L 199 - 2021-22 - Endeligt svar på spørgsmål 32: Spm. om at oversende Konkurrence- og Forbrugerstyrelsens spørgsmål om anvendelsen af miljømærker som krav i offentlige udbud og Kommissionens besvarelser af disse, til erhvervsministeren

Erhvervsudvalget 2021-22
L 199
Offentligt

Unit C2 – Public Procurement

[email protected]

Date: 6. juli 2021

Case: OK-21/06684-4

Ref: /paj

Questions regarding the use of labels in public procurement

The Danish Government has launched a new strategy "Green Procurement

for a Green Future - Strategy for green public procurement”. According to

the strategy, a greener public procurement shall contribute to achieving the

target of reducing Denmark's greenhouse gas emissions by 70 per cent in

2030. As part of the strategy, it will be mandatory for government procure-

ment officers to choose eco-labelled products for some product groups.

Against this background, we have a few questions regarding the interpre-

tation of article 43(1)(a) of Directive 2014/24/EU. We hope that you can

elaborate on and possibly clarify the meaning of the conditions in question.

It is our understanding that article 43(1)(a) contains two cumulative condi-

tions for label requirements. 1) the label requirements must be linked to the

subject-matter of the contract (hereafter the first condition) and 2) the label

requirements must be appropriate to define characteristics of the works,

supplies or services that are the subject-matter of the contract (hereafter the

second condition).

In respect of 2), it is our understanding that “label requirements appropriate

to define characteristics” can be understood in the same way as technical

specifications under article 42(1) i.e. that the technical specification shall

lay down the characteristics required of a works, service or supply.

This gives rise to the following questions:

1) Does the Commission agree that label requirements under article

43(1)(a) may contain criteria as defined in article 42 regarding tech-

nical specifications? And in that case:

a) May label requirements also include criteria referring to the spe-

cific process or method of production or provision of the requested

works, supplies or services or to a specific process for another

stage of its life cycle even where such factors do not form part of

their material substance provided that they are linked to the sub-

ject-matter of the contract and proportionate to its value and its

objectives, cf. the definition in article 42?

Danish Competition and

Consumer Authority

Carl Jacobsens Vej 35

DK-2500 Valby

Tlf.

+45 41 71 50 00

CVR-nr. 10 29 48 19

EAN-nr. 5798000018006

[email protected]

www.kfst.dk

MINISTRY OF INDUSTRY, BUSINESS

AND FINANCIAL AFFAIRS

L 199 - 2021-22 - Endeligt svar på spørgsmål 32: Spm. om at oversende Konkurrence- og Forbrugerstyrelsens spørgsmål om anvendelsen af miljømærker som krav i offentlige udbud og Kommissionens besvarelser af disse, til erhvervsministeren

b) Shall requirements that are “appropriate to define characteristics”

instead be understood as requirements only concerning the “mate-

rial substance” of the work, product or service?

2) Does the second condition in article 43(1)(a) mean that labels must

only contain criteria consistent with the definition of technical specifi-

cations in article 42?

3) If “no” to question 2, what is then the implication of the second con-

dition in article 43(1)(a)? That is, how is “appropriate to define char-

acteristics” to be understood and how does the effect from the second

condition differ from the resulting effect of the first condition? And

can you provide us with some examples of label requirements con-

sistent with the second condition but which are not technical specifi-

cations as defined in article 42?

4) If “yes” to question 2:

a) Does that mean that label requirements may include criteria re-

garding for example the CO2 emission in the production process,

but not certain social criteria such as wage levels of production

workers or workers safety measures?

b) In this case, how should the reference to specific environmental,

social or other characteristics and the permission to require spe-

cific labels in either the technical specifications, the award criteria

or the contract performance conditions in article 43 be under-

stood?

We will be looking forward to hear your answers to the above-mentioned

questions.

Thank you in advance.

Yours sincerely

Mette Rose Skaksen

Deputy Director General