Example 9. Green procurement in the EU, and balancing economic objectives.

There are many potential sustainability and environmental advantages (not the least of which is reducing transport distances and fuel use) to using local suppliers and sources for government or corporate procurement. In the EU (and other places) there is often a tension between federal economic goals and state procurement and environmental objectives, related primarily in the European context to prohibitions against state aid or in discriminatory laws and practices that economically favor domestic undertakings [27] .

In addition to many direct environmental benefits, however, procurement practices are often related to more extensive national sustainability projects:

“State procurement goals may involve reducing environmental impacts from purchases, such as requiring public power generation utilities to purchase less polluting fuels. But green procurement is just as likely to involve incentivizing the growth of private green industries, such as linking public fuel purchases to specific renewable energy-producing sectors. And green procurement is equally about influencing the environmental behaviours of private market actors, such as mandating waste recycling and then building collection networks and facilities that permit or preference certain types of materials. Simply put, a state purchase of goods or services may, itself, be the environmental goal, but may, increasingly, be a means to other environmental goals [27] .”

Even in the context of increasingly important EU sustainability and environmental objectives, economic free movement protections remain of primary importance. In an example such as green procurement, incorporating a broader, more generally applicable, understanding of the support pillars of sustainability solutions frames the discussion in a new way. We can’t ignore the elements that permit the successful implementation of sustainability projects. And, likewise, economic success and development will increasingly be driven by markets for cleantech, renewable energy, environmental conservation solutions, and sustainability-related technology and products.

Actually, there’s already a convergence happening in EU law. Consider, for example, block exemptions (“GBER”) that exempt many kinds of “environmental investment aid for the promotion of energy from renewable energy sources” and “aid for environmental studies” that might otherwise be considered to violate commercial or competition law [28] . And with respect to green procurement, the GBER goes further in endorsing “the acquisition of new transport vehicles enabling undertakings active in the transport sector to go beyond Community standards for environmental protection [28] ”. As such, EU economic objectives may become more directly relevant for supporting sustainability projects if they are consistent with EU economic priorities for increasing innovation and developing new economic markets.

In other words, the sustainability paradigm, including “doing more with less” in order to position economic production and consumer demand within planetary and ecological boundaries means that many of the former divisions are breaking down between economic and sustainability opportunities. Member state legal measures, rule-making, and governance in support of green procurement may be less about the initiation of discriminatory national projects, and more about supporting or removing bottle-necks to otherwise innovative and economically forward looking sustainability practices. In this, a more integrated approach to legal balancing tests may be useful, including one like the three pillars framework that puts into focus key elements for considering EU economic objectives as part of sustainability objectives.