Making the use of by-products mandatory in the EU

Environmental protection, resource conservation and sustainability have been declared EU objectives for many years.

Examples are the Green Deal of December 2019 and the Circular Economy Action Plan of March 2020. An important instrument for this is the European Waste Framework Directive, which defines, among other things, the importance of by-products such as iron and steel slag that contribute to waste prevention. However, in order to be able to implement environmental policy projects successfully, European public procurement law must be amended to include binding requirements for public procurement geared to the circular economy. The aim is to achieve a comprehensive authorisation of secondary building materials and their conditional prioritisation in public procurement tenders. This is the conclusion of an expert legal opinion by the law firm Kopp-Assenmacher & Nusser, which was commissioned by the FEhS Institute for Building Materials Research and EUROSLAG, the European Association of Manufacturers of Iron and Steel Slag.

Kopp-Assenmacher & Nusser’s environmental law experts based in Berlin and Düsseldorf propose four amendments to the European Public Procurement Directive. A new third paragraph in Article 18 should enshrine the fundamental importance of environmental criteria in the award of public contracts. Furthermore, it is requested that “aspects of environmental protection, the circular economy and resource conservation” be made mandatory in the specification of services in a new Article 42a. This also includes low-waste production, for example of by-products. Article 67, which regulates the award criteria, must also be extended accordingly: the new paragraph 2a provides for these same environmental criteria to be taken into account when assessing the price-performance ratio. If procurement authorities do not allow products, objects and substances under Article 42a, this would have to be justified under a new paragraph of Article 84 using award notices.

Thomas Reiche, Chairman at EUROSLAG and Managing Director of the FEhS Institute: “What we criticised at national level when the Circular Economy Act was amended, is also missing at crucial points in European public procurement law: specific, legally certain formulations which oblige public sector purchasers to comprehensively authorise and conditionally prioritise by- products or secondary raw materials. Only these optimisations of the legal framework mentioned in the report guarantee that public procurement in Europe is aligned with the environmental policy guidelines: promotion of the circular economy and conservation of resources. We hope that appropriate steps to amend the public procurement law will be taken under the German EU Council Presidency”.

The building materials and fertilisers from the steel industry have already been making an important contribution to the conservation of natural resources for many decades. In Germany alone, the use of iron and steel slag has prevented the mining of over a billion tonnes of natural rock.


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