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2020 | Book

Green Public Procurement under WTO Law

Name: Green Public Procurement under WTO Law
ISBN: 978-3-030-48213-8

Experience of the EU and Prospects for Switzerland

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Book Series: European Yearbook of International Economic Law

Author: Rika Koch

Publisher: Springer International Publishing

Print ISBN: 978-3-030-48213-8

Electronic ISBN: 978-3-030-48214-5

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

This book investigates the strategic use of public procurement as a way to establish “buying green” as a common practice – not only in the EU, but all over the world. However, imposing environmental requirements may affect the conditions of competition between suppliers, especially between local and foreign ones. This is particularly relevant for signatory states to the Government Procurement Agreement (GPA), a plurilateral WTO agreement that aims at liberalizing public procurement markets. So how can these countries strike a balance between trade concerns and using the environmental potential of public procurement? What scope does the GPA 2012 leave for environmental criteria and how are signatory states making use of it? The need for answers to these questions is becoming even more pressing with the increasing use of green public procurement (GPP).

This book discusses approaches to finding legal solutions to this question, using a multilayered approach to do so: In a first step, an analysis of the pertinent GPA provisions serves to delineate the scope for GPP under WTO law. In a second step, an evaluation of the implementation of the respective provision at the regional and national level by the EU and Switzerland helps reveal the impact of the GPA on its signatory states. While the book chiefly focuses on the legal framework for GPP, it also takes into account the latest developments in jurisprudence and policy initiatives. It concludes by proposing practical solutions regarding the specific design of GPP policies and measures in compliance with the GPA.

The comparative approach applied in the book, focusing on the implementation of the WTO/GPA by two selected signatories, makes it an informative and insightful resource for practitioners, policymakers and legal scholars from all GPA signatory countries, extending its relevance beyond the selected examples (the EU and Switzerland).

Frontmatter

Chapter 1. Introduction

Abstract

With the acknowledgment of environmental protection as an important governmental responsibility, environmental aspects in public procurement have been receiving growing attention in recent years. Governments build schools (and other public buildings) out of wood instead of concrete, hospitals serve food from organic producers and public buses use electricity instead of diesel—all with the aim of protecting the environment. What is generally referred to as “green” public procurement (GPP) is increasingly perceived as a viable way to contribute to environmental protection policies.

Rika Koch

Conceptual Framework

Frontmatter

Chapter 2. Public Procurement Regulation

Abstract

This chapter lays down the foundation for understanding GPP and the underlying concept of public procurement. It starts by defining the term of public procurement, discussing the need for regulation and by illustrating the tensions that can arise between its various objectives. Thereby, it highlights possible conflicts between what is termed “international procurement” and the protectionist practice to national interests of the local industry. Finally, this chapter depicts the controversy surrounding “horizontal policies” in public procurement with the aim of embedding the phenomenon of GPP in this wider context.

Rika Koch

Chapter 3. Green Public Procurement (GPP)

Abstract

This chapter introduces the concept of GPP, providing a working definition of this term. It discusses its relevance taking into consideration various perspectives, before focusing on the environmental perspective, showing how GPP can add to a country’s overall environmental protection strategy by being an effective market-based “environmental policy instrument”. For a better illustration, this chapter provides a number of examples of GPP in various areas, illustrating its practical application as well as its environmental and economic impact. The last section concludes the chapter by providing an analysis of the four most important instruments of public procurement.

Rika Koch

World Trade Organization

Frontmatter

Chapter 4. GPP and International Trade Regulation

Abstract

The controversy surrounding GPP forms part of a bigger debate, namely the controversy about environmental policy measures and their conformity with international trade law. This chapter embeds GPP in the broader context of what is often referred to as the “trade and environment” debate. It will show how efforts to combat climate change on an international level evolved within the framework of the United Nations (UN) and contrasts these developments with the efforts made within the GATT/WTO framework. It then shows that the changed perception of priorities in the trade and environment debate also spilled over to other fora that operate at the intersection of international trade and procurement, such as the World Bank and the United Nations commission on International Trade Law (UNCITRAL).

Rika Koch

Chapter 5. Relevance of the Multilateral WTO Agreements

Abstract

The lack of jurisprudence under the specific public procurement framework legislation makes it necessary to use general WTO jurisprudence as the only guideline to make assumptions on how to interpret the GPA in case of conflict. This chapter therefore analyzes GPP through the lens of general WTO law. It scrutinizes the various forms of non-discrimination principles in different WTO agreements, focusing on the scope for environmental policy measures. A special focus lies on the assessment of the public procurement derogation enshrined in the GATT/GATS, illustrating the latest development of WTO jurisprudence and providing a critical assessment of the precedence set in the Canada – Renewable Energy Case.

Rika Koch

Chapter 6. Government Procurement Agreement

Abstract

The pertinent agreement for public procurement regulation is the GPA. This chapter provides an overview of the modus operandi of the GPA as an plurilateral agreement, binding only its signatory states. Moreover, it provides a detailed assessment of the GPA’s various non-discrimination principles. In a next step, it illustrates how the various public procurement instruments have been “greened” by the recent revision in 2012. The focus of the assessment lies on elaborating upon their relevance for GPP on the one hand, and the legal requirements they lay down regarding non-discrimination on the other hand. The assessment of this chapter is complemented by an in-depth analysis of the environmental justification reasons enshrined in the GPA’s exception catalogue.

Rika Koch

Part III

Frontmatter

Chapter 7. Regional Public Procurement Regulation and Implementation of the GPA

Abstract

This chapter sets the foundation for the analysis of GPP on a regional level. The EU’s regulatory framework for public procurement contains the most comprehensive GPP elements. Since the EU is a signatory to the GPA, the question is raised how this elaborate GPP framework is compatible with the EU’s non-discrimination obligations under the GPA. This chapter starts answering this question by providing a brief overview on the development of (and the rationale behind) the EU’s public procurement framework regulation, embedding it into the context of the EU’s general non-discrimination requirements. Moreover, it discusses questions of impact, direct effect and equivalence of the GPA and the EU public procurement regulations.

Rika Koch

Chapter 8. Regulatory Scope for GPP

Abstract

This chapter focuses on the legislative framework for GPP in the EU. It analyzes the development of GPP on three levels; firstly on the level of jurisprudence, secondly on the level of legislation and, thirdly, on the policy level. It then highlights the Environmental Integration Principle (EIP) as an important environmental guiding principles for EU states and discusses its legal significance for GPP. The remaining sections of this chapter illustrate the regulation of the public procurement instruments in the EU public procurement directive and demonstrate their effectiveness as a tool for GPP implementation.

Rika Koch

Part IV

Frontmatter

Chapter 9. Domestic Public Procurement Regulation and Implementation of the GPA

Abstract

This chapter depicts the challenges that GPA Signatory States are facing in the effort to implement the GPA and reconcile it with domestic public procurement legislation. This becomes especially apparent in Switzerland, where public procurement regulation has developed historically and is deeply rooted on a local level. Behind this background, this chapter highlights the particularities of Swiss public procurement laws, specially focusing on the question of how the (revised) GPA changed the regulatory landscape. Moreover, this chapter shows an overview over the various non-discrimination principles enshrined in the Swiss constitution as well as in Swiss public procurement legislation.

Rika Koch

Chapter 10. Regulatory Scope for GPP

Abstract

This chapter starts with a short illustration of the evolution of GPP in Switzerland. Firstly, it assesses the role of the environmental elements in the constitution. It then takes a closer look at GPP implementation through the revised public procurement laws on a technical level: Sections 10.1–10.6 assess the technical level of GPP implementation, providing an in-depth analysis of the changed rules on technical specifications, award criteria and supplier related criteria. The last section concludes with some observations regarding the changed scope of GPP for Switzerland under the revised GPA and under the revised Swiss public procurement laws respectively.

Rika Koch

Concluding Remarks

Frontmatter

Chapter 11. Conclusion

Abstract

This thesis has assessed the scope for GPP under WTO law in view of the GPA’s non-discrimination requirements. It followed a multilayered approach, assessing three different regulatory levels: Part I started with general observations, embedding GPP in the broader context of the trade and environment debate. Part II then turned to the level of the WTO, discussing the role of public procurement as well as GPP and analyzing the wording of the revised GPA under consideration of interpretational approaches. Part III and Part IV focused on the level of implementation, illustrating firstly the regulatory context and design of the EU public procurement directives and secondly, analyzing the scope for GPP in Switzerland against the background of the total reform of Swiss public procurement laws.

Rika Koch

Backmatter

Title: Green Public Procurement under WTO Law
Publisher: Springer International Publishing
Print ISBN: 978-3-030-48213-8
Electronic ISBN: 978-3-030-48214-5
DOI: https://doi.org/10.1007/978-3-030-48214-5
Author:: Rika Koch

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