Green public procurement – European law, environmental standards and 'what to buy' decisions

The EU's 'Europe 2020 Strategy' and 'Sustainable Development Strategy' portray 'green procurement' by public purchasers as an essential market-based instrument to achieve the EU's economic, environmental and energy goals. The ability of public purchasers to play the role assigned to them depends upon their freedom to require that the things they purchase meet high environmental standards. It has, however, been suggested that EU law itself prevents them from demanding that their purchases must meet such standards, and especially that it prevents them from requiring that they meet standards higher than the EU's harmonised standards for the general marketing of products. This article argues that such a conclusion is not justified by the CJEU's procurement jurisprudence; and that it conflicts with the two strategies mentioned above, with indications given in the EU's procurement legislation, and with the Commission's practice as regards the development of green public procurement criteria.