draw conclusions regarding the scope for living wages to be included in public contracts both before and after Brexit.
The deadline for implementation of the 2014 procurement directives falls in April 2016. In transp... more The deadline for implementation of the 2014 procurement directives falls in April 2016. In transposing the Public Sector Directive (2014/24/EU) a close look at the text reveals a number of ambiguitiesin particular regarding the classification of mixed contracts; application of remedies to contracts for social and other specific services ('light touch regime' contracts); the provisions on conflicts of interest; and the rules on modifications to contracts as these affect change of contractor. This article analyses these provisions in light of prior CJEU case law and relevant soft law, proposing interpretations which best reflect these sources. It identifies areas where national law or guidance may be able to provide a greater degree of clarity than the Public Sector Directive.
This paper compares the political question jurisprudence of the United States Supreme Court with ... more This paper compares the political question jurisprudence of the United States Supreme Court with the private applicant standing jurisprudence of the Community Courts under Article 230 (4) EC. It traces the development and eventual abandonment of the political question doctrine from Luther v Borden to Bush v Gore. Underdevelopment of the aspects of the doctrine which come closest to expressing its true purpose as a check on judicial power lead to an overemphasis of its textual commitment and prudential strands, as set out in Baker v Carr. This contributed to the Supreme Court's failure to invoke the doctrine when deciding the outcome of the 2000 presidential election.Turning to the case law of the European Court of Justice and Court of First Instance (Community Courts), I analyse the development of a highly restrictive test for individual standing to challenge regulations and decisions addressed to another. The Courts' decisions in Plaumann, Calpak, UPA and Jego-Quere, in particular, suggest an attempt to grapple with the same 'counter-majoritarian difficulty' which informed the development of the political question doctrine. Given the failure of such tests and doctrines to reliably determine justiciability, I ask if courts would be better off applying selective deference to the other branches in cases brought before them. This approach would allow the substance of a claim to be taken into account explicitly, rather than indirectly as can be observed in the case law analysed here.
Citizen contracting describes public service provision models in which decisions traditionally ta... more Citizen contracting describes public service provision models in which decisions traditionally taken by the State are instead taken by citizens as the recipients of that service. These decisions may relate to the choice of service provider, or to the nature of the service itself. While approaches such as voucher schemes for schools, healthcare, or childcare have been widely debated, this paper focuses on two novel approaches adopted in the UK between 2010 and 2015: the Green Deal for energy-saving home renovations and the Verify system for online identity assurance. These schemes targeted environmental and innovation objectives respectively – and both failed to achieve the intended results. The paper asks how such schemes fit within the broader taxonomy of public service delivery models which involve an element of citizen choice, and how they affect policy objectives currently embedded in public procurement rules, such as transparency and accountability. Drawing lessons from the Green Deal and Verify, it proposes criteria for evaluating citizen contracting models which take account of the full range of desiderata attached to public procurement.
Public infrastructure deficits afflict both developed and developing countries, and are compellin... more Public infrastructure deficits afflict both developed and developing countries, and are compelling governments to bring in private sector capital and management efficiency through arrangements known as public-private partnerships (PPPs). While PPPs have the potential to deliver high-quality public goods and services, they are not a panacea for overextended government budgets, as private partners must ultimately be compensated from the public purse in the long term. This briefing looks towards the third pillar of sustainable development, namely economic sustainability, and non-exhaustively outlines the features that make PPPs financially sustainable, both internally and within the wider economy. The final section briefly considers how PPPs can, in turn, be leveraged to support broader environmental and social sustainability goals. A companion IISD briefing, Public-Private Partnerships Health Check: Managing Partnerships During their Lifetime, examines the scope for public authorities...
A requirement or preference for contractors to pay workers involved in the delivery of public con... more A requirement or preference for contractors to pay workers involved in the delivery of public contracts a wage above the legal minimum can be seen as part of socially responsible public procurement. However it may also be seen as a restriction on the free movement of goods and services, inasmuch as it erodes the cost advantages of contractors based in lower wage areas. As the United Kingdom prepares to leave the European Union, there is a need both to state EU law on this question and to consider the scope for the UK, its constituent jurisdictions or individual contracting authorities to take a different approach. The 2014 procurement directives, the Bundesdruckerei and RegioPost cases and the Commission's proposed revisions to the Posted Workers Directive all attempt to reconcile free movement with social protections relating to wages - however none of these directly address living wages which are not set out in legislation, collective agreements or administrative provisions. This paper analyses these developments in order to draw conclusions regarding the scope for living wages to be included in public contracts both before and after Brexit.
The 2014 EU procurement directives contain a greatly expanded set of provisions relating to socia... more The 2014 EU procurement directives contain a greatly expanded set of provisions relating to socially responsible public procurement (SRPP). From the application of higher thresholds and ability to limit competition for certain contracts through to the use of social award criteria and contract performance clauses, there are numerous possibilities for contracting authorities to take considerations related to labour law compliance, trading conditions and social inclusion into account. At the same time, the EU has expanded its international commitments in the field of public procurement through the revision of the WTO Government Procurement Agreement (GPA), the Comprehensive Economic and Trade Agreement (CETA) with Canada, and through the establishment of Deep and Comprehensive Free Trade Areas (DCFTAs) with Ukraine, Moldova and Georgia. This paper looks at the extent to which SRPP provisions have been incorporated in these agreements, finding that in a number of areas such as reservation of contracts for disabled and disadvantaged workers, treatment of abnormally low tenders and use of third party certifications, they offer a less supportive framework than the EU directives for SRPP.
This book examines the effectiveness of the modernisation of EU public procurement law in light o... more This book examines the effectiveness of the modernisation of EU public procurement law in light of the overarching treaty goals on sustainability. Contributors expertly cover core issues of public procurement, including life-cycle costing (LCC), eco-and fair-trade labels, the link to the subject matter (LtSM) requirement, the mandatory horizontal rule on environmental and social legal compliance and framework agreements. Also explored are the balancing of economic and non-economic objectives implied in sustainable public procurement. The volume proceeds to identify major unresolved issues in the use of sustainability considerations and highlights challenges and possibilities for the national implementation due to take place in 2016. The book contributes to the dismantling of the compartmentalisation that underpins unsustainable policy decisions by discussing the interface of company law and public procurement law and the implication of the new rules on sustainable public procurement for sustainable companies and specifically for small-and medium-sized enterprises (SMEs). beate sjåfjell is Professor Dr Juris at the University of Oslo. She is the head of the research group 'Companies, Markets, Society and the Environment' as well as of the European Law Network at the Faculty of Law in Oslo. She also chairs the international Sustainable Market Actors Network and coordinates European and international research projects on sustainability and business law. anja wiesbrock is a senior advisor at the Research Council of Norway. She has previously worked as a postdoctoral researcher at the University of Oslo and as Assistant Professor in EU Law at the University of Maastricht. She has published numerous articles on the different aspects of EU law, including on state aid and on the role of the environmental integration principle in public procurement.
Originating in a dictum of the Court of Justice in the Concordia Bus Finland case, the 'link to t... more Originating in a dictum of the Court of Justice in the Concordia Bus Finland case, the 'link to the subject-matter' has emerged as a major limiting principle for sustainability considerations in the 2014 EU procurement directives. It is intended to delimit the scope of legitimate requirements or preferences which can be expressed in procurement procedures and applied in contract performance clauses. It effectively removes the ability to interrogate general corporate social or environmental responsibility policies to the extent that these address matters beyond the specific needs of the contracting authority. This paper analyses the origin and application of the concept in the Court's case law and the manner in which it has been expanded in the 2014 directives. As cases applying the test are few, additional sources such as interpretative efforts of the European Commission and the preparatory materials for the 2014 directives are drawn upon for better understanding of its scope.
The paper then turns to an analysis of how the link to the subject-matter may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. application of a strict version of the test may create difficulties in achieving the objectives of such criteria, due to the complexity of supply chains and the prevalence of 'upstream' environmental and social impacts. On the other hand, abandoning or loosening the link may also pose problems in terms of verification of criteria and the additionality of the benefits they target. Concerns about the covert use of procurement as a means of regulation are considered, but found to be lacking in substance. The paper concludes by proposing a loose link to the subject-matter test combined with application of the principles of proportionality and transparency as an appropriate way for the Court to review sustainability measures in public procurement.
In 2014 three new procurement directives were adopted at European level, replacing the previous g... more In 2014 three new procurement directives were adopted at European level, replacing the previous generation of directives from 2004. These directives regulate how approximately €2 trillion of public and semi-public money is spent in the member states, aiming to ensure the free movement of goods and services and competition in the award of public contracts. Environmental and social provisions figure prominently in the 2014 directives, including a number of new rules which must be implemented at national level. The 2014 directives embody the concept of a social market economy as set out in the Lisbon Treaty, and represent an increase in EU integration in the public procurement field. This thesis analyses the role of the European Commission, Council, Parliament and Court of Justice during the reform process, as well as the policy preferences of France, Germany, the UK and civil society groups. It asks whether the EU institutions acted as supranational policy entrepreneurs or as agents of the member states in introducing the new social and environmental provisions, testing hypotheses derived from two competing theories of integration. It draws conclusions about the nature and causes of European integration in this field, and develops the concept of trusteeship in relation to the Court of Justice and European Parliament as a means of understanding democratic governance in the EU. Many debts were incurred in the course of researching this thesis. I would like to thank my interview subjects Malcolm Harbour, Marc Tarabella, Ronan O'Reilly, Panayotis Stamatopoulos and Olivier Moreau for providing first-hand insight into the gestation of the procurement directives and bringing their respective milieus to life. My research also benefitted from documents released under information requests facilitated by the AsktheEU and FragdenStaat websites, and I would like to thank the creators of these sites. Work on this thesis was undertaken over a period of five years amongst many other projects, and I am grateful for the patience and support of my clients, friends and family during this time. My greatest debts are to Dermot Hodson and Deborah Mabbett, my first and second thesis supervisors at the Birkbeck Politics Department. Deborah supported my research at an early stage and pointed me towards a rich literature on the social market economy which helped to situate my topic within broader political debates. Dermot guided me towards integration theory and provided valuable advice at each critical juncture as the project took shapefinding ways to help me sharpen my focus despite my sometimes stubborn desire to plough a particular barren furrow. Their help, and that of the other staff and students at the Politics Department is gratefully acknowledged. 1 Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts (the Concessions Directive); Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC (the Public Sector Directive); and Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sector and repealing Directive 2004/17/EC (the Utilities Directive). 2 The terms 'neofunctionalism' and 'intergovernmentalism' denote the two main strands of theory regarding EU integration. Chapter one distinguishes the more recent incarnations of these theories in supranationalism and new intergovernmentalism from the classic versions put forward by Haas and Hoffmann. 3 European Commission (2016) Public Procurement Indicators 2015. Only around a quarter of the €2 trillion figure is fully covered by the EU directives-many contracts fall below the relevant thresholds or are excluded for other reasons. 8 European Commission, COM (89) 400 final Public procurement: Regional and social aspects. In Case C-228/98 Nord-Pas-de-Calais the Commission challenged the use of award criteria targeting unemployment in the French region (see discussion in Chapter 4). The Commission also issued a reasoned opinion against Austria in 1997 concerning the application of environmental criteria in a contract for the purchase of lorries. 9 Case C-513/99 Concordia Bus Finland v Helsingin kaupunki and HKL-Bussiliikenne (Concordia) 10 These policies were set out in COM (2008) 400 Public procurement for a better environment 11 This more restrictive position is evident in the Commission's 2010 Buying Social guidance. 12 The four cases comprising the Laval quartet (discussed in Chapter 4): Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet et al (Laval); Case C-438/05 International Transport Workers' Federation, Finnish Seamen's Union v Viking Line ABP et al (Viking); Case C-319/06, Commission v Luxembourg; and Case C-346/06 Dirk Rüffert v Land Niedersachsen (Rüffert). 13 This term incorporates both green public procurement (GPP) and socially responsible public procurement (SRPP). The European Commission's support policy is primarily limited to GPP, as discussed in Chapter 3. 14 It is important to note that the decision about whether to outsource a service remains outside of the scope of EU law. However, where a decision is taken to award a contract or concession, the directives will apply if the value exceeds the relevant monetary threshold and if there is no exemption based on the subject-matter. 15 The first utilities sector directive, covering the water, energy, transport and telecommunications sectors, was adopted in 1992 (Directive 92/13/EEC). Directive 2004/17/EC added postal services to the scope of the utilities regime but removed telecommunications, on the grounds that this sector was subject to adequate competition. 16 For example, requirements relating to training and apprenticeships on local works contracts have aimed to combat unemployment and skills shortages in the UK, France and Germany amongst other jurisdictions. 17 For an overview of the response, see Bücker and Warneck (2010). 18 For discussion of the reasons for and nature of non-compliance see Gelderman, Ghijsen and Schoonen (2010) 19 These cases are unfortunately not grouped under a single classification in the Court's database. The figure of 500 is based on the author's own compilation of cases concerning procurement (including by EU institutions). 20 Court of Justice of the European Union, Annual Report for 2017 and previous years. 21 Case C-324/98 Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria and Herold Business Data AG. The Court's approach in this case was foreshadowed to some extent in Case C-3/88 Commission v Italy ('Re: Data Processing Contracts') and was further developed in C-231/03 Consorzio Aziende Metano (Coname) v Cingia de' Botti and C-458/03 Parking Brixen GmbH v Gemeinde Brixen and Stadtwerke Brixen AG. 22 Case 8/74 Procureur du Roi v Dassonville. 23 Joined Cases C-267 and C-268/91 Keck and Mithouard [1993] ECR I-6097. 24 In the recent case C-486/17 Olympus Italia, the Court did hold that cross-border interest could not be merely hypothetical, with the burden of proof to establish this resting on the complainant. 25 Case T-258/06 Germany v Commission. See discussion in Chapter 4 of this case. 77 Moravscik (1999) describes informal agenda-setting as a process in which "the entrepreneur launches a discussion by highlighting problems, advancing workable proposals, underscoring potential material benefits, or linking the outcome to symbolic values" (p 272) 78 The remainder arise from international agreements; amendments to existing legislation; responses to specific requests from other Community institutions, member states or private actors; or from areas in which the Commission enjoys no discretion in exercising its right of initiative. 79 The Right2Water initiative, discussed in Chapter 5, was the first ECI to meet the Lisbon Treaty requirements. 129 This policy is set out in European Commission (2010b) 130 European Commission (2011a) 131 European Commission (2011d), at p 3 132 Ibid, pg. 4.
A requirement or preference for contractors to pay workers involved in the delivery of public con... more A requirement or preference for contractors to pay workers involved in the delivery of public contracts a wage above the legal minimum can be seen as part of socially responsible public procurement. However it may also be seen as a restriction on the free movement of goods and services, inasmuch as it erodes the cost advantages of contractors based in lower wage areas. As the United Kingdom prepares to leave the European Union, there is a need both to state EU law on this question and to consider the scope for the UK, its constituent jurisdictions or individual contracting authorities to take a different approach. The 2014 procurement directives, the Bundesdruckerei and RegioPost cases and the Commission's proposed revisions to the Posted Workers Directive all attempt to reconcile free movement with social protections relating to wages - however none of these directly address living wages which are not set out in legislation, collective agreements or administrative provisions. This paper analyses these developments in order to draw conclusions regarding the scope for living wages to be included in public contracts both before and after Brexit.
The deadline for implementation of the 2014 procurement directives falls in April 2016. In transp... more The deadline for implementation of the 2014 procurement directives falls in April 2016. In transposing the Public Sector Directive (2014/24/EU) a close look at the text reveals a number of ambiguitiesin particular regarding the classification of mixed contracts; application of remedies to contracts for social and other specific services ('light touch regime' contracts); the provisions on conflicts of interest; and the rules on modifications to contracts as these affect change of contractor. This article analyses these provisions in light of prior CJEU case law and relevant soft law, proposing interpretations which best reflect these sources. It identifies areas where national law or guidance may be able to provide a greater degree of clarity than the Public Sector Directive.
This paper compares the political question jurisprudence of the United States Supreme Court with ... more This paper compares the political question jurisprudence of the United States Supreme Court with the private applicant standing jurisprudence of the Community Courts under Article 230 (4) EC. It traces the development and eventual abandonment of the political question doctrine from Luther v Borden to Bush v Gore. Underdevelopment of the aspects of the doctrine which come closest to expressing its true purpose as a check on judicial power lead to an overemphasis of its textual commitment and prudential strands, as set out in Baker v Carr. This contributed to the Supreme Court's failure to invoke the doctrine when deciding the outcome of the 2000 presidential election.Turning to the case law of the European Court of Justice and Court of First Instance (Community Courts), I analyse the development of a highly restrictive test for individual standing to challenge regulations and decisions addressed to another. The Courts' decisions in Plaumann, Calpak, UPA and Jego-Quere, in particular, suggest an attempt to grapple with the same 'counter-majoritarian difficulty' which informed the development of the political question doctrine. Given the failure of such tests and doctrines to reliably determine justiciability, I ask if courts would be better off applying selective deference to the other branches in cases brought before them. This approach would allow the substance of a claim to be taken into account explicitly, rather than indirectly as can be observed in the case law analysed here.
Citizen contracting describes public service provision models in which decisions traditionally ta... more Citizen contracting describes public service provision models in which decisions traditionally taken by the State are instead taken by citizens as the recipients of that service. These decisions may relate to the choice of service provider, or to the nature of the service itself. While approaches such as voucher schemes for schools, healthcare, or childcare have been widely debated, this paper focuses on two novel approaches adopted in the UK between 2010 and 2015: the Green Deal for energy-saving home renovations and the Verify system for online identity assurance. These schemes targeted environmental and innovation objectives respectively – and both failed to achieve the intended results. The paper asks how such schemes fit within the broader taxonomy of public service delivery models which involve an element of citizen choice, and how they affect policy objectives currently embedded in public procurement rules, such as transparency and accountability. Drawing lessons from the Green Deal and Verify, it proposes criteria for evaluating citizen contracting models which take account of the full range of desiderata attached to public procurement.
Public infrastructure deficits afflict both developed and developing countries, and are compellin... more Public infrastructure deficits afflict both developed and developing countries, and are compelling governments to bring in private sector capital and management efficiency through arrangements known as public-private partnerships (PPPs). While PPPs have the potential to deliver high-quality public goods and services, they are not a panacea for overextended government budgets, as private partners must ultimately be compensated from the public purse in the long term. This briefing looks towards the third pillar of sustainable development, namely economic sustainability, and non-exhaustively outlines the features that make PPPs financially sustainable, both internally and within the wider economy. The final section briefly considers how PPPs can, in turn, be leveraged to support broader environmental and social sustainability goals. A companion IISD briefing, Public-Private Partnerships Health Check: Managing Partnerships During their Lifetime, examines the scope for public authorities...
A requirement or preference for contractors to pay workers involved in the delivery of public con... more A requirement or preference for contractors to pay workers involved in the delivery of public contracts a wage above the legal minimum can be seen as part of socially responsible public procurement. However it may also be seen as a restriction on the free movement of goods and services, inasmuch as it erodes the cost advantages of contractors based in lower wage areas. As the United Kingdom prepares to leave the European Union, there is a need both to state EU law on this question and to consider the scope for the UK, its constituent jurisdictions or individual contracting authorities to take a different approach. The 2014 procurement directives, the Bundesdruckerei and RegioPost cases and the Commission's proposed revisions to the Posted Workers Directive all attempt to reconcile free movement with social protections relating to wages - however none of these directly address living wages which are not set out in legislation, collective agreements or administrative provisions. This paper analyses these developments in order to draw conclusions regarding the scope for living wages to be included in public contracts both before and after Brexit.
The 2014 EU procurement directives contain a greatly expanded set of provisions relating to socia... more The 2014 EU procurement directives contain a greatly expanded set of provisions relating to socially responsible public procurement (SRPP). From the application of higher thresholds and ability to limit competition for certain contracts through to the use of social award criteria and contract performance clauses, there are numerous possibilities for contracting authorities to take considerations related to labour law compliance, trading conditions and social inclusion into account. At the same time, the EU has expanded its international commitments in the field of public procurement through the revision of the WTO Government Procurement Agreement (GPA), the Comprehensive Economic and Trade Agreement (CETA) with Canada, and through the establishment of Deep and Comprehensive Free Trade Areas (DCFTAs) with Ukraine, Moldova and Georgia. This paper looks at the extent to which SRPP provisions have been incorporated in these agreements, finding that in a number of areas such as reservation of contracts for disabled and disadvantaged workers, treatment of abnormally low tenders and use of third party certifications, they offer a less supportive framework than the EU directives for SRPP.
This book examines the effectiveness of the modernisation of EU public procurement law in light o... more This book examines the effectiveness of the modernisation of EU public procurement law in light of the overarching treaty goals on sustainability. Contributors expertly cover core issues of public procurement, including life-cycle costing (LCC), eco-and fair-trade labels, the link to the subject matter (LtSM) requirement, the mandatory horizontal rule on environmental and social legal compliance and framework agreements. Also explored are the balancing of economic and non-economic objectives implied in sustainable public procurement. The volume proceeds to identify major unresolved issues in the use of sustainability considerations and highlights challenges and possibilities for the national implementation due to take place in 2016. The book contributes to the dismantling of the compartmentalisation that underpins unsustainable policy decisions by discussing the interface of company law and public procurement law and the implication of the new rules on sustainable public procurement for sustainable companies and specifically for small-and medium-sized enterprises (SMEs). beate sjåfjell is Professor Dr Juris at the University of Oslo. She is the head of the research group 'Companies, Markets, Society and the Environment' as well as of the European Law Network at the Faculty of Law in Oslo. She also chairs the international Sustainable Market Actors Network and coordinates European and international research projects on sustainability and business law. anja wiesbrock is a senior advisor at the Research Council of Norway. She has previously worked as a postdoctoral researcher at the University of Oslo and as Assistant Professor in EU Law at the University of Maastricht. She has published numerous articles on the different aspects of EU law, including on state aid and on the role of the environmental integration principle in public procurement.
Originating in a dictum of the Court of Justice in the Concordia Bus Finland case, the 'link to t... more Originating in a dictum of the Court of Justice in the Concordia Bus Finland case, the 'link to the subject-matter' has emerged as a major limiting principle for sustainability considerations in the 2014 EU procurement directives. It is intended to delimit the scope of legitimate requirements or preferences which can be expressed in procurement procedures and applied in contract performance clauses. It effectively removes the ability to interrogate general corporate social or environmental responsibility policies to the extent that these address matters beyond the specific needs of the contracting authority. This paper analyses the origin and application of the concept in the Court's case law and the manner in which it has been expanded in the 2014 directives. As cases applying the test are few, additional sources such as interpretative efforts of the European Commission and the preparatory materials for the 2014 directives are drawn upon for better understanding of its scope.
The paper then turns to an analysis of how the link to the subject-matter may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. application of a strict version of the test may create difficulties in achieving the objectives of such criteria, due to the complexity of supply chains and the prevalence of 'upstream' environmental and social impacts. On the other hand, abandoning or loosening the link may also pose problems in terms of verification of criteria and the additionality of the benefits they target. Concerns about the covert use of procurement as a means of regulation are considered, but found to be lacking in substance. The paper concludes by proposing a loose link to the subject-matter test combined with application of the principles of proportionality and transparency as an appropriate way for the Court to review sustainability measures in public procurement.
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Papers by Abby Semple
The paper then turns to an analysis of how the link to the subject-matter may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. application of a strict version of the test may create difficulties in achieving the objectives of such criteria, due to the complexity of supply chains and the prevalence of 'upstream' environmental and social impacts. On the other hand, abandoning or loosening the link may also pose problems in terms of verification of criteria and the additionality of the benefits they target. Concerns about the covert use of procurement as a means of regulation are considered, but found to be lacking in substance. The paper concludes by proposing a loose link to the subject-matter test combined with application of the principles of proportionality and transparency as an appropriate way for the Court to review sustainability measures in public procurement.
The paper then turns to an analysis of how the link to the subject-matter may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. application of a strict version of the test may create difficulties in achieving the objectives of such criteria, due to the complexity of supply chains and the prevalence of 'upstream' environmental and social impacts. On the other hand, abandoning or loosening the link may also pose problems in terms of verification of criteria and the additionality of the benefits they target. Concerns about the covert use of procurement as a means of regulation are considered, but found to be lacking in substance. The paper concludes by proposing a loose link to the subject-matter test combined with application of the principles of proportionality and transparency as an appropriate way for the Court to review sustainability measures in public procurement.