Germany

Current national procurement legislation/standards of the project-relevant fields

In Germany one common legal procurement standard exists for public procurement. This includes procurement procedures for

• IT equipment
• household appliances
• lighting equipment
• green power
• vehicles
• building components

The framework for the national legislation on public procurement is the European Directive 2004/18/EC (on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts) and the European Directive 2004/17/EC (procurement procedures of entities operating in the water, energy, transport and postal services sectors). These EC Directives were modified in 2004 after the “Interpretative” communication on 4 July 2001 of the European Commission with the member states and the Judgement of the European Court of Justice of 17 September 2002 (Case C-513/99 - Concordia Bus, Finland) and 4 December 2003 (C-448/01 – Wienelectricity, Austria). The Directives deepen the possibilities for adopting environmental considerations in the selection of technical specifications, award criteria and also contract performance clauses for public procurement.
The EC Directives only apply to public procurement contracts that will probably exceed fixed thresholds as stated in the EC Directives. All legal principles like equal treatment, transparency, as well as free movement of goods have to be respected by the procurement procedure.

Below the threshold values mentioned in the EC Directives and in the national legislation (award ordinance; § 2 VgV) the procurement procedures are laid down in the German competition law, the contracting rules for awarding public services and works and the law on budgetary funds.

Current national practice

For procurement procedures important are in principle the fourth chapter of the competition law (law against distortion of competition), the award ordinance (Vergabeverordnung VgV) and contracting rules for awarding public services and works (Verdingungsordnungen VOL/A and VOL/B).
The “Interpretative Communication” on 4 July 2001 of the European Commission is important for green public procurement in Germany in addition to German law.
Both offer public contractors many possibilities to procure environmentally friendly products. In addition, a certain pollution free production procedure (like EMAS) can be prescribed as a precondition for buying goods.
Germany has not transposed the Directives 2004/18/EC and 2004/17/EC into German law until the February 1st 2006. Because of the election in 2005, Germany was not able to fulfil these obligations. Nevertheless, the German Ministry of Economics and Technology published for each Directive separately a circular letter. This circular letters explain the procurement rules. Responsible persons of Ministries and public administrations should consider these explanations when they publish a tender that contains threshold values that are above the threshold values mentioned in the EC Directives. The process of adopting the Directive 2004/18/EC and 2004/17/EC into German law is still ongoing.

In Germany, the personal in charge inside the Ministry or Municipality prepare the documents for the tendering process. The procurement procedure does not differ in principle whether the Ministry or Municipality includes criteria for environmentally friendly goods in the tender documents or not. If an administration wants to consider environmentally criteria for goods, services and materials it has to set out the criteria very clearly in the tender documents. It’s necessary to avoid discrimination of products or goods or supplier from abroad.
Depending on the threshold values mentioned in the Directives and respectively in the German ordinances there is a difference whether the tender documents are published in a national official journal, the European official journal or if it’s necessary to publish the tender documents in a public journal at all.

Recognised barriers

After the adoption of the new EC Directives (see above) there are no legal barriers to carry out green procurement in Germany. Other barriers still existing are missing valuable information about how to do green procurement in practice. It is the experience from surveys in Germany (accomplished in 2003) that the awareness of energy- and environment purchasing reasons increased significant. Still many of the purchasers are not caring about the energy supply and other environment reasons at all. Even for the ones with high environment awareness it is often difficult to implement new purchasing strategies due to information lacks and especially institutional barriers. It is evidence that the purchasing strategy is one part of the strategy of an authority/company.

Opportunities

In 2003 the Federal Ministry of Environment, Nature Conservation and Nuclear Safety undertook a public procurement process to contract “green” electricity. The Ministry succeeded and is buying green electricity since 2004. In succession of this a pool of public buildings were build which now are supplied with green electricity.
The Federal Ministry of Environment reported about their experience with green electricity procurement on several conferences and workshops.
Green procurement is also addressed by energy and environmental instruments like the EMAS system (Eco-Management and Audit Scheme) or the Eco-Audit scheme.
Other procurement procedures of Ministries or Municipalities were successfully realised in the last years (e. g. IT equipment, lighting). Also private enterprises started to consider ecological criteria during tendering procedures e. g. for office equipment, vehicles or building components.