Miljökrav i offentlig upphandling - En analys av rättsliga och praktiska hinder

Sammanfattning: Today, green public procurement is considered an important part of a positive environmental and social development. This is partly because of the large economic importance of public procurement and partly because environmental considerations constitute an aspect of public procurement with increased significance. By imposing environmental requirements, contracting authorities can affect the supply of sustainable goods and services, thus push the environmental technical development forward. The possibilities to take environmental aspects and requirements into consideration have undergone an extensive development. At the time of the adoption of Directive 2014/24/EU and the new Swedish Public Procurement Act, these possibilities were further expanded and clarified. In the light of this development, the purpose of this thesis is to examine the possibilities and obligations of contracting authorities to take environmental considerations into account in accordance with the law, by imposing environmental requirements. Part of this thesis has examined how contracting authorities handle environmental requirements in practice. It has been questioned whether current legislation enables efficient environmental requirements or if a change in legislation is needed in order to make environmental work more efficient. The thesis has shown that current legislation provides several possibilities to take environmental considerations into account and to impose environmental requirements in public procurement. However, the thesis has also shown that there are factors that limit and risk to limit environmental requirements. From a practical perspective, three key obstacles have been identified: lack of financial resources, lack of knowledge and lack of guidance. From a legal point of view, it has been found that the fundamental principles of procurement, and the construction of the general provision on environmental considerations of the Swedish Public Procurement Act, the “should-rule” (sv. bör-regeln), limit the nature and scope of environmental requirements. However, a renewed interpretation of the law on public procurement, could imply an increased scope for environmental requirements. Furthermore, the construction of the should-rule has been found unsatisfactory from the objectives intended to be achieved through green public procurement. In conclusion, a strict regulation of contracting authorities' obligations to take environmental considerations into account, may therefore be considered. A must-rule will better match today’s expectations on contracting authorities to apply environmental considerations.