Human Rights in Public Procurement - Protecting them Properly?
Although EU lawmakers have stressed the importance of enabling smart, inclusive and sustainable growth, a lack of clear procurement guidelines could mean human rights and sustainable development issues are not taken into account, argues researcher Ragnhild Lunner.
The increased focus on sustainability in public procurement is reflected in the revised EU public procurement directives from 2014. Here EU lawmakers have aspired to provide a toolbox for contract authorities who wish to promote common societal goals, such as the protection of human rights and the environment.
However, the lack of guidance may lead to the scope of action not being used. This could lead to contracting authorities not taking human rights and sustainable development issues into account when procuring goods and services
The link between sustainable development and human rights
The EU Commission has underlined the importance of EU’s affiliation with the UN Sustainable Development Goals to promote human rights and sustainable production and consumption. According to the Treaty on European Union (TEU), article 2, respect for human rights is one of the core values of the EU.
The Court of Justice of the European Union (CJEU) has also linked sustainability and human rights in the opinion Singapore. Here, CJEU established that several fundamental human rights, such as the prohibition of child labour, in correspondence with the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, ‘were associated with the objective of sustainable development’.
These principles encompass the eight core rights of the ILO Convention, as also referred to in annex 10 of the Directive. Thus, the Directives, the CJEU and the EU institutions establish a connection between the goal of sustainable development in the TEU and human rights.
Labelled products and other requirements
One example where there is great potential, but where guidance is lacking, is in connection with technical specifications. A new and promising development is the clarification of the legality in requiring ethical labels, such as Fairtrade.
An examination of article 42 read in the light of the preamble recital 2 and TEU article 3(3) and 3(5), also indicates a wide scope of action when it comes to stating technical specifications which promote the respect for human rights.
The contracting authorities may for example demand that goods should be produced in respect to a certain ILO convention or other relevant human rights provisions. But this wide discretion and, consequently, scope of action, has been criticized in the literature, because too much discretion can lead to uncertainty and a tendency not to use such measures, as well as discrepancy between EU countries.
Also, the examples of technical specifications given in annex 7 of the Directive does not refer to any social or human rights related aspects of such specifications. When faced with unclear wording and lack of examples and guidance from the Commission or governments, contracting authorities may be reluctant to take human rights considerations into account in the procurement process.
Social life-cycle cost analysis
Another example is life-cycle costing evaluations in award criteria. The Directive (see preamble 96(3)) allows taking into account social life-cycle costs, in accordance with a UN model for such evaluations.
The UN model includes analyses of the risk of violations of human rights as a part of the life-cycle of a product. Article 68 gives a model for calculating lifecycle costs, but only in relation to environmental cost. Therefore, the lack of clear reference to this model in the article and the specification to how public procurers may take potential social costs of buying a product into account, is problematic.
Exclusion of unethical tenderers
Lastly, there is great potential in the exclusion rules. However, they are often discretionary and not obligatory. They are also often directed towards the economic actor who offers the tender, and not the economic actors in the global value chain, where the breach to human rights is more likely to happen.
And the provision which may give the strongest grounds for exclusion relating to human rights issues in the value chain (article 57(4) first paragraph c) which relates to grave professional misconduct and a lack of the necessary integrity, is vaguely phrased. It gives little guidance as to what kind of reasons are sufficient for excluding a tender.
This blog post is based on the printed article ‘Human Rights in Public Procurement - Protecting them Properly?’, written by Ragnhild Lunner and printed in European Procurement & Public Private Partnership Law Review (EPPPL), Volume 13 (2018) issue 3. The article is based on the author’s master's thesis ‘The consideration of human rights in public procurement. Norwegian contracting authorities’ legal scope of action to promote respect for human rights in the procurement process’, University of Oslo (2018) (available in Norwegian).
The author would like to warmly thank Professor Beate Sjåfjell and Anja Wiesbrock, thesis supervisors.
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