The European Commission set out its plan to increase sustainable and resilient production in Europe and to pursue competitiveness and decarbonisation, in a Clean Industrial Deal and an Action Plan for Affordable Energy.
One of the areas earmarked for change is public procurement law. The Commission will make a proposal to revise the Public Procurement Framework. It describes the action as 'revision of Public Procurement Directives to mainstream the use of non-price criteria', to be done by Q4 2026.
The intent is to allow for sustainability, resilience and European preference criteria in EU public procurement for strategic sectors. The aim is also to consolidate public procurement provisions. This is welcome given that there are now provisions relevant to public procurement across several pieces of legislation, including the Foreign Subsidies Regulation, the Net Zero Industry Act, the Critical Raw Material Regulation, the Internal Market Emergency Resilience Act, the Recast Energy Efficiency Directive, and the revised Construction Products Regulation.
The Commission now also proposes that a new Industrial Decarbonisation Accelerator Act will introduce resilience and sustainability criteria to support clean European supply for energy-intensive sectors. Examples of criteria are described as 'clean, resilient, circular, cybersecure'. The Commission signals potential to widen the application of non-price criteria to the EU budget, national support programmes, and public and private procurement benefitting energy-intensive industries.
Interestingly, the Commission also intends that the criteria in a revised Public Procurement Framework will be extended to incentivise private procurement, through measures related, for example, to life cycle-based CO2 emission performance standards. The Commission will assess how to include requirements and non-price criteria in product legislation relating, for example, to low-carbon steel, renewables or sustainable battery cells, as well as building codes. It will develop a voluntary label on carbon intensity of industrial products under the Industrial Decarbonisation Accelerator Act.
Navigating the inclusion of new types of criteria in public procurement processes will require a considered and pragmatic approach. In the meantime, it is worth remembering that a call for evidence and public consultation on the EU Procurement Directives is underway until 7 March 2025. The aim of this consultation has been to evaluate the legislation to assess whether the rules are working as intended. The Directives are to be evaluated against the criteria of effectiveness, efficiency, relevance, coherence and EU added value. Views are also invited from the Office of Government Procurement in Ireland to inform its engagement in the overall consultation process.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
