Sustainability Clauses in 'Public' Contracts

In: European review of contract law: ERCL, Band 20, Heft 1, S. 105-127

Abstract

Abstract
Under the Public Sector Directive, public buyers are allowed to include sustainability considerations in their purchasing decisions within the limits of the principles of procurement. This framework allows criteria linked to the subject matter to be contractualised. Though different criteria are widely employed in public procurement within the umbrella of sustainable public procurement, the literature mostly focuses on stages leading to the contract award instead of considering the public contract as a document incorporating contractual obligations. On the other side, green and social commitments in (business) contracts are considerations that are not necessarily linked to the subject matter. Though their value is acknowledged, their enforcement proves to be challenging due to the restraints of contract law. By using European contract law as a reference point, this paper compares sustainability clauses in business contracts to sustainability clauses in public contracts – to determine whether the EU regime applicable to public contracts offers solutions to these hurdles.