Issues in EU procurement law and
human rights
David Hansom, Partner, London
EU Roadmap to Business and Human Rights, Amsterdam, 11 May 2016
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
Overview of EC/EU initiatives
• €425 billion (3.4% of EU GDP) spent by member states on supplies,
works and services
• EU law aims for promotion of single market and non-discrimination
• Regulated/influenced by
• Public Procurement Directives (2009/81/EC; 2014/23/EC;
2014/24/EC and 2014/25/EC);
• Case law (e.g C513/99 - Concordia Bus Finland Oy Ab v Helsingin kaupunki and
HKL-Bussiliikenne)
• UNGPs and National Action Plans
• EU guidance
• National guidance (often statutory)
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
Overview of EC/EU initiatives
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Directives apply to all “contracting authorities” and utilities
Contracts over financial thresholds need EU wide advertisement
Different rules for defence, concessions and certain services
Historic focus on cost only
2014 Directives promote use of qualitative approaches
More social/human rights measures at selection and evaluation
Labels/certification
Can look at sub-contractors
Evaluation must be on best cost/quality ratio
Criteria linked to “subject matter of the contract”
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Lawyers & Parliamentary Agents
Overview of EC/EU initiatives
• UNGPs set out broad framework
• “Protect Respect and Remedy”
• “States should promote respect for human rights by business
enterprises with which they conduct commercial transactions”.
• National Action Plans
• Defence procurement Codes of Conduct
• EU Communication on CSR – limited to environmental and little on
social criteria
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Lawyers & Parliamentary Agents
Challenges and opportunities
• Directives
• Tension between economic policy and human rights
• Much is discretionary and considerable inconsistency
• Need to link evaluation criteria to subject matter of contract
− Difficult to make relevant to supplies contracts?
• Need a conviction to exclude
− Subsidiaries and non state actors – difficult to enforce?
• Risk of legal challenge, especially if market exclusion
• UNGPS
• Non legally binding
• Not all states have National Action Plans
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
Challenges and opportunities
• Opportunities
• Europe 2020
• National Action Plans supported by statutory guidance
• Directives do give more flexibility
− Can look at social criteria at selection and award stages
− Build into contract terms?
− Lower value contracts less regulated
− Legal challenge under Directives generally time limited
− Scope to be braver!
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
David Hansom
Partner
[email protected]
(+44) (0) 207 665 0808
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents