Both presented as the major environmental protection law of the five-year term and as the result of an innovative participatory democracy process – the Citizens’ Climate Convention – thelaw n°2021-1104 of August 22, 2021 on the fight against climate change and strengthening resilience to its effects was published in the official journal on August 24. The text covers a wide spectrum of activities and is notably intended to “green the economy”, as specified in the title of the first chapter of its third title.

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Naturally, public procurement is the subject of several important measures (all provided for in article 35 of the law) which confirm it as a lever making it possible to achieve multiple horizontal objectives (protection of the environment, inclusion of the public in difficulty…).

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Overview of the main measures (which do notwill come into force only on a date subsequently fixed by decree and no later than August 22, 2026) and their practical consequences

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1 – A newcomer to the preliminary title 

 

Among the generalities, the text adds aarticle L.3-1 in the preliminary title of the Code written in these terms: “Public procurement contributes to achieving sustainable development objectives, in their economic, social and environmental dimensions, under the conditions defined in this code.". Obviously, the binding scope of such a provision isextremely limited or even zero and is more akin to a begging of principles.

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2 – Technical specifications

 

The text supplements articles L.2111-2 and L.3111-2 of the Code by imposing thetaking into account sustainable development objectives in technical specifications in all thepublic markets and allconcessions at theexception ofdefense or security concessions. The buyer must therefore ensure, when defining their needs, to integrate such objectives, either by reference totechnical standards themselves including such objectives, or in terms ofperformance and functional requirements including such objectives. Not very precise, the text leaves aroom for maneuver for buyers in determining the intensity of the “green” character of its technical specifications.

 

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3 – Applications

 

The “Climate and Resilience” law also includes anew reason for exclusion at the discretion of the buyer or licensing authorityat the application stage, concerning companies which, by being subject to it due to the provisions of article L.225-102-4 of the Commercial Code,have not established a vigilance plan for the year preceding the consultation with a view to awarding the contract. The text specifies, in a somewhat curious wording, that “such consideration cannot be likely to restrict competition or make the performance of the service technically or economically difficult”. This addition, which is quite obscure in this location, is likely to have a deterrent effect for certain buyers.

 

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4 – Offers

 

In markets as in concessions (except defense or security concessions), the buyer or the granting authority will be required to retainat least a selection criterion for the most economically advantageous offertaking into account the “environmental characteristics of the offer”. This new provision of articles L.2152-7 and L.3124-5 calls for several comments:

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- For public contracts, it enters head-on intocontradiction with the possibility of only retaining the price criterion for the purchase of standardized supplies or services, the price criterion cannot, by its nature, contain any environmental characteristics. Therefore, buyers wishing to opt for a single criterion will have tochoose that of the overall cost of the offer by integrating environmental considerations.

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- Agreat freedom is left to buyers and granting authorities who will be able to “green” the criterion(s) of their choice, which could, in practice, make the measure ineffective.

 

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5 – Conditions of execution

 

•Environmental Considerations : contracts and concessions (always excluding defense or security concessions) must, in accordance with the provisions of articles L.2112-2 and L.3114-2 of the Code,take environmental considerations into account in their conditions of execution, subject to remaining linked to the purpose of the services. These new provisions echo one of the innovations of the new CCAG, namely the introduction of a “general environmental clause » (art. 20.2 of the CCAG works).

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•Social considerations : the obligation totaking into account considerations in the social or employment field is only provided for contracts and concessions whose value exceeds the European award thresholds according to a formalized procedure. It is therefore only an option for contracts with an estimated amount below these thresholds, as specified in the new articles L.2112-2-1 and L.3114-2-1. Furthermore, including for formalized markets and concessions, the text provides for a certain number ofexemptions, in particular linked to the economic or technical impossibility of taking such considerations into account. Here again, these provisions resonate with the “social integration clause » of the new CCAG (art. 20.1 of the CCAG works).

 

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6 – Other provisions

 

Also note:

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• the obligation to integrate into thedealer annual report the measures taken to guarantee environmental protection and social inclusion.

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•strengthening public purchasing promotion schemessocially Andecologically responsible.