Strengthening the consideration of environmental and social aspects in French public procurement law

In France, ESG criteria (environmental, social and governance) have been reinforced in public procurement law by the Law n°2021-1104 dated 22 August 2021, known as the "climate and resilience law". It introduces a new article L. 3-1 into the French Procurement Code (hereinafter "FPC"), under the terms of which "public procurement participates in achieving the objectives of sustainable development, in their economic, social and environmental dimensions, under the conditions defined in this code" (art. 35 of the law dated 22 August 2021). Its application decree n°2022-767 dated 2 May 2022 was published in the “Journal Officiel” dated 3 May 2022. 

First, this decree amends article R. 2152-7 of the FPC to consider the environmental criterion in public procurement contracts and concession contracts’ awarding process. Under French law, procurement and concession contracts may be awarded based on a sole price criterion for certain types of goods. From 21 August 2026, these contracts will be awarded by public purchasers based on different criteria: 

• Either a price criterion considering the environmental aspects of the tender submitted;
• Or multiple criteria, which may be either the price, the cost, or other criteria. Each criterion shall consider and entail the evaluation of the environmental aspects of the offer.

Although references to the notion of “environmental aspects” can be found in Annex 9 of the FPC (this annex mentions the compliance of the products with environmental standards and eco-management scheme), but this notion is not really defined.

Few doubts remain regarding the fact that the notion of environmental aspects is too vague and should be specified by regulations or guidelines from the French Authority in the coming years. It will be of assistance for bidders wishing to structure their offer and public purchasers wishing to assess properly such offers considering the “environmental features”.

Decree also specifies the date of entry into force of several provisions introduced by article 35 of the climate and resilience law:

• Articles L. 2141-7-1 (public contracts) and L. 3123-7-1 (concessions) of the FPC, amended by article 35 of the law and which now provide for the possibility for the purchaser to exclude a tenderer who, when subject by article L. 225-102-4 of the French Commercial Code to the obligation to draw up a due diligence plan, does not comply with this obligation, come into force immediately, i.e., on May 4th, 2022.
• As regards articles L. 2112-2-1 (public contracts) and L. 3114-2-1 (concessions) of the FPC, according to which contracts that are awarded in a formalized procedure must include performance conditions that take into account considerations relating to the social field or employment, the decree does not specify their date of entry into force, but provides that they will be applicable as on 22 August, 2026, unless otherwise stipulated by regulation, depending on the degree of maturity of the various sectors of activity and purchasing segments concerned.

In addition, the decree lowers, as of January 1^st, 2023, from 100 to 50 millions euros the amount of annual purchases triggering the obligation for buyers to draw up a “SPASER” (scheme for the promotion of socially and environmentally responsible purchasing) in accordance with Article L. 2111-3 of the PPC, which was also amended by Article 35 of the law.

Finally, the decree provides that, for public contracts of more than 40,000 euros, purchasers will have to file the essential data of the contracts on the national open data portal "data.gouv" so that the OECP (Economic Observatory of Public Procurement) can perform a census of public contracts. The scope of the data is to be specified by an administrative order of the Minister of the Economy, which will come into force no later than January 1^st 2024.

For the decree, please see here.

For the Climate and Resilience Law, please see here.