La disciplina comunitaria degli appalti pubblici e le secondary policies
Author(s)
Morettini, Simona
Date Issued
February 5, 2009
Type
Doctoral Thesis
Abstract
The interest of the European community towards pubic procurements started in
1971 with the directive on public works, due to their serious impact on the unique
market.
At first, the attention of the community legislator was focused, in particular, on
the implementation in such sector of a number of general principles such as free
competition, non- discrimination, transparency and fair and equitable treatment. The
reason of the procurement policy was the creation at the European level of a number of
competitive conditions in order to award public contracts without discrimination and to
use public assets rationally through the choice of the best bid.
For such a purpose, all the European directives issued since 1971 have only
provided particular rules on the definition of the subject matter of procurements, the
selection procedures of bidders and , in particular, the award of the contract on the basis
of economic, objective and easy-to-measure criteria.
For many years, then, European legislation has not provided any reference to the
possibility of introducing elements of non-economic nature in the sector of public
procurements, limiting the analysis to the aspects traditionally connected to the
objectives of the internal market.
Anyhow, during the last years, as the concept of “ sustainable development” was
becoming popular, the community institutions have gradually started to consider the
ethical and environmental issues, combining them with the other common policies.
From such combination has derived, also at the European level, the policy named
Sustainable Public Procurement (SPP), that is the possibility to implement sustainable
criteria such as ethical, social and environmental evaluations in one of the main
community policies among those of the internal market: this is the public procurements
policy.
We hereby analyze the origins and development of the “Sustainable Public
Procurement” within the European Union.
6
The study aims to responding to the following questions: what are the
consequences of the implementation of some issues belonging to secondary policies in
the public procurements regulated by European law? To which extent and how the EU
institutions have succeeded in the combination of environment protection and social
policy to the general principles of free competition, transparency, non discrimination
that have always been at the grounds of the common policy of public procurements?
Through the communications of the Commission, the cases of the Court of Justice
and the European provisions, we will firstly examine the institutional debate held at the
community level regarding the possibility to implement environmental and social issues
in the public procurements legislation. Secondly, after having summarized the
Sustainable Public Procurement experience carried out at the international, domestic
and local level, we will analyze the origins, the contents and the benefits of the
“Sustainable Public procurements” as recently outlined by the European Commission.
At the end, we will describe how the European Community and its Member
States, as parties in the Government Procurement Agreement (GPA), will be constantly
implementing social and environmental issues in the legislation of public procurements
avoiding any conflict with the economic and trading goals pursued by the World Trade
Organization (WTO).
Additional information
Dottorato di ricerca in Diritto dei contratti pubblici e privati
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