Environmental clause in a public procurement

Definition and objectives of the environmental clause in public procurement

One environmental clause in a public procurement is a contractual provision that makes it possible to integrate, from the design and execution of a contract, requirements intended to reduce the ecological impact of public procurement. Concretely, it reflects the desire of the public purchaser to promote practices that respect the environment while respecting the principles of public procurement (equal treatment, transparency and freedom of access).

These clauses can serve several purposes, such as:

The reduction in greenhouse gas emissions related to transport or production;
The reduction of waste and the promotion of reuse and recycling ;
The preservation of natural resources (water, energy, raw materials);
or even the encouragement of the use of recycled or certified materials (Ecolabel type, ISO 14001, etc.).

The inclusion of an environmental clause therefore makes it possible to mobilizing public procurement as a lever for ecological transition. Indeed, public procurement represents a significant part of French GDP: orienting this expenditure towards more virtuous practices is a powerful public policy tool. Public purchasers — whether they are local authorities, public institutions or State services — can thus encourage economic operators to adopt more sustainable production methods.

Finally, the environmental clause is not limited to a simple declaration of intent. It imposes concrete obligations and verifiable, included in the contractual documents (in particular the Special Administrative Clauses workbook — CCAP), legally committing the contract holder to respect measurable environmental performance criteria throughout the life cycle of the product, service or construction site concerned.

The legal framework of the environmental clause

The integration of environmental clauses in public procurement is based on a precise legal framework, defined mainly by the Public Order Code (CCP). For several years, this code has established the principle of sustainable public procurement, structured around economic, social and environmental goals.

The article L.2111-1 of the Public Procurement Code provides that the definition of needs by the purchaser must take into account sustainable development goals, “in their economic, social and environmental dimensions”. In other words, ecological considerations must be integrated right from the market preparation phase, and not afterwards.

In addition, the article L.2152-7 of the same code expressly authorizes buyers to use environmental criteria for the award of the contract, provided that they are linked to its object. It is therefore not a question of imposing general requirements, but of obligations. directly related to the product, service or work concerned.

This logic has been reinforced by the Climate and Resilience Law of 22 August 2021, which marks a decisive step: starting from August 22, 2026, all procurement procedures must include at least one environmental consideration. This obligation aims to make it systematic to take sustainable development into account in public procurement.

The regulatory framework is complemented by CCAG (General Administrative Clauses Notebooks) applicable according to the nature of the contract (works, supplies, services, etc.). Each now contains a “general environmental clause”, which sets out the minimum obligations of licensees in terms of waste management, energy savings or compliance with environmental regulations.

Finally, the CCAP (Special Administrative Clauses Book) allows each buyer to adapt these obligations to the specificities of the market. It is in this document that precise requirements are defined (for example, the use of recycled materials, the reduction of CO₂ emissions or the environmental certification of products) as well as the control procedures and possible sanctions in the event of non-compliance.

The verifiable requirements of an effective environmental clause

The effectiveness of a environmental clause in a public procurement relies on its clear, measurable and controllable formulation. A clause that is poorly written or lacks precise indicators risks being ineffective or even illegal if it does not respect the principle of equality between candidates. To be opposable and useful, it must therefore be related to the subject of the contract, include objectively verifiable criteria, and provide for concrete monitoring procedures.

The necessary link with the object and the life cycle of the market

According to the Public Order Code, any environmental requirement must be directly linked to the subject of the contract or to its conditions of performance. This means that the obligations imposed on the holder must have a concrete relationship with the service concerned.

For example:

In a work contract, the clause may relate to the management and recovery of construction waste, the use of recycled materials or the reduction of noise pollution;
In a supplies market, it can impose eco-labelled, recyclable or low-carbon products;
In a service market, it may aim to limit travel, the use of clean vehicles or to make agents aware of eco-gestures.

The public purchaser must also consider the full lifecycle of the product or service, in accordance with the principles of sustainable development: manufacturing, transport, use, maintenance and end of life. This global approach makes it possible to avoid a partial or symbolic vision of environmental commitments.

Precise, measurable and verifiable criteria

To be legally sound, environmental clauses must be based on objective indicators and verification methods defined in advance.

Les CCAG recommend that the following criteria be preferred:

Official certifications and labels : European Ecolabel, ISO 14001, HQE, FSC or PEFC for wood, guaranteeing verifiable compliance.
Performance indicators : rate of recycled materials, level of CO₂ emissions, energy consumption of equipment, etc.
Monitoring reports and environmental reports : required periodically by the contracting authority to measure the implementation of commitments.

These items should be objectively controllable, either by the delivery of supporting documents, or by environmental audits or technical checks on site. A clause that is too vague, such as “the owner undertakes to adopt an ecological approach”, would be inapplicable and could be cancelled.

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Effective control and monitoring procedures

The credibility of environmental clauses depends on the ability of the buyer to verify the execution.

In concrete terms, this means:

The appointment of an environmental monitoring manager within the market, responsible for verifying the conformity of services;
the establishment ofcontractual performance indicators, integrated into the performance reports;
the possibility of unannounced checks Or of site visits to verify compliance with obligations;
and, in the event of a breach, the triggering of penalties provided for in the CCAP after formal notice.

The control must be proportionate but real: an environmental clause without effect is equivalent to a style clause, devoid of legal scope.

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Best practices for drafting clauses

In order to ensure the solidity and effectiveness of an environmental clause, public bodies (in particular The Green Clause, Setec, or theADEME) recommend:

formulate obligations in terms concrete results rather than resources (“the provider must achieve a recycling rate of 80%” rather than “the provider undertakes to recycle its waste”);
specify the methods of proof expected (certificates, reports, certificates);
provide for a Graduated penalty schedule, adapted to the seriousness of the breach;
and, if possible, valorize environmental performances in the final evaluation of the market, by rewarding the most virtuous incumbents.

Structured in this way, the environmental clause becomes a management and accountability tool rather than a simple formal constraint.

Penalties and penalties for non-compliance with environmental clauses

Non-compliance with a environmental clause in a public procurement incurs the responsibility of the owner and may result in contractual, administrative or criminal sanctions.

The objective is not only punitive: it is to ensure the credibility of the system and to ensure that commitments made in favor of the environment are translated into real and measurable actions.

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Contractual sanctions provided for in the CCAP

At the contractual level, environmental clauses are generally accompanied by financial penalties fixed in the Special Administrative Clauses Book (CCAP).

These sanctions are intended to encourage the holder to comply with his obligations and may take the form of:

OfDaily on-call proportionate to the duration of the breach found;
of deductions from payment until regularization;
or even, in the event of a persistent failure, termination of the contract at the fault of the holder.

These penalties should be specified as soon as the contract is awarded, in compliance with the principle of proportionality. They can only be applied if the breach is objectively observed And after formal notice that has not been acted upon.

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Administrative and criminal sanctions

Apart from the contract itself, non-compliance with environmental obligations may fall under administrative or criminal sanctions provided for by the Environmental code.

So:

The violations of environmental regulations (pollution, poor waste management, non-compliance with ICPE authorizations, damage to protected species) may result suspension of activities, withdrawals of authorizations or temporary closures ;
The criminal sanctions can go up to 3 years of imprisonment and several hundreds of thousands of euros in fines, in particular in the event of serious damage to the environment or Endangering others ;
For the legal persons, fines can be multiplied by five, and prohibitions on exercising or To exclude from public procurement can be pronounced.

La Climate and Resilience Law of 2021 has also introduced the Offence of ecocide, applicable to the most serious attacks on the environment, punishable by 10 years of imprisonment and 4.5 million euros fine.

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The fight against “greenwashing” in public procurement

The same law strengthened the fight against Greenwashing, that is, deceptive communication practices about the environmental performance of a product or service.

Public purchasers must now verify the veracity of environmental claims presented by the candidates. A false statement can be considered as a deceptive advertising Or a false information in a public procurement procedure, exposing the company to fines of up to 80% of campaign expenses or to a temporary exclusion from public procurement.

These devices reflect the will of the legislator to penalize opportunistic behavior and to guarantee the sincerity of the environmental approaches taken in the context of public procurement.

Towards sustainable public procurement: challenges and perspectives

The integration of environmental clauses in public procurement is part of a larger movement: that of sustainable public procurement. By orienting their purchases towards products, services and works with a low ecological impact, public purchasers play a major role in the energy and ecological transition of territories.

This approach is part of the national strategy of National Plan for Sustainable Procurement (PNAD), which aims to make public procurement an instrument in the fight against climate change, the preservation of resources and local development.

Les local authorities are on the front line: they can, for example, favour local businesses committed to the circular economy, encourage low-carbon services or impose bio-based materials on construction sites, i.e. materials partially or totally derived from biomass, such as wood, hemp, rapeseed, straw.

Tools exist to support them:

The platform The Green Clause (laclause verte.fr), which offers ready-to-use models of environmental clauses;
The ADEME guides on responsible purchasing;
And the European Social Fund (ESF) courses intended for public purchasers.

Starting from August 22, 2026, the consideration of at least one environmental consideration will become mandatory for all public contracts, marking a new stage in the generalization of sustainable public procurement. This evolution reflects a shared conviction: public procurement can and should become a lever of ecological transition, combining economic performance and environmental responsibility.

sourcing

Public Order Code, articles L.2111-1, L.2152-7 and R.2111-12.
Law no. 2021-1104 of 22 August 2021 known as the “Climate and Resilience Law”.
CCAG Travaux, FCS, MI, TIC — general environmental clauses.
Marche-public.fr — “The environmental clause in public procurement” (https://www.marche-public.fr).
Seban & Associates Law Firm — “How to integrate environmental clauses in public procurement”.
Setec Organization — “Sustainable public procurement: towards an obligation of environmental integration”.
The Green Clause — clause models and tools for public purchasers (https://www.laclauseverte.fr).
Fse.gouv.fr — “Responsible and sustainable procurement in public procurement”.

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