The document summarizes key aspects of a new European directive on promoting human rights compliance through public procurement. It discusses articles 18(2), 67(2), 67(3), and 67(4) of the directive. Article 18(2) creates a new duty for member states to take effective measures to ensure economic operators comply with human rights obligations. Articles 67(2) and 67(3) clarify that award criteria can include social criteria and the link to the subject matter of the contract. Article 67(4) establishes a new duty for contracting authorities to effectively verify information provided by tenderers to assess how proposals meet award criteria. However, questions remain around how member states and authorities will operationalize these duties in practice.

1. PROMOTING HUMAN RIGHTS COMPLIANCE THROUGH PUBLIC
PROCUREMENT (REGULATION): THE NEW EUROPEAN
DIRECTIVE
M. VOGEL
VU UNIVERSITY AMSTERDAM

2. 2
ARTICLE 18(2)
‘Member States shall take appropriate measures to ensure
that in the performance of public contracts economic operators
will comply with applicable obligations in the fields of
environmental, social and labour law (...) ‘

3. 3
Subcontractor complies with contractual obligation
human rights compliance
Main Contractor complies with criterion
human rights compliance + contractual obligation for
subcontractor
Contracting Authority complies with obligations
includes strict requirement + check + remedy
Member State takes measures
* creates extensive obligation for CA
* provides check + remedy
Individual choice to
comply
Individual choice to
comply
18(2) ‘Influence path’ member state  economic operators through pp
Individual choice to
comply
Duty to ensure compliance
(take measures that
garantee the desired effect)
desired effect:
compliance

4. Subcontractor
Complies with human rights
Main Contractor
Complies with criterion
(complies with human rights + obligation for subcontractor)
Contracting Authority
Complies with obligations
Member State
* Creates extensive obligations for CA
* check + remedy
strict requirement/ softer
criterion?
Duty to ensure that the
chosen measures can be
expected to be (the most?)
effective
+ checks + remedy?

5. 5
ARTICLE 67(2) : CONTENT OF AWARD CRITERIA
67(2) What kind of content may award criteria comprise?
• Fair trade criteria?
‘ The most economically advantageous tender (…) may include a
price-quality ratio, which shall be assessed on the basis of criteria,
including qualitative, environmental and/or social aspects (…).
Such criteria may comprise:
a. quality, including (…) social (…) characteristics and trading and
its conditions’

6. 6
ARTICLE 67(3): LINK TO THE SUBJECT MATTER OF THE CONTRACT
67(3) When do award criteria have a sufficient link to the subject
matter of the contract?
‘ … where they relate to the works, supplies or services to be
provided under that contract in any respect and at any stage of their
life cycle,
including factors involved in:
a.the specific process of production, provision or trading (…)or
b.a specific process for another stage of their life cycle,
even where such factors do not form part of their material
substance’

7. 7
WHAT DO ARTICLE 67(2) AND 67(3) BRING US?
 67(2) Award criteria may comprise social criteria and trading
conditions
 67(3) Much clearer and limited definition of the link to the subject
matter of the contract requirement
BUT:
 Applicability of this definition in the context of other provisions
(e.g. Art. 42, 43 and 70) is unclear

8. 8
ARTICLE 67(4): VERIFICATION OF AWARD CRITERIA
‘Award criteria shall (…) be accompanied by specifications that allow the
information provided by the tenderers to be effectively verified in order to
assess how well the tenders meet the award criteria.
In case of doubt, contracting authorities shall verify effectively the accuracy
of the information and proof provided by the tenderers.’’
• When do specifications allow effective verification?
• When should verification be considered effective?
• On what grounds may (shall) a contracting authority decide whether or
not to verify (mere subjective criterion)?

9. 9
CONCLUSION: PROGRESS OR NOT?
Article 18 (2) Article 67 (2), (3) and (4)
• New duty to take effective measures
• Clear focus on effectivity
• Award criteria may comprise social
criteria and trading conditions
• Limited definition of link to the subject-
matter of the contract:
- effect in material substance ≠ required
- production process, trade conditions
• New duty to effectively verify
• Content of the duty unclear
- How to combine with pursuit of
other objectives?
• General applicability of definition 67(3)?
• Content of the duty to verify unclear
- How to operationalize within the
boundaries of the general principles?

10. M. Vogel
m.vogel@vu.nl
VU University Amsterdam