EU Procurement Directive covering equal treatment

Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC came into force on 17 April 2014, confirming that the principle of equal treatment applies to national procurement procedures and public contracts.

EU member states now have up to 2 years to implement them in national legislation.

By Article 18 the new Directive requires for the first time that:

Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X.

Annex X lists the international, social and environmental conventions referred to in Article 18(2):

  • ILO Convention 87 on Freedom of Association and the Protection of the Right to Organise;
  • ILO Convention 98 on the Right to Organise and Collective Bargaining;
  • ILO Convention 29 on Forced Labour;
  • ILO Convention 105 on the Abolition of Forced Labour;
  • ILO Convention 138 on Minimum Age;
  • ILO Convention 111 on Discrimination (Employment and Occupation);
  • ILO Convention 100 on Equal Remuneration;
  • ILO Convention 182 on Worst Forms of Child Labour;
  • Vienna Convention for the protection of the Ozone Layer and its Montreal Protocol on substances that deplete the Ozone Layer;
  • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention);
  • Stockholm Convention on Persistent Organic Pollutants (Stockholm POPs Convention);
  • Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (UNEP/FAO) (The PIC Convention) Rotterdam, 10 September 1998, and its 3 regional Protocols.

The Directive states:

The relevant measures should be applied in conformity with the basic principles of Union law, in particular with a view to ensuring equal treatment (para 37).

To ensure compliance with the principle of equal treatment in the award of contracts, contracting authorities should be obliged to create the necessary transparency to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied in the contract award decision (para 90).

On 16 May, the UK government stated that is it aiming to transpose (implement) these directives quickly so that the UK can benefit as soon as possible from the improved flexibilities they offer.