Greens study: social criteria are “gravely underdeveloped”

‘Falling short’, ‘a missed opportunity’, ‘gravely underdeveloped’, and ‘the wrong signal’. These are the words The Greens / EFA group in the European Parliament describe the public procurement directives’ capacity to enable positive social impact.

Their sponsored study is titled Shaping Sustainable Public Procurement laws in the European Union –  An analysis of the legislative development from ‘how to buy’ to ‘what to buy’ in current and future EU legislative initiatives and was published on 27 April 2023. It assesses EU legislation on public procurement. This legislations sets the legal framework within which public institutions buy goods and services from private companies. These purchases amount to 2 trillion euros of tax money every year, or 14% of the EU’s GDP.

UNI Europa believes this study reflects the underlying problems with the current EU legislation.

The Greens study addresses many of the shortcoming of the public procurement directive to enable green and social sustainable public procurement. The study by the Greens explains the problems of the public procurement directives as: “Falling short of barring social dumping”, “A missed opportunity to address the significant social dimension … and human rights impacts”, furthermore, that “social criteria are continuously gravely underdeveloped” and that they are “ignoring the relevance of due diligence in supply chains for procurement sends the wrong signal”.

Re-watch the live launch here, with our question to the EU Commission:

Problem: Gazing away from obligations

Often the public procurement directive is defended by arguments of the social clause already requiring Member States “to take appropriate measures” to ensure that contractors to respect social laws including collective bargaining. This argument was last used in the answer by Commissioner Dombrovskis to the UNI Europa open letter by 106 trade union leaders (see article here). Meanwhile, the UNI Europa snapshot report documented several examples where this is failing. The Greens study also establishes that the social clause is not sufficient in ensuring sustainable public procurement:

“An obligation is an obligation, but under the 2014 EU Public Procurement Directives contracting authorities have wide margins to simply turn their gaze away from breaches of “applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions””. (p. 54)

Problem: Social criteria are never the ‘subject matter’

The Greens study criticises the limitation of “subject matter”. This refers to the directive’s condition that contractual requirements and award criteria must be linked to the subject matter of the contract, i.e. what is bought, as opposed to how it is provided. Therefore, contracting authorities are not allowed to require tenderers to have a certain general corporate social or environmental responsibility policy in place.

Solution: The public procurement directives need to be revised, dixit the experts

The Greens study strongly calls for the revision of th public procuirement directives. In view of promoting sustainable public procurement, the report dedicates an entire chapter on how to revise the public procurement directives with, among the recommendations are:

• Strengthening the social clause (Art. 18(2) Directive 2014/24/EU) to require more from Member States;
• Strengthening the exclusion of contractors where it has been established that the tender does not comply with the social clause;
• Removing the limitations of the subject matter and to be replace it by a reference to the life cycle of a product/service throughout the EU Public Procurement Directives.

Note:

• UNI Europa is running the campaign “No public contract without a collective agreement”. With this campaign, UNI Europa wants to reopen the Public Procurement Directive and make sure that companies can only win public contracts if they have or respect a collective agreement, this will help safeguard decent working conditions. For further information, click here.