EU Court of Justice Finds Certain Dutch Eco-Contracting Requirements Unlawful

The Court of Justice of the European Union (EU) has agreed, in part, with the European Commission’s challenge to requirements imposed by the Dutch government on contractors providing organic and fair trade products in its automatic coffee machines. EC v. Kingdom of the Netherlands, No. C-368/10 (E.C.J., decided May 10, 2012). According to the Court, government requirements for the award of contracts may be based on environmental or social criteria, but the criteria must be clear and the government must allow proof “that a product satisfies those criteria by all appropriate means.” The Court also held that “all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents.” To the extent that the Dutch requirements fell short of these standards, the Court found that the government failed to fulfill its obligations under the award of public contracts directive.