An Obligation for Sustainable Procurement? Gauging the Potential Impact of Article 11 TFEU on Public Contracting in the EU

The integration of environmental criteria into public procurement contracts can constitute a powerful tool to promote desired environmental practices in the EU. As major purchasers of goods and services from the private sector, public entities have significant market power allowing them to influence corporate behaviour by attaching environmental criteria to public contracts. Behind the background of the current revision of the procurement directives, this article discusses the potential implications of the environmental integration principle (EIP) on public contracting in the EU. It is argued that Article 11 TFEU incurs an obligation for the EU legislator to ensure that national authorities are not in a position to entirely disregard environmental concerns. Moreover, the environmental integration principle implies an obligation for a wide use of environmentally friendly procurement mechanisms where no conflict with the objectives of value for money and competitive tendering arises. In the case of competing interests, a proper balancing exercise requires environmental measures that are least restrictive on competitive tendering as well as a procurement framework that is least restrictive on environmental protection.

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