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8 Eur. Procurement & Pub. Private Partnership L. Rev. 41 (2013)
The Impact of the Revised WTO Government Procurement Agreement on the EU Procurement Rules from a Sustainability Perspective

handle is hein.journals/epppl2013 and id is 45 raw text is: Impact of the Revised WTO Government Procurement Agreement | 41 The Impact of the Revised WTO Government Procurement Agreement on the EU Procure- ment Rules from a Sustainability Perspective Luca Tosoni* Although public procurement is increasingly used to contribute to sustainable develop- ment goals and the European Union has repeatedly recognised its importance as a tool for implementing specific social and environmental objectives, EU public procurement rules are often unclear about how to integrate sustainability criteria into the procure- ment process. The on-going review of the EU public procurement Directives provides an opportunity for lawmakers to clarify the legal framework for sustainable procurement. Such review has to take into consideration the EU's obligations under the WTO Government Procurement Agreement (GPA), which is also currently being renegotiated. The open-ended text of the current GPA generated a wide range of opinions about the legality of using public procurement to support common societal goals. Some of the changes introduced in its revised text seem to support the view that the GPA does not constitute a substantial legal barrier to sustainable procurement. 1. Introduction An increasing number of public authorities, espe- cially in the European Union (EU), use public pro- curement to promote policies that are not necessar- ily related to the goods or services being acquired.' These policies are generally referred to as 'horizon- tal', 'secondary' or 'collateral' and include sustain- able development objectives.2 As it has been recog- nised by the European Commission, EU public authorities can give a substantial contribution to the achievement of local, regional, national and international sustainability goals by using their purchasing power.3 This is due to the size and value * Visiting researcher U.C. Berkeley School of Law; J.D. University of Milan 1 McCrudden, International Economic Law and the Pursuit of Human Rights: A Framework for discussion of the Legality of 'selective purchasing' laws under the WTO Government Procurement Agreement, Journal of Economic Law 2/1999, p. 8. 2 Sustainable procurement means including environmental, social and economic considerations throughout all phases of the procurement process. For a general discussion about horizontal objectives under EU procurement law see Arrowsmith/Kunzlik, Public procurement and horizontal of public contracts. In fact, it has been estimated that total expenditures by EU public authorities account for approximately 19% of the EU GDP.4 Moreover, governments often represent the major economic actors in markets with heavy environ- mental and social footprint (e.g. infrastructures) and have enough purchasing power to shape market trends. Consequently public procurement represents a powerful economic driver whose rules and practices can have a fundamental impact on the EU internal market as well as on global mar- kets.5 The potential of public procurement to con- tribute to the achievement of sustainability objec- policies in EC law: general principles, in Arrowsmith/Kunzlik (eds.), Environmental Policies in EC Procurement Law: New Directives and New Directions, Cambridge 2009. 3 European Commission, Buying Green!: A Handbook on Environmental Public Procurement, Luxembourg 2011, p. 4. 4 See website of the European Commission, section on public procurement, Public Procurement Indicators 2010, available at http://ec.europa.eu/internal-market/publicprocurement/docs/ indicators201 0_en.pdf. 5 European Commission, Buying Green! (fn. 3) p. 4. EPPPL 1|2013

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