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Revision of the EU Green Public Procurement Criteria for Food Procurement and Catering Services – Certification Schemes as the Main Determinant for Public Sustainable Food Purchases?

Published online by Cambridge University Press:  05 July 2018

Abstract

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Footnotes

*

Assistant Professor, Law & Governance Group, Wageningen University (the Netherlands).

References

1 Sjafjell, B and Wiesbrock, A, Sustainable Public Procurement Under EU Law: New Perspectives on the State as Stakeholder (Cambridge University Press 2015)Google Scholar.

2 European Commission, Public procurement for a better environment, COM (2008) 400 final.

3 2011 data from Eurostat, see JRC Technical Report, “Revision of the EU GPP criteria for Food procurement and Catering services”, 3rd Technical Report (2017), available at <eippcb.jrc.ec.europa.eu/batis>.

4 ibid.

5 In Nord pas de Calais (Case C-225/98, Judgment of the Court of 26 September 2000, Commission of the European Communities v French Republic, ECLI:EU:C:2000:494) the MEAT procedure could include as award criteria a long-term unemployment criterion, and therefore also presumed to be applicable to green criteria. In Concordia (C-513/99, Judgment of the Court of 17 September 2002, Concordia Bus Finland Oy Ab, formerly Stagecoach Finland Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne, ECLI:EU:C:2002:495) the Commission argued that environmental criteria were only acceptable if conferring a direct economic advantage. The Court disagreed, holding that criteria did not have to have a direct economic nature, but must be linked to the “subject matter of the contract”. In this case, the CJEU held that bus transport services could be awarded using award criteria that valued buses that did not exceed noise and pollution emission limits. The criteria were linked to the subject matter, were clearly defined (ie there was no unlimited choice by the contracting authority), had been duly published and were not discriminatory. Later, in EVN Wienstrom (C-448/01, Judgment of the Court (Sixth Chamber) of 4 December 2003, EVN AG and Wienstrom GmbH v Republik Österreich, ECLI:EU:C:2003:651) a supply of electricity favouring renewable energy sources was regarded as in principle permissible.

6 Schebesta, H, “EU Green Public Procurement Policy Modernisation Package, Eco-Labelling and Framing Measures” in S Schoenmakers, W Devroe and N Philipsen (eds), State Aid and Public Procurement in the European Union (Intersentia 2014)Google Scholar.

7 A Sanchez-Graells, “Against the Grain? – Member State Interests and EU Procurement Law” (18 August 2017). Varju, M (ed), Between Compliance and Particularism: Member State Interests and European Union Law (Springer forthcoming)Google Scholar, available at SSRN <ssrn.com/abstract=3022053>.

8 See, for example, “Distinguishing technical specifications and award criteria on the basis of role, not content” Client Earth, May 2012 available at <www.clientearth.org/reports/role-not-content-distinguishing-technical-specifications-and-award-criteria.pdf>.

9 Communication on “Integrated Product Policy: Building on Environmental Life-Cycle Thinking”, COM (2003) 302 final.

10 Copying and graphic paper; office IT equipment; transport; electricity; textiles; thermal insulation; wall panels; road design, construction and maintenance; office building design, construction and management; waste water infrastructure; imaging equipment; cleaning products and services; furniture; food and catering services; gardening products and services; hard floor coverings; combined heat and power; street lighting and traffic signals; indoor lighting; and sanitary tapware.

12 Directive 2014/24/EU, Qualitative selection criteria (Arts 57–64).

13 Directive 2014/24/EU, Art 42, Annex VII.

14 Directive 2014/24/EU, Arts 67–69.

15 Directive 2014/24/EU, Art 68.

16 Directive 2014/24/EU, recital 96.

17 Directive 2014/24/EU, Arts 70–73.

18 Directive 2014/24/EU, recital 98.

19 Semple, A, “The Link to the Subject-Matter: A Glass Ceiling for Sustainable Public Contracts?” in B Sjåfell and A Wiesbrock (eds), Sustainable Public Procurement under EU Law – New Perspectives on the State as Stakeholder (Cambridge University Press 2015)Google Scholar.

20 Catering services are addressed in part by incorporating the food procurement criteria, supplemented by criteria addressing the provision of plant-based menus, food and beverage waste prevention and food and beverage redistribution, prevention, sorting and disposing of other waste, chemical products and consumable goods, energy and water consumption in kitchens, food transportation, environmental management measures and practices, the provision of low impact drinking water, the purchase of new kitchen equipment and staff training.

21 The criteria for vending machines focus on the foods supplied, and are supplemented with specific criteria relating to smart controls, annual energy consumption, GWP of refrigerants, reusable cups, and purchase of new vending machine commitments.

22 Preliminary Report, JRC 2016a.

23 For instance, organic production has higher land use and acidification potential; see also Technical Report 3.0, p 16.

24 ibid, see p 17.

25 Council Regulations (EU) No 1221/2014 of 10 November 2014, No 1367/2014 of 15 December 2014, No 2015/104 of 19 January 2015, and No 2015/106 of 19 January 2015.

26 Technical Report, p 18–19.

27 Technical Report, p 25.

28 The ILO Core 8 convention requirements are explicitly written into organisational documents: No 29 Forced Labour (1930), No 87 Freedom of Association and Protection of the Right to Organise (1948), No 98 Right to Organise and Collective Bargaining (1949), No 105 Abolition of Forced Labour (1959), No 138 Minimum Age (1973), No 182 Worst Forms of Child Labour (1999), No 100 Equal Remuneration (1951), and No 111 Discrimination (1958).

29 Schemes considered to meet the requirements of this criterion do not need to be part of the Fair Trade movement. Schemes such as Fairtrade®, UTZ. are schemes considered to meet the requirements of this criterion. Bonsucro, etc can show compliance with the criterion provided they cover the principles mentioned above. Other schemes at country level can be considered as equivalent as far as they comply with the principles mentioned above.

30 2nd AHWG meeting “Revision of the EU GPP criteria set for Food and Catering Services” to be held on 23 February 2017 in Brussels, Belgium.

31 Reg (EC) No 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel (“EU Ecolabel Regulation”);Oakdene Hollins, “EU Ecolabel for Food and Feed Products – Feasibility Study” <ec.europa.eu/environment/ecolabel/documents/Ecolabel_for_food_final_report.pdf> accessed 3 May 2018. See also Schebesta, H, “Regulating Sustainability Claims on Seafood – EU Ecolabel, Unfair Commercial Practices Directive or Seafood Information Requirements?” (2016) European Journal of Risk Regulation 784 CrossRefGoogle Scholar.

32 The UN Environment has devised the following variables in order to measure the “sustainability” of national procurement policies, covering environmental and socio-economic considerations. The environmental dimensions taken into account related to: air pollution, biodiversity preservation, climate change mitigation, clean technology and eco-innovation, energy conservation, hazardous substances, health quality, local environmental conditions, ozone depletion, protection of natural resources, resource efficiency, soil protection, waste minimisation, water conservation, water pollution. The socio-economic considerations comprised: community engagement/development, diversity and equality, elimination of access barriers to disabled, people (physical access to buildings, alternative communication formats, etc), fair or ethical trade, human rights, human trafficking, local content/local producers, micro, small and medium enterprises, occupational health and safety, skills and training opportunities, social, sheltered or set-aside enterprises, workers rights (ILO core labour conventions). See UN Environment, 2017 Global Review of Sustainable Public Procurement, available at <www.scpclearinghouse.org/resource/2017-global-review-sustainable-public-procurement>.

33 Schebesta (n 6).

34 Case C-368/10, Commission v Netherlands (Dutch Eco-Labels) (10 May 2012), see also ibid.

35 See for example “Distinguishing technical specifications and award criteria on the basis of role, not content” Client Earth, May 2012 available at <www.clientearth.org/reports/role-not-content-distinguishing-technical-specifications-and-award-criteria.pdf>.

36 Art 2(1), (23), while (24) defines “label requirements” as “the requirements to be met by the works, products, services, processes or procedures in question in order to obtain the label concerned”.

37 Art 43(1)(a) of Directive 2014/24/EU.

38 Art 43 of Directive 2014/24/EU.

39 Gulbrandsen, LH, Transnational Environmental Governance: The Emergence and Effects of the Certification of Forest and Fisheries (Edward Elgar Publishing 2010)CrossRefGoogle Scholar; Gulbrandsen, L, “Dynamic governance interactions: Evolutionary effects of state responses to non-state certification programs” in (2014) 8 Regulation & Governance 7492, 86 Google Scholar.