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

Ref. Ares(2021)5761837 - 21/09/2021

Offentligt

EUROPEAN COMMISSION

DIRECTORATE-GENERAL FOR INTERNAL MARKET, INDUSTRY, ENTREPRENEURSHIP

AND SMES

Investment

C2. Public Procurement

Brussels, 17 September 2021

GROW.C.2/KKV/AL/JG

grow.c.2(2021)6464553

Mette Rose Skaksen

Carl Jacobsens Vej 35 DK-2500

[email protected]

Questions regarding the use of labels in public procurement:

Dear Ms Skaksen,

Thank you very much for your letter on the issue of labels in public tenders. We welcome

the initiative of the Danish Government to launch a new strategy on green public

procurement. Public purchases are an essential instrument to contribute to the substantial

reduction of emissions we need to implement by 2030. The Commission is committed to

assist Member States in transforming public procurement in a tool to achieve

environmental goals.

Labels, in particular, represent an important element of legal certainty and simplification

for both public buyers and economic operators in the transition towards a systematic use

of sustainability considerations in public procurement. We hope the answers below can

facilitate their use at national level. This is why we are also publishing them on the

Commission’s Wiki webpage on public procurement, which is accessible to the

representatives of all central governments of the 27 EU Member States.

Electronically signed

Katharina Knapton‑Vierlich

Head of Unit

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

Office: N105 03/045

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

Reply to the Danish Consumer and Competition Authority’s questions on labels in

public procurement

Question:

Does the Commission agree that label requirements under article 43(1)(a)

may contain criteria as defined in article 42 regarding technical specifications? And in

that case:

a) May label requirements also include criteria referring to the specific 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

subject-matter of the contract and proportionate to its value and its objectives, cf.

the definition in article 42? or

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

understood as requirements only concerning the “material substance” of the

work, product or service?

Reply:

Article 43(1) first subparagraph expressly indicates that contracting authorities

may use label requirements in technical specifications. Therefore, whenever label

requirements are used in technical specifications, they will also include criteria

complying with Article 42(1) second subparagraph.

Question:

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

contain criteria consistent with the definition of technical specifications in article 42?

Reply:

No. Article 43(1) first subparagraph clarifies that label requirements may be used

not only as technical specifications, but also as award criteria and/or contract

performance conditions. There may therefore be cases where label requirements are not

suitable to be used in technical specifications, but may be used in award criteria and/or

contract performance conditions.

Question:

If “no” to question 2, what is then the implication of the second condition in

article 43(1)(a)? That is, how is “appropriate to define characteristics” 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

consistent with the second condition but which are not technical specifications as defined

in article 42?

Reply:

The second condition spelled out in Article 43(1)(a) means that to be compliant

with EU Law and thus be used in the tender documents label requirements must describe

the characteristics of the purchase at hand. These characteristics may relate to different

stages and elements of the production process, and they cannot include elements which

are not consistent with the product, works or service at hand (e.g. if the subject matter is

fished seafood, the label requirements used in the tender cannot impose environmental

requirements related to seafood breeding).

In other words, the two conditions established in Article 43(1)(a) produce very similar

effects and should be read as reinforcing each other.

Label requirements can indeed be consistent with the second (as well as the first)

condition and not be fit for use as technical specifications. Requirements relating e.g. to

conditions applicable to the staff performing the contract or the trading conditions of the

goods, are in fact unlikely to qualify as technical specifications, as technical

specifications relate to considerations directly concerning the product characteristics and

its production process. Requirements concerning the staff’s treatment and trading

conditions relate to how the contract needs to be performed, and as such they may be

used as award criteria or contract performance conditions. For instance, fair trade label

requirements for a specific product, or Ecolabel requirements aiming to ensure

compliance of suppliers of the specific goods with ILO Conventions may be compliant

with Article 43(1)(a) and may be used in award criteria or contract performance clauses,

but not in technical specifications.

Electronically signed on 20/09/2021 18:22 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482