Statement
concerning the integration of social considerations into public procurement
Interpretative communication of the Commission on the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement, 15 October 2001 (COM (2001) 566 final)
Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts, 10 May 2000 (COM (2000) 275 final)
For a long time, djb has been of the opinion that public procurement is a suitable instrument for the enforcement of gender equality at the workplace. Therefore, djb demands a stronger link between public commissioning and voluntary public grants on one hand and proof of compliance with non-discrimination rules on the other hand as well as regard being given to the implementation of effective measures to foster equality on the side of undertakings with regard to public procurement.
Thus, the djb welcomes that the European Commission, in connection with the intention to simplify the laws of public procurement by consolidating the three directives on public supply, public service and public works contracts (see COM (2000) 275 final), has decided to render more precisely the consideration of social concerns in the process of public procurement – among these the realization of equalityrelated goals (see COM (2001) 566 final).
djb comments on the Commission’s proposals as follows.
The interpretative communication
djb welcomes the integration of social concerns into public procurement process as an essential element of European public procurement law. The clarification that a contracting authority may take social concerns into account when determining the most economically advantageous tender where they provide an economic advantage for the contracting authority which is linked to the product or service which is the subject matter of the contract is a first step into the right direction. djb welcomes that the European Commission explicitly clarifies that a tenderer may be excluded from the tender action for non-compliance with legislation promoting equal treatment of women and men.
In this context, it should be stressed that the European Commission accepts with regard to the decisions of the ECJ that social criteria may be considered as an “additional criterion”. Yet it is entirely incomprehensible to djb why the European Commission denies that the ECJexplicitly clarified that social criteria may also be considered as an award criterion. Hence, djb criticizes that social concerns are not taken into consideration as award criteria and that the promotion of social goals can merely be made a condition for the execution of a contract. Thus, djb considers it necessary for the European Commission to adapt its communication to the judicature of the ECJ and to clarify that social criteria are legally admissible as qualification and award criteria.
Coordination Directive
djb criticizes that the European Commission also assumes in its proposal for a coordination directive that social concerns may largely only be considered as conditions in the performance of the contract but may neither be taken into account as a criterion for the selection of tenderers nor for the award of the contract. Accordingly, social concerns are not mentioned in the description of the award criterion “most economically advantageous”, even though the additional criterion of environmental characteristics can be found there. Thus, djb welcomes that the European Parliament’s Committee on Legal Affairs and the Internal Market has expressed support for the incorporation of equal treatment as an explicit award criterion in its statement of 29 October 2001.
25 March 2002
Margret Diwell Maren Thomsen
President Chairwoman of the Commission
for Public, European and International Law
Ingrid Weber
Chairwoman of the Commission
for Gender Equality
