Trading places

EU flag iStock 000009228887XSmall 146x219The European Court of Justice recently found that the Netherlands was in breach of the procurement rules in respect of award criteria. Elizabeth Gibson examines the case.

The recent case of European Commission v Kingdom of Netherlands highlights the importance of providing clear and transparent award criteria when undertaking a procurement process.

In this case, the Province of Noord-Holland issued a tender by way of the open procedure for the supply of coffee machines and associated consumables. The contract stated that it would be desirable for the coffee dispensers to utilise organic and fair-trade products where possible. The tender document referred to the Max Havellar and EKO fair-trade labels as being the minimum requirements for the award of the contract.

The European Commission brought proceedings against the Netherlands on the grounds that referring to a specific brand or trade marked label in its award criteria breached the EU Public Contracts Directive 2004/18 (the "Directive") by:

  • Creating obstacles to the equal access of tenderers to public sector contracts, particularly tenderers from those EU countries who do not use or recognise the specified types of fair-trade labels;
  • Failing to provide transparency because although the Province stated that it would accept products that met the same criteria as the specified fair-trade labels, there was no detailed account of what these criteria were or how to meet them; and
  • Using an award criterion which cannot be a valid consideration when contemplating the most economically advantageous offer, as additional credit was given to tenderers bearing the specified fair-trade labels on their products.

The European Court of Justice agreed with the Commission's submissions on all counts, ruling that technical specifications should not refer to specific fair-trade labels or trade marks unless those labels were the subject matter of the contract, and therefore in this case, such a requirement was a breach of the Directive. 



If a public authority wishes to specify the use of an fair-trade label or trade mark, it should therefore ensure that it provides tenderers with a breakdown of the fair-trade or trade mark's constituent parts and lists those detailed specifications in the tender documents itself.

Elizabeth Gibson is a partner at Ashfords. She can be contacted on 01392 333802 or by This email address is being protected from spambots. You need JavaScript enabled to view it..