This paper aims to analyse the accommodation of sustainability considerations within the public procurement (PP) chapters of the Free Trade Agreements (FTAs) signed by European Union (EU). The paper will investigate whether FTAs can be used as a tool to further sustainability while advancing its main objective of opening public procurement (PP) markets among its Parties.

This research will consider whether sustainability aspects can co-exist with the ‘primary’ FTAs objective – non-discrimination. To do so, this paper will analyse the instruments linked to the operation of the FTAs, which will allow the examination of the FTAs’ international role in pursuing sustainability-related objectives.

Considering that the main purpose behind the creation of the FTAs’ PP chapters was the elimination of barriers to PP between its Parties, this research will analyse the instruments through which the FTAs impact the domestic norms regulating the PP, also considering the sustainability aspects in PP. This will provide an example of how States implement measures of national law deriving from legally binding international acts.

This paper will adopt a mixed legal-historical approach, which will allow the analysis of the interconnection between the FTAs’ PP chapters and national PP systems. This will provide an analytic tool for considering the evolution of their rules on technical specifications, selection criteria and award criteria as stages of PP where sustainability criteria can be considered.

The application of a narrow understanding of sustainability (limited to social and environmental objectives and small and medium sized enterprises (SMEs) integration) will be used to discuss the effect of sustainability on FTAs regulation. This limitation will allow the reader to keep track of its evolving significance.

Our planet is facing significant challenges, inter alia climate change, environmental decline, and social injustice. The United Nations (UN) have defined “Sustainable Development Goals” (SDG) to address most of these challenges. The EU has contributed shaping the SDGs and is committed to implement them into EU policies. This includes EU trade policy through recent Free Trade Agreements (FTAs), mainly but not exclusively through their sustainability chapters. Thus, the EU has the ambition to be a global actor in implementing the SDGs through its FTAs. The arsenal of instruments to implement the SDGs is limited. Internally, one of these instruments is public procurement law and policy. Sustainability considerations have been inserted into the detailed set of EU Directives and policies governing procurement procedures in the 27 Member States, especially into the rules on specifying the good or service to be procured and the evaluation criteria for tenders. Recent FTAs of the EU also have procurement chapters. This contribution investigates these FTA public procurement chapters with regards to the extent they are promoting sustainability. After defining sustainability and explaining briefly how the EU implements sustainability in public procurement law and policy internally, the analysis will identify the relevant provisions in recent FTAs and draft FTAs with a special emphasis on CETA. The discussion of CETA will briefly include its transposition in Canada to determine whether there has been a normative impact. The analysis aims to increase our understanding of the emerging role of the EU as a global actor by using its FTAs beyond their sustainability chapters as instruments to further the SDGs. While recent developments show some promise, the discussion will show that this role is currently still limited.

As part of the European Green Deal, the EU launched the Emissions Trading System (ETS), a carbon market imposing limited allowances for greenhouse gas emissions and permitting the trade of those allowances in EU Member States. Although ‘greening’ EU domestic products, this system may shift the consumption to cheaper foreign carbon imports, also known as ‘carbon leakage’. As a preventive measure, the EU adopted 2023 the Carbon Border Adjustment Mechanism (CBAM), which requires foreign companies to report the carbon footprint of goods they import into the EU and pay for a certification when no carbon price has been paid during the production of those goods. Thus, the CBAM encourages the EU’s trading partners to introduce carbon pricing and mechanisms similar to the EU’s ETS in their territories.

Free Trade Agreements (FTAs) provide an opportunity to incentivise third countries’ further change towards producing green goods and services. They can constitute the third and last step to the ETS and the CBAM. However, a new approach to the EU’s FTAs is needed beyond the traditional academic debates on whether FTAs should include ‘soft’ or sanction-based commitments in their Trade and Sustainable Development Chapters. We hypothesise that neither option is more suitable than introducing references to climate change in FTAs’ substantive obligations and adjusting those obligations to each of the EU’s bilateral relations.

The European Green Deal is closely interlinked to EU trade policy. Not only is the import of certain goods such as critical raw materials necessary to accomplish the green transformation of EU production systems, but environmental leakage through the relocation of companies and the environmental impacts of EU consumption outside of the EU also represent two major risks for the environmental success of the Green Deal. The interrelations between the EU Green Deal and the 2021 EU trade strategy have been discussed with a focus on the new unilateral trade measure such as the Carbon Border Adjustment mechanism.

This study assesses the coherence between recent bilateral trade agreements and the European Green Deal. How coherent is the EU bilateral trade policy with the objectives of the European Green Deal? Our conceptual framework builds on the notions of coherence of policy sphere, consistency in law and policy coherence for sustainable development. Specifically, we analyze policy coherence on three distinct levels: problem definition, policy objectives, and policy instruments. To analyze this, we focus on the evolution of EU trade strategies, environmental impact assessments and specific chapters in EU trade agreements with New Zealand, and Chile, such as Sustainable Food Systems, as well as specific environmental goods and environmental harmful goods.

Our analysis indicates that environmental objectives are increasingly integrated in EU trade strategies and EU trade instruments, but that coherence remains mostly weak and incoherencies persist. The goals the EU sets for itself in trade strategies and bilateral trade agreements do not replicate the ambition of the EGD. Policy instruments as environmental impact assessments are more and more frequently conducted before, during, and after negotiations, but it remains unclear how their insights are used. Design elements such as chapters on Trade and Sustainable Development or Sustainable Food Systems require mainly adaptation of partner countries. EU trade agreement furthermore do not seem to fully realize the potential of environmental goods, and do not address the sensitive topic of environmental impactful goods.

The study contributes to the longstanding debate about the relation of trade politics and the objective of protecting environmental sustainability, and provides comparative insights into the realm of international environment-trade-nexus. Identified areas of coherence and incoherence inform further research on how to better align EU bilateral trade policy with the European Green Deal.

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