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PROMOTING HUMAN RIGHTS COMPLIANCE THROUGH PUBLIC
PROCUREMENT (REGULATION): THE NEW EUROPEAN
DIRECTIVE
M. VOGEL
VU UNIVERSITY AMSTERDAM
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ARTICLE 18(2)
‘Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators will comply with applicable obligations in the fields of environmental, social and labour law (...) ‘
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Individual choice to comply
Individual choice to comply
Individual choice to comply
Individual choice to comply
18(2) ‘Influence path’ member state economic operators through pp
Individual choice to comply
Individual choice to comply
Duty to ensure compliance(take measures that
garantee the desired effect)
Duty to ensure compliance(take measures that
garantee the desired effect)
desired effect: compliance
desired effect: compliance
obligation / possibility?
obligation / possibility?
strict requirement/ softer criterion?
strict requirement/ softer criterion?
+ subcontractors?
+ subcontractors?
+ checks/ remedy?
+ checks/ remedy?
Duty to ensure that the chosen measures can be
expected to be (the most?) effective
Duty to ensure that the chosen measures can be
expected to be (the most?) effective
+ checks + remedy?+ checks + remedy?
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ARTICLE 67(2) : CONTENT OF AWARD CRITERIA
67(2) What kind of content may award criteria comprise?
•Fair trade criteria?
‘ The most economically advantageous tender (…) may include a price-quality ratio, which shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects (…).
Such criteria may comprise:
a. quality, including (…) social (…) characteristics and trading and its conditions’
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ARTICLE 67(3): LINK TO THE SUBJECT MATTER OF THE CONTRACT
67(3) When do award criteria have a sufficient link to the subject matter of the contract?
‘ … where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle,
including factors involved in:
a.the specific process of production, provision or trading (…)or
b.a specific process for another stage of their life cycle,
even where such factors do not form part of their material substance’
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WHAT DO ARTICLE 67(2) AND 67(3) BRING US?
67(2) Award criteria may comprise social criteria and trading conditions
67(3) Much clearer and limited definition of the link to the subject matter of the contract requirement
BUT: Applicability of this definition in the context of other provisions
(e.g. Art. 42, 43 and 70) is unclear
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ARTICLE 67(4): VERIFICATION OF AWARD CRITERIA
‘Award criteria shall (…) be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria. In case of doubt, contracting authorities shall verify effectively the accuracy of the information and proof provided by the tenderers.’’
• When do specifications allow effective verification?• When should verification be considered effective?
•On what grounds may (shall) a contracting authority decide whether or
not to verify (mere subjective criterion)?
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CONCLUSION: PROGRESS OR NOT?
Article 18 (2) Article 67 (2), (3) and (4)
•New duty to take effective measures
•Clear focus on effectivity
•Award criteria may comprise social criteria and trading conditions
•Limited definition of link to the subject-matter of the contract:- effect in material substance ≠ required- production process, trade conditions
•New duty to effectively verify
• Content of the duty unclear - How to combine with pursuit of other objectives?
• General applicability of definition 67(3)?
• Content of the duty to verify unclear- How to operationalize within the boundaries of the general principles?
