Hållbar utveckling genom miljöbaserad offentlig upphandling? Miljökriterier i utvärdering av det ekonomiskt mest fördelaktiga anbudet

Abstract

Summary

Europe’s public authorities are influential consumers. If they spend their money on greener products and services they can make an important contribution to the work towards a sustainable development. Green public procurement can thereby significantly improve the take-up of new environmental technologies. Through the effects of economies of scale, production costs be lowered and better equip us to fight environmental problems.

The EU’s new Public Procurement Directives of 2004 was implemented in the Swedish legislation in January 2008. The new legislation makes clear that public purchasers can include environmental criteria in their tender documents. The legislation mainly consists of a codification of case law and has not significantly increased the allowance of environmental award criteria. According to practicing procurers the changes in the legal framework however contribute to transparency legality when using environmental criterions. However, major barriers to green public procurement still exist. Because of legal uncertainty and the procuring entities lack of knowledge, environmental criterions are often poorly formulated. The main task of this essay is to describe and analyze to what extent procuring entities may use environmental award criteria. One of the main problems with environmental standards in public procurement is the inconsistency that may rise with fundamental European community principles such as non-discrimination and free movement. The public procurement legal framework is written with a strictly economical approach with aiming to maximize the utility for the procuring entity, and thereby the tax payers. At the same time the legislation aims to increase the competition between potential dealers in the market. Since public funds finances the procurement the idea is that the bid which is that the economically most advantageous bid shall be awarded. However, the doctrine and the legal framework has developed in order to adapt to the increased environmental awareness in society and enable for procuring entities to show environmental considerations. Even though economical liberalism is the foundation of the European Union, environmental protection and consideration must be respected. The ECJ has made clear that public authorities can use environmental criterions in their public procurement. As long as the criterions are well formulated the procuring great room exists to use environmental award criteria. Especially when the purpose of the award criteria is to reach an environmental goal set up by the union. Because of the lack of a precise procurement framework the courts have the power to decide upon the final limits and allowance of environmental award criteria.