Il Green Public Procurement tra vincoli normativi e margini di discrezionalità

Within European Union law, public procurement has progressively assumed a strategic function in the pursuit of environmental sustainability objectives. In particular, Directive 2014/24/EU expressly provides for the integration of environmental considerations at various stages of the award procedure, allowing contracting authorities to lay down environmental requirements, to rely on criteria based on eco-labels, and to take into account environmental factors linked to production processes, as well as to consider life-cycle costing for the goods, services, and works subject to the tender. Alongside binding legislation, the European Commission has adopted over time a wide range of soft law instruments aimed at facilitating and promoting the inclusion of environmental criteria within national procurement procedures. The resulting framework depicts Green Public Procurement (GPP), within the EU legal order, as a predominantly voluntary instrument, albeit embedded in a broader context of growing attention to sustainability as a cross-cutting objective of public policies. However, an increasing number of recently adopted sector-specific legislative acts confer upon the European Commission the power to adopt delegated and implementing acts introducing further criteria designed to render procurement procedures more environmentally sustainable. Against this background, a comparison with the Italian legal system is particularly significant. In Italy, certain environmental criteria developed at European level have long acquired binding force. The national legislature has progressively transformed green public procurement from a discretionary option into a structural component of public contracting, mandating the application of Minimum Environmental Criteria (hereinafter “MEC”) across a wide range of award procedures. This legislative choice raises issues of considerable systemic relevance, particularly with regard to the relationship between the mandatory nature of the MEC and the administrative discretion of contracting authorities. On these premises, the present study first examines the supranational legal framework, focusing on the relevant provisions of Directive 2014/24/EU and on the additional instruments of secondary legislation and soft law that contribute to shaping the European model of green procurement. It then turns to the Italian legal order, highlighting the shift from a predominantly voluntary European approach to a national model characterized by the mandatory application of the MEC. In this regard, the paper reconstructs the legislative evolution of the MEC, clarifying the scope of the obligation introduced by Article 57(2) of Legislative Decree No. 36/2023. Furthermore, it explores the role of administrative discretion as a tool for enhancing those criteria and steering contracting authorities’ choices towards higher levels of sustainability. It also addresses the complex balancing between environmental interests and other public objectives, emphasizing the need for carefully reasoned and proportionate decisions. Finally, the paper outlines de iure condendo perspectives aimed at ensuring a more coherent and systematic orientation of administrative discretion towards the effective pursuit of sustainability objectives.