Brussels, 15/05/2012 (Agence Europe) - In the context of a public procurement contract, a contracting authority may, in principle, demand or desire that certain products to be supplied should be derived from organic agriculture or fair trade. To do this, the contracting authority must use detailed specifications rather than refer to eco-labels or specific labels. With this ruling delivered on 10 May in Case C-368/10, the EU Court of Justice rules partly in favour of the European Commission which, in action for failure to fulfil obligations filed in June 2010, denounced infringement by the Netherlands of several articles of the directive on the awarding of public contracts for works, supplies and services (2004/18/EC).
In August 2008, the province of North Holland (Netherlands) had published a contract notice for the supply and management of coffee dispensing machines. That notice referred to the private labels Max Havelaar (aimed at promoting the marketing of products from fair trade) and Eko (for products from organic farming) for the consumption of coffee and tea. The Dutch province wanted, with that notice, to make sure that the contracting authority provide “sustainable” products with the specific features of being environmentally-friendly and socially responsible. A little later, it was added in an information notice that other labels would also be accepted “in so far as the criteria are equivalent or identical”.
It was on this basis that the European Commission introduced its appeal, above all reproaching the province for having violated the directive by prescribing, in technical specifications for coffee and tea to be supplied, the Max Havelaar and Eko labels or labels based on comparable or identical criteria. The Court points out in this respect that the technical specifications can be formulated in terms of performance or functional requirements that may include environmental characteristics. The Eko label, in so far as it is based on environmental characteristics and fulfils the conditions listed in the directive, constitutes an “eco-label” within the meaning of the directive. However, by requiring that certain products to be supplied should bear a specific eco-label, rather than using the detailed specifications defined by that eco-label, the province of North Holland established a technical specification that was incompatible with the directive. As far as the Max Havelaar label is concerned, the Court holds that, according to its subject-matter, it does not constitute a technical specification but a condition for performance of the contract. It therefore rejects the Commission's complaint in that regard, without examining whether that condition was formulated in compliance with the directive.
On the subject of the grievance held against the province for having established award criterion based on the fact that the ingredients to be supplied other than tea and coffee are to bear the Eko and/or Max Havelaar labels, the Court underlines that the directive agrees that contracting authorities be authorised to choose the award criteria based on considerations of an environmental or social nature. As for the way in which award criteria are formulated, the Court points out that contracting authorities are authorised to resort to criteria underlying an eco-label in order to establish certain characteristics of a product. It does not, however, authorise making an eco-label a technical specification. Thus, by granting a certain number of points in the choice of the most economically advantageous tender to certain products bearing specific labels instead of listing the criteria underlying those labels and allowing proof that a product satisfies those criteria by all appropriate means, the province established an award criterion that was incompatible with the directive.
Finally, the Court holds that the Commission is right when it claims that the requirement on the contracting authority to “comply with criteria of sustainable purchases” and “socially responsible business” is contrary to the directive. The Court holds that, by imposing those criteria in the specifications, the province of North Holland established a minimum level of technical capacity that was not authorised. Furthermore, it notes that the principle of transparency implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents.
On this basis, it considers that the Netherlands failed to fulfil its obligations under the directive on the awarding of public contracts. (FG/transl.jl)