France

I. The Obligation of the State to Protect Human Rights

Public procurement policy [pages 25-26]

Under Article 15 of Decree 2016-360 of 25 March 2016, contracting authorities may choose to include general administrative terms and conditions in public contracts. These terms and conditions cover general rather than specific provisions (performance of services, payment, auditing of services, presentation of subcontractors, deadlines, penalties, general conditions, etc.). Article 6 of these terms covers the protection of labour and working conditions, and states that contract holders must respect the working conditions set down in the labour laws and regulations of the country in which workers are hired or, otherwise, ILO’s eight fundamental conventions where these have not been incorporated into the country’s laws and regulations.

The National Action Plan on Sustainable Public Procurement seeks to help the State, local government and hospitals make sustainable purchases as per Ordinance 2015-899 of 23 July 2015 and Decree 2016-360 of 25 March 2016 on public procurement.

This national action plan encourages those making purchases for the State or local government to introduce social and environmental clauses in public contracts. To this end, it sets specific targets for social and environmental provisions. These targets may be reflected in special requirements in the tender’s terms and conditions, specific criteria used to select suppliers’ bids and/or performance clauses supporting social and/or environmental progress that are applicable to successful tenderers. A register (of public procurement contracts worth over €90,000 with provisions) is kept by France’s Economic Observatory for Public Procurement, with the results being published annually.

The new legal framework for public procurement gives purchasers several ways of addressing social and environmental impacts. Having transposed Article 57 of Directive 2014/24/EU of 26 February 2014 on public procurement, French law now states that public contracts may not be awarded to economic operators that have been found guilty of fraud, corruption or the trafficking or exploitation of human beings (Article 45 of Ordinance 2015- 899). Article 59 of Decree 2016-360 obliges public purchasers to reject bids that do not comply with applicable laws, particularly in the social and environmental fields. Transposing Article 69 of the above mentioned directive, the decree also enables purchasers to reject tenders that are abnormally low because they do not respect applicable environmental, social and labour obligations established by French law, European law, collective agreements or by international environmental, social and labour law provisions (Article 53 of the above mentioned ordinance and Article 60 of the above mentioned decree). This also applies to subcontractors (Article 62 of the above mentioned ordinance and Article 133 of the above mentioned decree). Finally, over and above the analysis of tenders, Article 18 of Directive 2014/24 requires Member States to “take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by (…) international environmental, social and labour law provisions.”

Proposal for Action No.4

Actions Underway

• France ensures that the UN Guiding Principles and other established international texts are respected in public procurement guides, public procurement policies and training for purchasers.