1. 1 Social Considerations in EC Public Procurement Loredana Puiu Internal Market & Services DG Directorate C: Public Procurement Policy

2. 2 EU Legal Framework EC Treaty Legislative Package (Directives 2004/17/EC and 2004/18/EC) ECJ Case Law

3. 3 EU Legal Framework Public procurement – 16.3% of EU GDP Purchasing best value for tax-payers money Value may include also social and environmental considerations

4. 4 Social Considerations May be taken into account at every stage of a public procurement procedure (in technical specifications, selection criteria, award criteria, contract execution clauses) Must always: - be linked to the subject matter of the contract - comply with the Treaties’ fundamental principles (transparency, non-discrimination …)

5. 5 Planning Procurement Actions What to buy – defining the subject matter of the contract Possibility to reserve the right to participate in public contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes (art.19 – Directive 2004/18) Conditions: - 50% rule (applicable to both sheltered workshops and sheltered employment programmes) - competition between sheltered workshops/employment programmes

6. 6 Technical Specifications Whenever possible, to take account of accessibility criteria for disabled persons/design for all (Art. 23 – Directive 2004/18) Exemples: - access to built environnement - access to information and communication technologies

7. 7 Selection Criteria/Exclusion Exemples of social considerations in the selection criteria Relevant Exclusion Criteria: - offence concerning the professional conduct convicted by judgment (Art. 45 (2) (c) – directive 2004/18) - grave professional misconduct (any means) (Art. 45 (2) (d) – directive 2004/18) - non-payment of social security contributions (Art. 45 (2) (e) – directive 2004/18)

8. 8 Award Criteria (I) Lowest price/most economically advantageous tender Social considerations may be included in the award criteria, subject to certain conditions defined by the public procurement directives and by ECJ relevant case-law (recitals 1 and 46 and art. 53.1 of the directive 2004/18)

9. 9 Award Criteria (II) Conditions: -Be linked to the subject matter of the contract -Not confer unrestricted freedom of choice on the contracting authority -Be expressely mentionned in the contract notice and in the tender documents -Comply with fundamental principles of Eu law (transparency, non-discrimination, etc)

10. 10 Award Criteria (III) The previous conditions apply more generally to all types of award criteria, and not only to social considerations Possibility to exclude abnormally low tenders (art. 55 – directive 2004/18), in several cases, including in case of non-compliance with the provisions relating to employment protection and working conditions

11. 11 Performance of the Contract Social considerations in contract performance clauses must: - be indicated in the tender documents; - be related to the performance of the contract - must comply with fundamental principles of Eu law

12. 12 Conclusions EU law offers a broad range of possibilities to include social considerations in public procurement These possibilities are not taken up to a great extent, because of lack of familiarity with what is and is not possible under the Directives The Commission’s services have consequently taken the decision to prepare a practical Guide to taking account of social considerations in public procurement