Reuse clauses in public procurement: what local authorities can require

A local authority launching a contract for institutional catering, cleaning or logistics can require its contractors to reuse packaging. Yet the legal framework that allows it, and sometimes requires it, is still poorly understood, even by public buyers themselves. Below is what the law allows, what it already requires, and where the authority's discretion lies.

Where this option comes from

Within a few years, two laws reshaped the relationship between public procurement and the environment.

The loi AGEC (French anti-waste law for a circular economy) of February 10, 2020 has required local authorities, since January 1, 2021, to reduce their use of single-use plastics and to favor reused goods, by including appropriate clauses and criteria in their specifications. The wording sets an obligation of means rather than of results: “whenever possible”.

The loi Climat et Résilience (French Climate and Resilience Act) of August 22, 2021 goes further: it turns environmental considerations, in both the award and the performance of public contracts, into an obligation. This is no longer left to the buyer's discretion: it is a structural requirement of the Code de la commande publique (French Public Procurement Code).

What the legal framework allows

Clause versus criterion

Public procurement vocabulary distinguishes two tools that are often confused:

• an environmental clause is a requirement written into the tender documents (dossier de consultation des entreprises, or DCE), which creates a contractual obligation for the successful bidder. It must be complied with, or contractual penalties apply.
• an environmental criterion is an expectation set out in the tender rules (règlement de la consultation), used to compare bids against each other, with no mandatory character for bidders.

A local authority that genuinely wants to require packaging reuse during contract performance must therefore use a clause, not just a scoring criterion. A criterion rewards a bid that offers reuse; a clause requires it.

A contractual framework that explicitly allows it

The cahiers des clauses administratives générales (CCAG, the standard general terms that govern the performance of public contracts by default) allow the specific documents of a contract to explicitly target actions in favor of reuse, reutilization, reconditioning, the use of recycled materials, and recycling. The legal basis for a packaging reuse clause therefore already exists in general public procurement law, with no need for a packaging-specific text.

Decree No. 2024-134: a purchasing obligation, not just an option

Decree No. 2024-134 of February 21, 2024, published in the Journal officiel (French Official Journal) of February 23, 2024, and adopted to implement Article 58 of the loi AGEC, goes further than a simple authorization: it requires public buyers to meet a minimum share of purchases of goods that are reused, reutilized, or contain recycled materials, by product category. This decree, in force since July 1, 2024, repeals and replaces an earlier decree of March 9, 2021.

The product categories covered, and the minimum share required for each, are set out in the decree's annex, then specified in detail by a joint order (arrêté) of the ministers responsible for the economy and the environment.

This particular text, however, calls for special caution. The categories identified in available analyses cover families such as textiles, IT and telephony equipment, reprographics, paper, and transport vehicles and their spare parts. None of the sources consulted for this analysis explicitly confirms that packaging appears as a dedicated category in the decree's annex. Before telling a public buyer that a purchasing obligation specifically covering reused packaging stems from this text, check the annex of Decree No. 2024-134 and the order that details it, directly on Légifrance (the official French legal database).

Who is concerned, and for which contracts

The framework applies to public bodies in the broad sense: local authorities, public institutions, and more generally any buyer subject to the Code de la commande publique. The contracts most naturally suited to a packaging reuse clause are those for institutional catering, events, logistics and the supply of packaged products, which are precisely the segments where a reusable packaging SME or mid-sized company is positioned to bid.

What this means operationally for a supplier

To be legally sound, a reuse clause must meet three principles: be linked to the subject matter of the contract or to its performance conditions, not discriminate between bidders, and leave a real possibility for several operators, not just one, to perform it. A well-advised public buyer can therefore require reuse, provided the clause is worded without locking competition around a single solution.

On the bidding side, clauses and criteria are handled differently. If the DCE sets a mandatory reuse clause, meeting it is a condition for the bid to be admissible. If reuse appears only as a scoring criterion, a bid without reuse remains admissible, but less competitive in the final ranking.

One substantive argument remains for convincing a public buyer who is still hesitant: since the 2021 Climate and Resilience Act, taking the environment into account in public procurement is a structural obligation, not an option at the buyer's discretion.

Key dates

This article is for information only and does not replace legal advice. Check the exact scope of the product categories covered by Decree No. 2024-134, particularly for packaging, in the decree's annex and the order that details it, before drafting any clause or responding to a tender.

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