International Construction Law Review

Chantal-Aimée Doerries KC; Professor Douglas Jones AO

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GREEN CONSTRUCTION PROCUREMENT—POTENTIAL CONFLICTS WITH EU LAW AND FREEDOM OF MOVEMENT

DEE DAVENPORT

MSc Construction Law and Dispute Resolution Dissertations Tutor, University of Central Lancashire

INTRODUCTION

Article 21 of the Treaty of the European Community (EC) successfully encapsulates the nature of the guiding principles which form the bedrock of EC policy and its strategic objectives. It throws into the melting pot of sustainability the ingredients of economic performance, social cohesion, competitive excellence, gender equality and environmental protection, willing them to emerge as a harmonious whole. Its aims are clearly all desirable targets for any modern dynamic nation state but how is each objective to be successfully achieved without the intrusion of conflicting interests inherent in the remaining ones? This question is especially significant when the role of environmental protection is considered in relation to the internal market and to the principles of non-discrimination and the free movement of goods, persons and services.2 Article 6 reinforces the dilemma, expressly stating the requirement for environmental protection to be integrated into all the common policies and activities which relate to a competitive and successful market. One of the areas upon which this has a resounding impact is that of the procurement of public works, services and supplies which are specifically related to construction.

In the EU the process of greening procurement or the purchasing of public works and services is progressing in three ways.3 First, at national and local level, there is evidence of a positive effort to address the challenges of sustainability and pursue procurement strategies which promote the adoption of whole-life green purchasing but always set in the context of a competitive internal market.4 This has been achieved partly through the

1 All Treaty Article numbers relate to the post Amsterdam amended Treaty of the European Community (EC) unless otherwise stated.

2 Treaty of the European Community, Art 3(c).

3 Green Procurement—Potential Conflicts in the Construction and Utilities Sector , LLM dissertation, Lancashire Law School (2002), Chap 2.

4 Ibid . pp. 66–67.

[2004

The International Construction Law Review

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