1. www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham Lawyers & Parliamentary Agents Issues in EU procurement law and human rights David Hansom, Partner, London EU Roadmap to Business and Human Rights, Amsterdam, 11 May 2016

2. www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham Lawyers & Parliamentary Agents Overview of EC/EU initiatives €425 billion (3.4% of EU GDP) spent by member states on supplies, works and services EU law aims for promotion of single market and non-discrimination Regulated/influenced by Public Procurement Directives (2009/81/EC; 2014/23/EC; 2014/24/EC and 2014/25/EC); Case law ( e.g C513/99 - Concordia Bus Finland Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne ) UNGPs and National Action Plans EU guidance National guidance (often statutory)

3. www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham Lawyers & Parliamentary Agents Overview of EC/EU initiatives Directives apply to all “contracting authorities” and utilities Contracts over financial thresholds need EU wide advertisement Different rules for defence, concessions and certain services Historic focus on cost only 2014 Directives promote use of qualitative approaches More social/human rights measures at selection and evaluation Labels/certification Can look at sub-contractors Evaluation must be on best cost/quality ratio Criteria linked to “subject matter of the contract”

4. www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham Lawyers & Parliamentary Agents Overview of EC/EU initiatives UNGPs set out broad framework “Protect Respect and Remedy” “States should promote respect for human rights by business enterprises with which they conduct commercial transactions”. National Action Plans Defence procurement Codes of Conduct EU Communication on CSR – limited to environmental and little on social criteria

5. www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham Lawyers & Parliamentary Agents Challenges and opportunities Directives Tension between economic policy and human rights Much is discretionary and considerable inconsistency Need to link evaluation criteria to subject matter of contract −Difficult to make relevant to supplies contracts? Need a conviction to exclude −Subsidiaries and non state actors – difficult to enforce? Risk of legal challenge, especially if market exclusion UNGPS Non legally binding Not all states have National Action Plans

6. www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham Lawyers & Parliamentary Agents Challenges and opportunities Opportunities Europe 2020 National Action Plans supported by statutory guidance Directives do give more flexibility −Can look at social criteria at selection and award stages −Build into contract terms? −Lower value contracts less regulated −Legal challenge under Directives generally time limited −Scope to be braver!

7. www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham Lawyers & Parliamentary Agents David Hansom Partner dhansom@vwv.co.uk (+44) (0) 207 665 0808