More Than a Nudge? Arguments and Tools for Mandating Green Public Procurement in the EU

Abstract

The present research paper analyses the EU general and mandatory sectoral legal framework on public procurement, arguing for its inhibiting effect on the EU-wide uptake of green public procurement. It explores de jure and de facto barriers to green public procurement, motivated by the need for a change in the business world towards more sustainable practices through preferably mandatory legal changes of EU corporate law. As the public procurement represents a strong nudge for a qualitative change in private market demand, accounting for a minimum of 12% of the national gross domestic product, it should become environmentally sustainable itself and guide markets through the qualitative and quantitative changes on the demand side. Given the complexity of the current legal framework and the novelty of the approach to public procurement as a strategic tool for the achievement of sustainable production and consumption, a better defined and clear legislative approach is called for, possibly in a mandatory form, clarifying the obligation of public procurers to account for sustainability in their practices, especially as regards incorporating environmental concerns in their purchasing activities. In its current form, the EU legislative public procurement framework entails a seemingly permissive attitude towards green public procurement, hampered in practice by the existing legal institutes in the field, which hamper the strategic use of public procurement and thereby its influence on sustainability on the private markets.

A systematic review of barriers impeding the implementation of government green procurement

“…Hence, enacting national legislation and reflecting it at sub-national levels (Appolloni et al , 2019) may be the right way forward to solve legal barriers for GGP. Since voluntary GGP resulted in modest uptake by EU national public administrations (Mélon, 2020), mandating GGP was suggested as a firm way to kickstart GGP implementation (Igarashi et al , 2015), although the study by Diófási and Valkó (2014) did not find a clear link between mandatory GGP and the number or value of GGP.…”

Assessing the Degree of Sustainability Integration in Canadian Public Sector Procurement

“…We identified a need to understand the degree of sustainability integration in existing public sector RFPs and conceptualized the research based on discussions and prior research [9][10][11][12][13][14][15][16][17][18][19][20]. We specifically and inductively considered a number of factors, including potential to reflect ultimate integration of sustainability, bearing on the supplier selection, relevance across categories being considered, coverage of efforts being undertaken, and potential value for future evaluations.…”

“…However, organizational leadership style has a positive impact on the likelihood of sustainable procurement practices [11], although there can still be insufficient support for sustainability tools in a trade-off situation [12] and a lack of influence by procurement professionals on the implementation of sustainability [13]. From a legislative framework perspective, green public procurement (GPP) [14] appears to be hindered by the legal institutes already in place [15].…”

Sustainable Public Procurement Best Practices at Sub-National Level:

“…PPI allows the public authorities to act as launch customers and promote the use of innovation-friendly procurement practices. Inserted in the EU law as of the year 2014 61 as procurement where contracting authorities act as a launch customer of innovative goods or services which are not yet available on a large-scale commercial basis, 62 PPI calls for innovation to cater to societal needs in general and has not been envisaged exclusively for achieving sustainability goals. 63 It can be argued that PPI serves those goals as a matter of reverse causality: sustainability by default requires novel solutions for minimising negative societal and environmental impacts of the existing linear production methods, thereby holding a special place in the PPI process.…”

“…Furthermore, as PPI does not require the same amount of training and guidance as GPP, as the innovative solutions are 60 Agenda 21 (n52). 61 to be provided by the tenderers themselves, it is used as an example of furthering of sustanability policy through new forms of public-private partnerships.…”