The Council view on sustainable procurement is changing

Two years ago, in June 2022 the Council of the European Union published a set of conclusions on sustainable procurement which were an evolution of a 2020 set of conclusions suggesting the introduction of criteria or targets for sustainable procurement. It would seem that the Council was behind the idea of 'changing the discourse' vis-a-vis the adoption of more sustainable objectives in public procurement maybe even mandatory ones.

The 2022 conclusions referred to '[i]ntroducing Sustainable Development Considerations in Public Procurement' which is an interesting perspective bearing in mind that those are certainly possible in the context of the current legal framework. Despite some words of caution, namely on competition and the administrative burden this might entail, it looked as if the Council was fully supportive of expanding the scope for sustainability in public procurement. Fast forward two years and it seems the tide is turning.

On May 24th the Council published its conclusions on the ECA report on public procurement from December 2023. It starts by qualifying its views from 2022 stating that it "deemed as essential a gradual and harmonised approach when introducing strategic public procurement provisions in order to achieve the environmental and climate EU objectives." Fair to say this is a weird start for a document about the ECA report which is focused essentially on competition and not sustainability.

But the Council goes further, especially on paragraphs 10 and 11.

On paragraph 10 it questions the profusion of sectoral instruments containing provisions in public procurement and how these interplay with the Directives. Moreso, it asks the Commission to examine this issue in depth, although this may be a request that will fall in deaf ears as previous ones.

Paragraph 11, however, delivers the killer blow. While recognising that 'possibly' new procurement rules for promoting sustainable procurement and fair and effective competition are needed, it calls for streamlining existing rules and "UNDERLINES the importance for public buyers to retain flexibility in determining the nature and inclusion of strategic considerations in their procedures."

This is evidence that the Council is no longer part of the hype train of adding strategic objectives to public procurement and especially not of making sustainability mandatory. It would appear at least one EU institution is aware of the tradeoffs and downsides that the move implies. Now, that is indeed the discourse being changed.

There is no current proposal on the table to reform the procurement Directives nor it appears to be in the formal agenda for the new future despite the Council's prodding. Nonetheless, sooner or later they will have to be revised and the point of the complexity arising from sectorial legislation dipping into procurement territory is well made. However, political winds twist and turn so it is quite possible that the view of the Council may change in the meanwhile. But let's not forget that the Council represents the national governments, ie those politicians that have been at the forefront of the political fallout of the green transition and the costs it imposes on its citizens. As I have been saying to proponents of mandatory sustainability obligations in public procurement for some time: ignore efficiency at your peril.