On 18 December the European Parliament’s Committee on the Internal Market and Consumer Protection (IMCO) will vote on a series of amendments to the proposed new public sector Procurement Directive. The European Council has been working in parallel to develop a compromise text, and published its latest draft on 30 November. The Committee of the Regions has also tabled a number of amendments to the proposal.

Several areas remain controversial. In particular, different approaches have been taken to incorporate the decision of the European Court of Justice in Case C-368/10 (the ‘Dutch coffee’ case) on the use of social and environmental criteria and labels. The Court held that it was acceptable to refer to aspects of the production process in contract award criteria, even where these do not form part of the material substance of the goods being purchased. This opens the way for award criteria such as fair trade working conditions, organic agriculture or use of energy-efficient production techniques. Recital 41 of the Council’s draft sets out some restrictions on this ability.

There is also on-going debate about the best approach to take to life-cycle costing and violations of social and environmental laws by tenderers. The Commission’s draft included a narrow scope for excluding operators based on breaches of tax and social security obligations, or environmental and social conventions which have been ratified by all EU Member States. A number of changes to the Innovation Partnership procedure have been tabled by both IMCO and the Council, aimed at making the procedure more flexible.

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