International Construction Law Review
ENVIRONMENTAL PROVISIONS IN PUBLIC PROCUREMENT DIRECTIVE 2004/18/EC
DR H NIJHOLT
Lecturer in Private Law at the University of Maastricht, The Netherlands
1. INTRODUCTION
Area of tension
Recently, on 28 January 2004 (the European Parliament) and 2 February 2004 (the Council), agreement was reached at European level on the adoption of a new procurement Directive for public works, services and supplies.1
Not an easy task! After the usual co-decision procedure a conciliation procedure was needed to help the Council and (representatives of) The European Parliament reach a common position.2
One of the points under discussion was the use of environmental criteria in the awarding of a contract. The old procurement Directives3
did not contain any explicit references to environmental protection or considerations. Not surprisingly: when these Directives were formulated, everyone’s attention was fixed on the completion of the single market. With the Amsterdam Treaty4
the integration of environmental requirements received greater pride of place in the (procurement) policy in the acknowledgement that this integration is essential to the realisation of sustainable development.5
Since then Article 6 of the EU Treaty has stipulated that environmental protection criteria should be integrated into the formulation and implementation of the policy and actions of the Community, in particular with an eye to the promotion of sustainable development.
Martín has made a plea for an approach to government procurement that
1 Directive 2004/18/EEC.
2 Joint text approved by the Conciliation Committee, C5–0607/2003, PE–CONS 3696/03, Brussels, 9 December 2003.
3 Council Directive 93/36/EEC of 14 June 1993 co-ordinating procedures for the award of public supply contracts, OJ 1993, L 199/1, as amended by Directive 97/52. Directive 93/37, OJ 1993, L 199/54 (Works) and Directive 92/50, OJ 1992, L 209/1 (Services).
4 OJ C 340 of 10 November 1997.
5 “Environment 2010: Our future, Our choice”—The Sixth Environment Action Programme, Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on the sixth environment action programme of the European Community, COM (2001) 31–1 also mentions public procurement as an area in which environmental considerations could play a major role in the “greening” of the market because environmental performance could be applied as a purchasing criterion.
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Environmental Provisions in the Public Procurement Directive
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