Looking at sustainability in public procurement in 2022

As mentioned yesterday I attended a conference on sustainability in public procurement last week in Lisbon, probably the first sustainability-related conference I have attended since May 2017 and a good opportunity to take stock of what has changed over the years.

Externally, the pressure is on to combat climate change and I am glad to see that filter down into the discourse on sustainability in public procurement. As I argued last June, climate change is the emergency and what should warrant any intervention in how public procurement is done in the EU that would lead to a change in how we regulate procurement. The emergency warrants intervention, yes, but it needs to be limited, exceptional and proportionate. I am glad that I finally saw someone in the field making the decoupling between climate change and wider sustainability objectives. These are two very different things which have to be treated differently, although I fear the nuance will not be visible when the inevitable push comes to shove.

The second change I observed in comparison with 2017 was a full throated admission that the choices we take on sustainable public procurement can (and will) lead to an increase in cost. I am agnostic in regards to the underlying decision on buying or not buying a sustainable option vs a non-sustainable option, but I am not agnostic in regards to the starry eyed view that all this will be free and served in a proverbial free lunch. It won't, and the more we are open to discuss about the tradeoffs it entails, the better. What I did not see (yet) is a recognition that being more expensive does mean tradeoffs such as higher taxes or less money for other state activities such as education, healthcare, defense, infrastructure or benefits. And that is fundamental because the cost increase will not happen in a vacuum bereft of opportunity costs and the underlying discussion is a political one. That is precisely why I think the discussion on climate change needs to be decoupled from the wider sustainability agenda, since the former is easier to sell politically and incurs fewer costs overall than the latter.

The final change I observed was a clear evolution in the legal arguments to try and justify shoehorning sustainability obligations in EU law, namely trying to use an 'actualist' interpretation of the Treaties (namely articles 7, 11 and 12 of the TFEU) and Directive 2014/24/EU (especially article 18(2)). The logic of this view is based on the American Constitution and how its interpretation has evolved over the years as the original text becomes more and more disconnected from reality.

I would say the problem with this approach is glaring and obvious. The American Constitution is 235 years old and was last amended (lightly) in 1992. If we count the amendments since 1957, we find only five. One just has to compare the textual evolution of the Treaty of Rome between 1957 and its guise in 2007 as the TFEU, to see the sea changes that were introduced into it over the years. In that period we went from an European Economic Community, to an European Community and finally to an European Union.

Even if we look to the evolution of primary EU law from 1992 onwards only we've had significant revisions of primary EU law in 1997 (Amsterdam), 2001 (Nice) and 2007 (Lisbon). Our recent history shows we do not really need to transplant interpretative techniques used in a text with 235 years, or deployed in connection with the Bible or the Koran. When our rules become detached of reality we simply change and update them in accordance with the political agreement of the day.

The same can be observed in the secondary law applicable to public procurement. Since the early 90s we've had two rounds of Directives and it is obvious we will have another in a few years time, even though the attempts to find on art 18(2) what is not written there started as soon as the Directive was published.

The suggestion I made at the conference was that the solution is to be found elsewhere, either via a new political consensus with corresponding Treaty amendment or looking instead at the collision of rights. Neither requires an interpretative transplant from the USA.