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EYIEL Monographs
Studies in European and International Economic Law 9
Rika Koch
Green Public
Procurement
under WTO
Law
Experience of the EU and Prospects
for Switzerland
European Yearbook of International
Economic Law
EYIEL Monographs - Studies in European

and International Economic Law
Volume 9
Series Editors
Marc Bungenberg, Saarbrücken, Germany
Christoph Herrmann, Passau, Germany
Markus Krajewski, Erlangen, Germany
Jörg Philipp Terhechte, Lüneburg, Germany
Andreas R. Ziegler, Lausanne, Switzerland
EYIEL Monographs is a subseries of the European Yearbook of International
Economic Law (EYIEL). It contains scholarly works in the fields of European and
international economic law, in particular WTO law, international investment law,
international monetary law, law of regional economic integration, external trade law
of the EU and EU internal market law. The series does not include edited volumes.
EYIEL Monographs are peer-reviewed by the series editors and external reviewers.
More information about this subseries at http://www.springer.com/series/15744

Rika Koch
Green Public Procurement

under WTO Law
Experience of the EU and Prospects
for Switzerland
Rika Koch
Institute of Law
University of Zurich
Zurich, Switzerland
Dissertation of the Law Faculty of the University of Zurich for the degree of a Doctorate of
Jurisprudence
Presented by Rika Koch
Submitted on 29 March 2019 to:
Prof. Dr. iur. Rolf H. Weber and Prof. Dr. iur. Matthias Oesch.
ISSN 2364-8392 ISSN 2364-8406 (electronic)

European Yearbook of International Economic Law
ISSN 2524-6658 ISSN 2524-6666 (electronic)
EYIEL Monographs - Studies in European and International Economic Law
ISBN 978-3-030-48213-8 ISBN 978-3-030-48214-5 (eBook)
https://doi.org/10.1007/978-3-030-48214-5
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature
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Acknowledgment
This book was developed as a PhD thesis during my time as a teaching and research
assistant at the University of Zurich and as a visiting researcher at the University of
Nottingham.
I am thankful to my supervisor, Professor Rolf H. Weber who has accompanied
this work from the very beginning. I profited immensely from his academic guid-
ance and his vast expertise in a very broad field of law. I also owe my deepest grati-
tude to my co-supervisor Professor Matthias Oesch, whose encouragement and
advice on a professional and personal level have been a huge support and an inspir-
ing example to me.
My research stay at the University of Nottingham was enabled by the Swiss
National Science Foundation. I am grateful for the opportunity to study interna-
tional law in this international environment and to benefit from the network and
expertise of the Public Procurement Research Group (PPRG). I also wish to express
my gratitude to Professor Sue Arrowsmith for her leadership as a pioneer in public
procurement research and for bringing together students from all over the world. I
further wish to thank Dr. Aris Georgopoulos for his support and for enabling my stay.
On a personal note, I wish to thank my family. I am grateful beyond words to my
parents, Keiko and Remo, for their unconditional support. I also thank my brother
Nico and my sister Nina for being there for me and for making life more fun.
Moreover, grazia fitg to my grandmother Elisabeth: I hope this thesis convinces you
that law is not only about divorcing people.
I am especially thankful, of course, to David, who had to endure (and sometimes
even engage in) lengthy and non-romantic discussions about trade law and public
procurement and who has given me the emotional support and stability to finish this
thesis. And, finally, thanks to my sons Jun and Kenji whose arrival has provided me
with the deadlines to finish this thesis and publish it as a book. You are the sunshine
of my life (and the apple of my eye) and you put everything into perspective.
v
Contents
1 Introduction�� 1
1.1 Research Subject�� 1
1.2 Relevance and Research Goals �� 2
1.3 Research Questions�� 3
1.3.1 WTO �� 4
1.3.2 EU �� 4
1.3.3 Switzerland �� 5
1.4 Methods�� 5
1.4.1 Rules of Treaty Interpretation �� 5
1.4.2 Illustrative Comparison�� 7
1.4.3 Expert Interviews�� 8
1.5 Limitations�� 8
1.6 Outline�� 9
Part I Conceptual Framework

2 Public Procurement Regulation�� 13
2.1 Terminology�� 13
2.2 Phases�� 14
2.3 Objectives and Principles�� 14
2.4 Relevance of Regulation �� 15
2.5 International Public Procurement �� 16
2.6 Horizontal Policies�� 17
2.7 Summary and Findings �� 18
3 Green Public Procurement (GPP)�� 21
3.1 Terminology�� 21
3.1.1 Working Definition �� 21
3.1.2 Life-Cycle Approach: Stages of GPP �� 22
3.1.3 Regulatory Level: Law or Administrative Practice�� 23
3.2 Objective: Environmental Protection�� 23
3.3 Relevance�� 24
vii
viii Contents
3.3.1 Ecological Relevance�� 24

3.3.2 Economic Relevance�� 25
3.3.3 Relevance for Good Governance�� 25
3.3.4 Relevance for Innovation�� 26
3.4 GPP as an Environmental Policy Measure�� 26
3.4.1 Relevance of Environmental Policies �� 26
3.4.2 Command-and-Control vs. Market-Based Policies�� 27
3.4.3 Classification of GPP�� 28
3.5 Areas of Application �� 29
3.5.1 Construction Sector�� 29
3.5.2 Food Sector �� 30
3.5.3 Transportation Sector�� 30
3.5.4 Electricity Sector�� 31
3.5.5 Office Equipment and IT Sector �� 31
3.6 Instruments of Implementation �� 32
3.6.1 Technical Specifications�� 32
3.6.2 Award/Evaluation Criteria�� 33
3.6.3 Qualification/Selection Criteria�� 34
3.6.4 Exclusion Criteria �� 34
3.6.5 Contract Performance Conditions�� 35
Part II World Trade Organization

4 GPP and International Trade Regulation�� 39
4.1 Climate Change Mitigation in the United Nations �� 40
4.2 Environmental Concerns in the GATT/WTO �� 42
4.2.1 Legislatory Level: Provisions on Environmental
Protection�� 42
4.2.2 Jurisprudence: Trade and Environment Disputes�� 44
4.2.3 Policy Level: Institutional Developments �� 46
4.3 Other Regulatory Approaches of GPP�� 47
4.3.1 United Nations Commission on International Trade Law�� 47
4.3.2 World Bank �� 48
4.3.2.1 Relevance for International Procurement�� 48
4.3.2.2 GPP�� 49
4.3.2.2.1 Guidelines and Technical
Assistance�� 49
4.3.2.2.2 Instruments of Implementation�� 50
5 Relevance of the Multilateral WTO Agreements�� 53
5.1 Non-Discrimination Principle in WTO Law�� 53
5.2 GATT and the GATS: Derogation-Clauses�� 55
5.2.1 Ratio Legis of the Derogation �� 55
Contents ix
5.2.2 Scope of Article III:8 GATT �� 56

5.2.2.1 Exemption of the MFN Obligation?�� 56
5.2.2.2 Definition Established in Canada – Renewable
Energy�� 57
5.2.2.2.1 Testing Scheme�� 57
5.2.2.2.2 Critical Assessment�� 58
5.3 Relevance of Other Multilateral Agreements�� 59
5.3.1 ASCM: GPP as a Subsidy?�� 59
5.3.2 TBT: GPP as a Technical Barrier to Trade?�� 61
6 Government Procurement Agreement �� 65
6.1 Evolution�� 65
6.2 Modus Operandi �� 67
6.2.1 Plurilateral Agreement�� 67
6.2.2 Enforcement Mechanisms�� 68
6.2.3 Scope: “Covered Procurement”�� 70
6.3 Non-Discrimination Principle�� 71
6.3.1 General Non-Discrimination Provision (Article IV:1)�� 72
6.3.2 Article IV:2: “FDI-Provision”�� 73
6.3.3 Other Non-Discrimination Provisions�� 74
6.4 Technical Specifications�� 74
6.4.1 Scope: Legal Analysis of the Wording�� 75
6.4.1.1 Explicit Reference�� 75
6.4.1.2 Definition of Technical Specification�� 76
6.4.1.3 Conservation of Natural Resources/Protection
of the Environment�� 77
6.4.1.4 Nexus-Requirement �� 78
6.4.1.5 Discretionary Provision: “May…”�� 79
6.4.1.6 “In Accordance with This Article”�� 80
6.4.1.7 “For Greater Certainty”�� 80
6.4.2 Limits�� 81
6.4.2.1 General Non-Discrimination Principle�� 81
6.4.2.2 Necessity-Requirement�� 81
6.4.2.3 Conformity Assessment Procedures�� 83
6.4.2.4 Functionality and Performance-Orientation�� 83
6.4.2.5 International Standards�� 84
6.4.2.6 Equivalence, Prohibition of Trademarks�� 85
6.4.2.7 Rules on Dialogues�� 86
6.4.2.8 Transparency: Tender Documentation �� 87
6.4.3 Production and Processing Methods (PPM) �� 88
6.4.4 Eco-Labels�� 89
6.5 Evaluation Criteria�� 91
6.5.1 Wording of Article X:9 GPA�� 92
6.5.2 Significance of Article X:9 GPA for GPP�� 92
x Contents
6.5.3 Limits�� 93

6.5.3.1 Transparency Requirement�� 93
6.5.3.2 Non-Discrimination Principle
(Article IV GPA)�� 93
6.5.3.3 “Most-Advantageous Tender”�� 94
6.5.3.4 Specific Requirements for Electronic Auctions �� 94
6.5.3.5 PPM and Eco-Labels�� 95
6.6 Qualification Criteria�� 95
6.6.1 Scope�� 95
6.6.2 Limits�� 96
6.6.2.1 Essentiality�� 96
6.6.2.2 Transparency Requirement�� 96
6.6.2.3 Non-Discrimination �� 97
6.7 Exclusion Criteria �� 97
6.7.1 Scope�� 97
6.7.2 Limits�� 98
6.8 Environmental Justifications �� 99
6.8.1 Rationale �� 99
6.8.2 Human, Animal or Plant Life and Health �� 100
6.8.2.1 Policy Objective �� 100
6.8.2.2 Necessity�� 100
6.8.3 Public Morals�� 101
6.8.3.1 Policy Objective �� 101
6.8.3.2 Necessity�� 102
6.8.4 “Chapeau” �� 103
Part III European Union

7 Regional Public Procurement Regulation and Implementation
of the GPA�� 111
7.1 Regional Public Procurement Regulation �� 111
7.1.1 Evolution of Common Public Procurement Regulation �� 111
7.1.2 2014 Reform and Current Developments �� 112
7.2 Notion of Public Procurement�� 113
7.3 EU and the GPA�� 114
7.3.1 Driving Force�� 114
7.3.2 Presumption of Equivalent Protection�� 115
7.3.3 Direct Effect�� 116
7.4 Legal Foundations�� 117
7.4.1 Primary Law: Treaty on the Functioning of the EU �� 118
7.4.2 Secondary Law: Procurement Directives�� 119
7.4.3 Modus Operandi of the Public Procurement Directives �� 119
7.4.4 Scope and Coverage�� 121
Contents xi
7.4.4.1 Public Contracts, Supply Contracts or

Concessions�� 121
7.4.4.2 Contracting Authorities or Entities�� 122
7.4.4.3 Thresholds Values�� 122
7.5 Non-Discrimination Principle�� 123
7.5.1 Non-Discrimination in the TFEU �� 124
7.5.2 Non-Discrimination in the Public Procurement
Directives�� 125
7.5.3 Equal Treatment Element�� 126
7.5.4 Prohibition of Direct and Indirect Discrimination�� 127
7.5.5 Exceptions and Justifications�� 128
7.6 Remedies�� 129
8 Regulatory Scope for GPP�� 133
8.1 Evolution of GPP in the EU�� 133
8.1.1 Jurisprudence, Policy Initiatives and Legislative
Reforms�� 134
8.1.2 2014 Revision and Forward�� 136
8.2 Environmental Integration Principle (EIP) �� 137
8.2.1 General Nature of the EIP�� 137
8.2.2 Implications for GPP�� 138
8.3 Technical Specifications�� 139
8.3.1 Scope and Limits�� 140
8.3.2 PPM�� 142
8.4 Award Criteria�� 143
8.4.1 Scope�� 143
8.4.1.1 Most Economically Advantageous Tender
(MEAT)�� 143
8.4.1.2 Life-Cycle Approach�� 145
8.4.2 Limits�� 146
8.4.2.1 Link to the Subject-Matter (LtSM)�� 147
8.4.2.2 Effective Competition�� 148
8.4.2.3 Transparency�� 148
8.5 Contract Performance Conditions�� 148
8.6 Eco-Labels�� 150
8.6.1 Judicial Background: Max Havelaar Ruling�� 151
8.6.2 New Provision�� 151
8.7 Supplier-Related Criteria�� 153
8.7.1 Scope of Green Selection Criteria�� 153
8.7.2 Scope of Green Exclusion Criteria �� 154
8.7.3 Limits�� 155
xii Contents
Part IV Switzerland
9 Domestic Public Procurement Regulation and Implementation
of the GPA�� 161
9.1 Structural Background�� 161
9.2 Emergence of a Regulatory Framework �� 162
9.2.1 Early Regulatory Approaches �� 162
9.2.2 Lengthy Reform Efforts�� 164
9.3 Notion of Public Procurement�� 165
9.3.1 Clarification of Central Terms�� 165
9.3.2 Public Procurement Procedures�� 166
9.4 Switzerland’s GPA Membership�� 167
9.4.1 History�� 167
9.4.2 Direct Applicability of the GPA�� 168
9.5 Implementation of the GPA�� 170
9.5.1 Federal Level�� 170
9.5.1.1 Law and Ordinance on Government
Procurement �� 171
9.5.1.2 Law on the Common Market (LCM)�� 171
9.5.1.3 Cartel Act �� 172
9.5.1.4 Federal Law on Technical Barriers to Trade�� 172
9.5.2 Cantonal Level�� 173
9.5.3 Reform of Legal Framework�� 174
9.6 Principle of Equal Treatment and Non-Discrimination�� 175
9.6.1 Non-Discrimination as a GPA-Obligation�� 176
9.6.2 Equal Treatment as a Constitutional Principle�� 177
9.6.3 Equal Treatment and Non-Discrimination in the FLGP �� 178
9.6.3.1 Purpose-Provision�� 178
9.6.3.2 Objectivity and Impartiality as a Procedural
Principle �� 179
10 Regulatory Scope for GPP�� 183
10.1 Evolution of GPP�� 183
10.1.1 Policy Level: Consolidation�� 184
10.1.2 Jurisprudence: Confirmation�� 185
10.1.3 Legislative Reform: Codification�� 186
10.1.3.1 First Codification of GPP in the Ordinance
(FGOP)�� 186
10.1.3.2 Incorporation of the Sustainability Goal
in the Law (FLGP)�� 187
10.2 Environmental Elements in the Swiss Constitution�� 188
10.2.1 Material Scope�� 188
10.2.2 Potential Field of Tension �� 189
10.2.3 Implications for GPP�� 190
Contents xiii
10.3 Technical Specifications: New Provision on GPP�� 191

10.3.1 Scope�� 192
10.3.2 Relevance�� 192
10.3.3 Limits�� 192
10.4 Award Criteria�� 194
10.4.1 Evolution of Green Award Criteria �� 194
10.4.2 Scope�� 195
10.4.2.1 “Sustainability”�� 195
10.4.2.2 Life Cycle Cost Approach �� 196
10.4.2.3 Most Economically Advantageous
Tenderer �� 197
10.4.3 Limits�� 198
10.4.3.1 Functionality�� 198
10.4.3.3 General Non-Discrimination Obligation �� 198
10.4.3.4 Minimal Weighting of “Price” �� 199
10.4.3.5 Is There a “Link to the Subject-Matter”-
Requirement?�� 200
10.5 Qualification Criteria�� 200
10.5.1 Scope�� 200
10.5.2 Limits�� 201
10.5.2.1 “Objective Necessity”- or “Essentiality”-
Requirement�� 201
10.5.2.2 Non-Discrimination Obligation �� 202
10.6 Exclusion Criteria �� 203
Part V Concluding Remarks

11 Conclusion�� 209
11.1 Findings on the Vertical Level�� 209
11.1.1 General Observations�� 209
11.1.2 WTO �� 211
11.1.2.1 Legal Acrobatics in the Multilateral
Agreements�� 211
11.1.2.2 GPP Codification in the GPA�� 211
11.1.2.2.1 Strong Signaling Effect �� 211
11.1.2.2.2 Modernized Text�� 212
11.1.2.2.3 Benefits of Plurilateral
Regulation �� 212
11.1.3 EU �� 213
11.1.3.1 Pioneer Role�� 213
11.1.3.2 New Instruments for GPP Implementation�� 213
11.1.4 Switzerland �� 214
xiv Contents
11.1.4.1 Challenging Regulatory Context �� 214

11.1.4.2 Combining Top-Down and Bottom-Up
Regulation�� 214
11.1.4.3 GPP Still in Its Infancy Stage�� 215
11.2 Findings on the Horizontal Level�� 215
11.2.1 Legislatory Approach and Regulatory Design�� 216
11.2.2 Distinguishing Technical Specifications from Award
Criteria�� 217
11.2.3 Award Criteria: LCC Instead of Acquisition Price �� 218
11.2.4 Eco-Labels�� 219
11.2.5 Contract Performance Conditions�� 219
11.3 Outlook �� 220
11.3.1 Further Dissemination of GPP�� 220
11.3.2 GPA: Policy Action Needed�� 221
11.3.3 EU: Professionalism and Fast-Paced Developments�� 221
11.3.4 Switzerland: Challenges Ahead�� 222
Bibliography �� 223

Official Documents�� 231
About the Author
Rika Koch is a postdoctoral research and teaching fellow at the University of

Zurich, where she completed her PhD thesis. She holds a bachelor’s degree in politi-
cal science (global governance) from the University of Zurich and a master’s degree
in international and european law from the University of Berne. Her research
focuses on international economic law, public procurement regulation and environ-
mental law.
xv
Abbreviations
ABR Appellate Body Report

AS Amtliche Sammlung des Bundesrechts
ASCM Agreement on Subsidies and Countervailing Measures
ALT Abnormally low tenders
BGBM Bundesgesetz über den Binnenmarkt
BöB Bundesgesetz über das öffentliche Beschaffungswesen
BTA Border tax adjustments
CartA Cartel Act
CDM Clean Development Mechanism
CETA Comprehensive Economic and Trade Agreement
CFREU Charter of Fundamental Rights of the European Union
CJEU Court of Justice of the European Union
CTE Committee on Trade and Environment
d-FLGP Draft version of the Federal Law on Government Procurement
d-FOGP Draft version of the Federal Ordinance on Government Procurement
DSU Dispute settlement understanding
DSM Dispute settlement mechanism
EC European Communities
EEA European Economic Area
EFTA European Free Trade Agreement
EGA Environmental Goods Agreement
EMS Environmental Management System
EIP Environmental Integration Principle
EPA Environmental Protection Act
EU European Union
ETS Emission trading scheme(s)
FDI Foreign direct investment
FLGP Federal Law on Government Procurement
FLTBT Federal Law on Technical Barriers to Trade
FOEN Federal Office for the Environment
FOGP Federal Ordinance on Government Procurement
xvii
xviii Abbreviations
FTA Free trade agreement(s)

GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GBP Pound sterling
GDP Gross domestic product
GHG Greenhouse gas(es)
GPA Plurilateral Agreement on Government Procurement
GPP Green Public Procurement
IAPP Inter-Cantonal Agreement on Public Procurement
ICSID International Centre for Settlement of Investment Disputes
ILO International Labour Organization
IPCC Intergovernmental Panel on Climate Change
IPF Investment Project Financing
ITA Information Technology Agreement
ITO International Trade Organization
ISO International Organization for Standardization
IT Information technology
IVöB Interkantonale Vereinbarung über das öffentliche Beschaffungswesen
KG Kartellgesetz
KP Kyoto Protocol
LCC Life cycle costing/life cycle costs
LCM Law on the Establishment of a Swiss Common Market
LCR Local content requirement(s)
LtSM Link to the Subject Matter
MEA Multilateral environmental agreement(s)
MEAT Most economically advantageous tender(er)
MFN Most favoured nation
MRA Mutual recognition agreement
npr PPM Non-product-related Process and Production Methods
OECD Organisation for Economic Co-operation and Development
OJEU Official Journal of the European Union
org-FGOP Ordinance on the Organization of Federal Public Procurement
Org-VöB Verordnung über die Organisation des öffentlichen Beschaffungswesens
der Bundesverwaltung
PPM Process and production methods
QMS Quality management systems
PR Panel report
S&D Special and differential [treatment]
SDR Special drawing rights
SME Small and medium-sized enterprises
SPS Agreement on the Application of Sanitary and Phytosanitary
Measures
SR Systematische Sammlung des Bundesrechts
TBT Agreement on Technical Barriers to Trade
TEU Treaty on European Union
Abbreviations xix
TFEU Treaty on the Functioning of the European Union

THG Bundesgesetz über die Technischen Handelshemmnisse
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNEP United Nations Environment Programme
UNFCCC United Nations Framework Convention on Climate Change
USCMA US–Mexico–Canada Agreement
USG Bundesgesetz über den Umweltschutz
VCLT Vienna Convention on the Law of Treaties
VöB Verordnung über das öffentliche Beschaffungswesen
WTO World Trade Organization
Chapter 1
Introduction
1.1 Research Subject
With the acknowledgment of environmental protection as an important governmen-

tal responsibility, environmental aspects in public procurement have been receiving
growing attention in recent years. Governments build schools (and other public
buildings) out of wood instead of concrete, hospitals serve food from organic pro-
ducers and public buses use electricity instead of diesel—all with the aim of protect-
ing the environment. What is generally referred to as “green” public procurement
(GPP) is increasingly perceived as a viable way to contribute to environmental pro-
tection policies.
From an environmental perspective, GPP is uncontested, since it contributes to
environmental protection in many ways: through reducing greenhouse gas (GHG)
emissions and landfill waste, conserving natural resources, and increasing demand
and supply for environmental friendly production—to name only a few examples.
From an international trade law perspective, however, there is potential for con-
flict. Critics fear the use of GPP as a cover for protectionism and run counter to the
legislative framework of the World Trade Organization (WTO). For example, a
country may require its police to buy only electric cars, instead of petrol cars. While
the official reason could be the protection of the environment, the true reason might
be to boost the national industry of electric cars. Another country may request that
authorities build public houses with wood to keep the ecological footprint of con-
struction low, but the true reason could be to develop the local wood industry. Both
of these examples are clear cases of discriminatory public procurement practices.
However, there are more ambiguous cases: a country may award a contract for man-
aging waste disposal to a local bidder, arguing that he has the shortest transportation
route and thus emits little GHG. Is this a justified case of GPP or discriminatory
protectionist public procurement?
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to 1
Springer Nature Switzerland AG 2020
R. Koch, Green Public Procurement under WTO Law, European Yearbook of
International Economic Law 9, https://doi.org/10.1007/978-3-030-48214-5_1
2 1 Introduction
Often a delicate balancing act between environmental and competition concerns

becomes necessary. The difficulty that arises from this balancing act is to exploit the
scope of GPP provisions without risking a breach of non-discrimination provisions
in the pertinent public procurement legislation.
On a WTO level, the Government Procurement Agreement (GPA) is the perti-
nent international agreement for public procurement regulation. The GPA contains
plurilateral rules that Signatory States and their procuring authorities have to adhere
to. Until 2012, the GPA did not regulate GPP, creating a legal gap that caused many
controversies about its compatibility with the non-discrimination obligations of the
GPA. However, this has changed with the most recent revision: the current version
of the GPA expressly acknowledges GPP as a public procurement strategy.
While this removes all doubts about the general compatibility of GPP with the
GPA, questions of the exact scope and limit of GPP under the revised GPA 2012 still
remain largely unanswered.
1.2 Relevance and Research Goals
In many jurisdictions, there is still considerable legal uncertainty about the status of
GPP laws and policies and their relation to the GPA. This causes a challenging situ-
ation for all actors involved in the procurement process. It is difficult for the procur-
ing authority, on the one hand, to define the goods or services they wish to procure
and, on the other hand, for the bidding companies to design their tendering offer
accordingly. This, in turn, undermines confidence in the procurement system. As
pointed out by Weber / Menoud legal uncertainty regarding the GPA (and fear from
unforeseeable legal consequences) is one of the principle reasons that leads con-
tracting authorities to refrain from implementing GPP.1
Working from this background, this thesis aims to overcome legal uncertainties
that still surround national GPP regarding its compatibility with the GPA. In a first
step, the pertinent provisions of the GPA will be assessed within the broader context
of general WTO law and jurisprudence to draw conclusions on the interpretive
scope potentially granted by a Panel or the Appellate Body. In a second step, this
thesis assesses the implementation laws of both the EU and Switzerland. This will
serve the goal of formulating concrete policy recommendations for Switzerland
(and other Signatory States) on how to design GPP laws and practices in accordance
with the GPA.
Thereby, this thesis also serves to illustrate the interaction mechanisms between
the WTO and its Member States. Based on the example of Switzerland it shows how
sovereign states proceed to implement their obligations arising from international
law, in a field that has practical implications even on the communal level. Moreover,
the analysis of the implementation of the GPA in Switzerland, focusing on the
1
Weber / Menoud, 185.
1.3 Research Questions 3
specific example of GPP, also highlights how potential conflicts between interna-
tional (trade) rules and domestic (environmental) policies can be reconciled.
A look at the amount of existing literature on GPP presents a mixed picture:
while in the EU there is extensive literature,2 this is not the case in other GPA coun-
tries such as Switzerland, Japan or the US.3 Nevertheless, scholars from the
European Union (EU) mainly focus on GPP and its compatibility with the EU leg-
islative framework. The question of compatibility with the GPA seems to be of little
interest. Scholars of international law, on the other hand, seem to leave the question
of GPP aside and rather focus on the more classical issues of international public
procurement, such as coverage of the revised GPA 2012, market liberalization, or
issues of membership.4
In Switzerland, GPP is a little researched topic. Although literature on public
procurement does not fail to mention the GPA as an important source of law, an
exact analysis taking into consideration issues of general WTO law, especially juris-
prudence, has not been conducted so far. This explains why GPP remains a conten-
tious issue, whereby WTO law is often argued to be an impeding instead of an
enabling factor, despite the changed legal situation under the GPA 2012.
1.3 Research Questions
This thesis will be guided by a set of research questions, whose answers will serve
to meet the research goal. Each of these questions addresses a different layer of
governance, namely the international, regional and domestic level.
The starting point of this thesis is the fundamental question of what scope the
revised GPA leaves for GPP. However, the GPA is a framework agreement that
becomes fully effective only through implementation on the domestic (or in the case
of the EU, regional) level. Since the WTO does not set forth requirements on how
to transpose the GPA, but leaves implementation to its signatory parties, it is
interesting to compare how various Signatory States use the respective scope and
leeway given to them under the GPA.
2
See ex multis, Arrowsmith / Kunzlik, passim; Sjåfjell / Wiesbrock, passim, or Semple 2015, passim.
3
Although some countries have published GPP recommendations for procurement officials, these
guidelines typically adopt a practitioner’s perspective and do not elaborate on dogmatic legal
aspects.
4
See for example Arrowsmith 2003, Reich 2009, passim; Anderson / Arrowsmith, passim, or
Evenett / Hoekman, passim, or Georgopoulos / Hoekman / Mavroidis, passim.
4 1 Introduction
1.3.1 WTO
In a first step, identifying the various GPP elements that have found their way into
the GPA 2012 will help to get a clear understanding of what instruments the GPA
provides for the consideration of GPP. The first research question in this regard
takes a look at the changed wording of the law:
• Which GPP provisions have been introduced by the GPA 2012 revision?
In a second step, these GPP provisions will be analyzed behind the background
of the various non-discrimination principles enshrined in WTO law. The question
that will guide this analysis is:
• What limits do the various non-discrimination provisions of WTO law
pose to GPP?
In line with the general rules of treaty interpretation,5 these provision have to be
analyzed in order to make assumptions (albeit hypothetical ones) about the ways in
which the WTO adjudicatory bodies would interpret their wording. Accordingly, the
sub-question asked in this regard is:
• How would a Panel or the Appellate Body interpret the wording of the pertinent
GPA provisions?
Due to the lack of case law on the GPA, this question can only be answered by
looking at the decisions of the adjudicatory bodies within the context of the multi-
lateral WTO agreements, namely the General Agreement on Tariffs and Trade
(GATT), the General Agreement on Trade in Services (GATS) or the Agreement on
Technical Barriers to Trade (TBT). Since WTO adjudicatory bodies may only devi-
ate from former case-law when “cogent reasons” to do so exist,6 assessing the inter-
pretative approaches of the multilateral agreements will make it possible to draw
conclusions on potential interpretive approaches of GPA.
1.3.2 EU
The EU is an important party to the GPA as all of its 28 Member States are bound
by the GPA (although the EU counts as a single party). Moreover, the EU is known
as an important advocator of GPP. Therefore, its ways of implementing GPP can
provide important insights on how to balance GPP with the requirements of non-
discrimination, also for other GPA parties, such as Switzerland. To this aim the
following questions will guide the research in Part III:
5
See below, next chapter.
Appellate Body Report, United States – Final Anti-Dumping Measures on Stainless Steel from
6
Mexico, WT/DS344/AB/R, circulated 30 April 2008 [US – Stainless Steel], 160.

1.4 Methods 5
• How are the GPA’s non-discrimination and GPP elements transposed into EU
public procurement legislation?
This question will be assessed by looking at the text of revised public procure-
ment directives. In addition, case-law and developments at policy level will also be
taken into account.
1.3.3 Switzerland
Switzerland has been a Signatory State of the GPA from the beginning. However,
unlike all the other GPA Parties, Switzerland has not ratified the GPA 2012 as of
2020. The reason for this delay is that the GPA ratification was taken as an opportu-
nity to simultaneously reform domestic public procurement law. This process of
total reform has proven to be a lengthy one, since it requires consolidation by many
stakeholders at various federal levels.
This total reform comes with significant changes for GPP: for the first time, GPP
elements are now mentioned in the Swiss public procurement law. Moreover, the
law also provides guidelines on how to conduct GPP in line with principles of non-
discrimination and best value for money. Nevertheless, GPP is a relatively new issue
under Swiss law, and there is still great legal uncertainty, especially concerning its
compatibility with the GPA. Behind this background, the following research ques-
tion will guide the analysis in Part IV:
• How does Switzerland implement the GPA in general and GPP elements in par-
ticular within the course of its total reform?
Thereby, the focus lies on an assessment of the legal text, i.e. the provisions of
the legislative proposal for a revised Swiss public procurement law. This not only
provides practical solutions for GPP in line with the GPA, but also illustrates the
legislative mechanisms of interaction between the WTO and its Member States.
1.4 Methods
1.4.1 Rules of Treaty Interpretation
To interpret the scope of the new legal provisions on GPP in the GPA, it is necessary
to adopt a textual analysis following the general rules on treaty interpretation
inscribed in the Vienna Convention on the Law of Treaties (VCLT).
The VCLT is of major relevance when interpreting WTO law: it has long been
acknowledged by WTO jurisprudence that Articles 31 and 32 VCLT are “customary
rules of interpretation of public international law” within the meaning of Article 3.2
6 1 Introduction
Dispute Settlement Understanding (DSU).7 Therefore, the WTO dispute settlement

bodies need to take these articles into account when interpreting the covered
agreements.8
According to the VCLT, the starting point of every textual analysis is the wording
of the text.9 Article 31.1 VCLT states that:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose
(emphasis added).
The first step is to identify the “ordinary meaning” of the analyzed provision.
This can be complex, because words have usually more than one meaning.10
Therefore, the elements of “context” and “object and purpose” are also taken into
consideration.
The identification of the “ordinary meaning” is easy, when the analyzed treaty/
agreement has a definition catalogue (which is now the case in Article 1 of the
GPA). Nevertheless, the majority of important key terms remain without legal defi-
nition, which makes it necessary to resort to jurisprudence.
However, since jurisprudence under the GPA remains scarce (the new GPA 2012
has so far not been subject to scrutiny by a Panel or the Appellate Body), it is neces-
sary to refer to jurisprudence under the other (multilateral) WTO Agreements. This
approach complies with the VCLT, since Article 31.1(a) expressly states that
The context (…) shall comprise, in addition to the text (…) (a): any agreement relating to
the treaty which was made between all the parties in connection with conclusion of
the treaty.
Therefore, jurisprudence made in relation to agreements such as the GATT and

the TBT can be generally considered relevant context for the GPA.
When there is no case-law available, treaty interpreters usually resort to the dic-
tionary to find the “normal” linguistic usage of a term.11 However, the Appellate
Body also pointed out that “dictionary meanings leave many interpretive questions
open”.12 This makes an analysis on a case-by-case basis under consideration of the
specific circumstances of the respective case necessary. Other legal sources may
7
Article 3.2 DSU states, inter alia, that the WTO dispute settlement mechanism (DSM) “serves to
preserve the rights and obligations of Members under the covered agreements, and to clarify the
existing provisions of those agreements in accordance with customary rules of interpretation of
public international law” (emphasis added).
8
Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline,
WT/DS2/AB/R, adopted 20 May 1996 [US – Gasoline], 17.
9
See e.g. Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/
DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996 [ABR, Japan – Alcoholic Beverages
II], 11.
10
Schwarzenberger, 219.
11
Gardiner, 186.
12
Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/
AB/R, adopted 20 August 1999 [ABR, Canada – Aircraft], para. 153.
1.4 Methods 7
serve as relevant context, e.g. other agreements that were concluded between all the
GPA parties, or at least between the two parties involved in a dispute (Article 31.2(b)
VCLT).13 Furthermore, the Preamble or other provisions, titles, punctuation and
syntax of a treaty (or related treaties) may serve as relevant context.14
As indicated by the last word of Article 31.1 VCLT, it is important that a term is
not only interpreted by its literal meaning, but also by its “objective and purpose”.15
The Appellate Body reiterated on various occasions that an interpretation of an
agreement in light of its “objective and purpose” avoids an unnecessarily narrow
interpretation.16
If the three elements in Article 31 VCLT would still leave the meaning of the
respective provision unclear or lead to “absurd or unreasonable” conclusions,
Article 32 VCLT allows recourse to “supplementary means of interpretation, such
as preparatory work”. Consequently, the negotiation history of the GPA will be
considered within the framework provided for in Article 32 VCLT. Other supple-
mentary sources could include academic books or articles, case reviews or country
reports.
1.4.2 Illustrative Comparison
The GPA, like any WTO agreement, is constituted as a framework law and, as such,
merely sets forth objectives and minimal standards to be adhered to. Signatory
States generally have broad discretionary power when it comes to the implementa-
tion of the GPA rules in their domestic laws.
In some GPA Signatory States, as it tends to be the case in Switzerland, this dis-
cretion has led to confusions with regard to the implementation of GPP laws and
policies. Consequently, procuring authorities have often refrained from introducing
environmental (“green”) criteria in their tender requirements, for fear of a potential
violation of WTO law. To highlight and delineate the scope for GPP within the GPA,
this thesis thus compares Swiss implementation laws with the implementation laws
of the EU, another GPA signatory.
13
In an environmental context this most importantly concerns multilateral environmental agree-
ments (MEA) or treaties based on the United Nations Framework Convention on Climate Change
(UNFCCC).
14
See Gardiner, 197 – 210; Cook, 15.4.
15
This third element Article 31.1 VCLT, although consisting of two different words, is commonly
understood as one term, see e.g. Gardiner, 213.
16
Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp
Products, WT/DS58/AB/R, adopted 6 November 1998 [ABR, US – Shrimp], para. 114; Appellate
Body Report, United States – Definitive Anti-Dumping and Countervailing Duties on Certain
Products from China, WT/DS379/AB/R, adopted 25 March 2011 [ABR, US – Anti-Dumping and
Countervailing Duties (China)], paras. 8.75-8.76. ABR, US – Shrimp, paras. 129–131.
8 1 Introduction
Thereby, the EU will serve as the base of comparison, notwithstanding the fact
that the EU regulates only on a regional, and not on a domestic level. Like the GPA,
the EU’s public procurement directives are only the framework regulations (with the
primary aim of strengthening the internal market), while public procurement usu-
ally takes place at a (sub-) national level. Although a comparison between the EU as
a supranational body and Switzerland as a sovereign state can only be illustrative, it
nevertheless provides valuable insights. First of all, the EU is known to be taking a
lead role in global climate change mitigation, and in the same line, also is a driving
force in GPP implementation. Secondly, Swiss law has traditionally always had
strong ties to EU law, due to its geographic proximity and its technical connection
to the EU internal market. Thirdly, Switzerland is characterized by a strongly feder-
alist structure. Since public procurement typically takes place on a cantonal or even
communal level, the regulatory situation can, to some degree, still be comparable.
The comparison with EU laws and practices is thus expected to provide useful
insight in terms of an illustrative “best-practice” example.
Thereby, this thesis does not claim to be universal and pursue a purely compara-
tive approach. The comparison of the two different legislations within the EU and
Switzerland is a very limited one; a comparison based on a more extensive sample
encompassing a bigger number (or even all) of the GPA Member States would,
however, go beyond the scope of this thesis.
1.4.3 Expert Interviews
The effectiveness of GPP strongly depends on the way they are applied in the indi-
vidual tendering process. It is thus important to consider the practical perspective
and experiences of procuring entities.
Therefore, apart from the textual analysis, this thesis has greatly benefited from
the opportunity to interact with experts and practitioners, who were willing to share
their expertise in the field of GPP. Those meetings have been extremely helpful and
have provided a better understanding of the practical context in which GPP policies
and practices are developed and applied in the “real world”. Thereby, the thesis does
not claim to constitute qualitative or quantitative research. The interviews conducted
were of an informal nature; they provided guidelines for interpretation and helped
to understand the practical constraints in establishing or enforcing GPP.
1.5 Limitations
Public procurement is a complex subject: it is relevant not only on a legal, but also
on an economic, political and social level. Furthermore, in the case of GPP, environ-
mental natural science also plays a significant role to assess the environmental
effectiveness of various GPP measures. The analysis of this thesis, however, focuses
1.6 Outline 9
on one aspect of public procurement and GPP, namely the aspect of regulation. It
conducts a legal analysis, relying on the limited methods of treaty interpretation and
drawing on the legal literature.
Further limits are posed by language. Public procurement legislations all over the
world are characterized by fragmentation. The same applies to public procurement
jargon. While the EU commonly refers to the term “public procurement”, American
scholars mainly speak of “government procurement” (and “public contracting”).
This is also the predominant term used in a WTO context, and consequently, the
term used in the English version of Swiss official documents.17 This thesis uses both
terms analogously. Moreover, literature shows a broad variety in addressing the
various actors engaged in public procurement. For reasons of consistency, this the-
sis mainly refers to the public buyer as “procuring entity” or “contracting authority”
and to the private provider as “supplier” or “tenderer” (and, if the context required
it, “bidder” or “economic actor”).
Finally, this thesis is up to date as of spring 2020. Jurisprudence, literature and
legislative developments have been considered until 29 March 2019 and punctually
complemented until April 2020, legislative developments in Switzerland have been
considered until the final adoption of the Swiss public procurement law in 2019.
1.6 Outline
This thesis is structured in four parts. Part I starts by providing the conceptual
framework for GPP. Chapter 2 briefly outlines the underlying concept of public
procurement, in order to draw a picture of the potential of conflict between interna-
tional procurement and horizontal policies. This is necessary to understand the big-
ger picture surrounding the debate about GPP. Chapter 3 then continues to introduce
the concept of GPP, by discussing its role as an environmental policy measure and
by providing practical examples of application and by introducing the basic instru-
ments of implementation.
Part II addresses GPP in the context of international trade law, in particular
within the framework of WTO law. It will start in Chap. 4 with embedding GPP in
the broader context of the general “trade and environment” debate that surrounds
the question of compatibility of trade law with environmental measures. To this aim,
it also provides examples of regulatory approaches of GPP in international public
procurement regimes other than the GPA. Chapter 5 discusses why not only the
GPA but also the multilateral agreements of the WTO may be relevant for
GPP. Chapter 6 constitutes the key chapter of this thesis, providing a detailed analy-
sis of the GPA’s non-discrimination principle on the one hand, and the GPP provi-
sions on the other hand. This serves to delineate the scope of the GPA for
17
For legal texts or designations in German, this thesis has referred to (official or unofficial) trans-
lations and only in cases where such translations did not exist on the author’s own translation.
10 1 Introduction
environmental considerations within the framework of technical specifications,

award criteria and supplier related criteria.
Part III shifts the focus from the international to the implementation level and
addresses the EU. The EU has taken a pioneer role for international public procure-
ment liberalization and at the same time also for GPP. Therefore, it provides a good
example of how to balance both of these concerns. A special focus lays on the tex-
tual analysis of the new public procurement directives that have been either adapted
or newly introduced with the 2014 revision. Moreover, jurisprudence on GPP and
institutional developments on a policy level are also considered in the analysis.
Part IV addresses the domestic implementation level by analyzing GPP in Swiss
public procurement laws. Switzerland is an interesting example of GPA implemen-
tation because its public procurement laws are still relatively young, and because
GPA implementation in a distinctly federalist country entails particular challenges.
Chapter 9 will shed light on these challenges and provide an overview of Swiss
public procurement regulation, especially regarding GPA implementation. This is
necessary for the discussion in Chap. 10 of the integration of GPP elements in the
public procurement legislation that will be reformed within the course of the GPA
ratification. Thereby, the analysis also includes questions of compatibility with
WTO law to answer: namely, whether or not revised Swiss procurement laws meet
the non-discrimination requirements of the GPA 2012, especially regarding GPP. To
this aim, the scope for GPP under the GPA will be delineated in Chap. 9.
Ultimately, this thesis concludes with some final observations reflecting the
research questions: firstly, by providing some practical solution approaches regard-
ing the specific design of GPP policies and measures in compatibility with the GPA,
and secondly, by discussing potential future developments of GPP in the WTO, the
EU and in Switzerland.
Part I
Conceptual Framework
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“What—has—prevented—him?” I roared.
“Look out—your van will be in the ditch.”
And turning quickly I was just in time to pull the tiresome brute of a
horse, who never could be left to himself an instant, straight again.
I walked on shrugging my shoulders. Menzies-Legh was without any
doubt as ill-conditioned a specimen of manhood as I have ever come across.
At the four crossroads beyond Brede, on the party’s pausing as usual to
argue over the signpost while Fate, with Frogs’ Hole Farm up her sleeve,
laughed in the background, I laid my hand on Jellaby’s arm—its thinness
quite made me jump—and said, “Where is Lord Sigismund?”
“Gone home, I believe, with his father.”
“Why is he not coming back?”
“He’s prevented.”
“But by what? Is he ill?”
“Oh, no. He’s just—just prevented, you know.”
And Jellaby slipped his arm out of my grasp and went to stare with the
others up at the signpost.
On the road we finally decided to take, while they were all clustering
round the labourer I have mentioned who directed us to the deserted farm, I
approached Frau von Eckthum who stood on the outer fringe of the cluster,
and said in the gentler voice I instinctively used when speaking to her, “I
hear Lord Sigismund is not coming back.”
Gently as my voice was, it yet made her start; she generally did start
when spoken to, being unusually (it adds to her attractiveness) highly strung.
(“She doesn’t when I speak to her,” said Edelgard, on my commenting to
her on this characteristic.
“My dear, you are merely another woman,” I replied—somewhat sharply,
for Edelgard is really often unendurably obtuse.)
“I hear Lord Sigismund is not coming back,” I said, then, very gently, to
the tender lady.
“Oh?” said she.
For the first time I could have wished a wider range of speech.
“He has been prevented, I hear.”
“Oh?”
“Do you know what has prevented him?”
She looked at me and then at the others absorbed by the labourer with a
funny little look (altogether feminine) of helplessness, though it could not of
course have been that; then, adding another letter but not unfortunately
another word to her vocabulary, she said “No”—or rather “N-n-n-o,” for she
hesitated.
And up bustled Jellaby as I was about to press my inquiries, and taking
me by the elbow (the familiarity of this sort of person!) led me aside to
overwhelm me with voluble directions as to the turnings to Frogs’ Hole
Farm.
Well, it was undoubtedly a blow to find by far the most interesting and
amiable member of the party (with the exception of Frau von Eckthum)
gone, and gone without a word, without an explanation, a farewell, or a
regret. It was Lord Sigismund’s presence, the presence of one so
unquestionably of my own social standing, of one whose relations could all
bear any amount of scrutiny and were not like Edelgard’s Aunt Bockhügel
(of whom perhaps more presently) a dark and doubtful spot round which
conversation had to make careful détours—it was undoubtedly,
Gentle as my voice was, it yet made her start
I say, Lord Sigismund who had given the expedition its decent air of
being just an aristocratic whim, stamped it, marked it, raised it altogether
above mere appearances. He was a Christian gentleman; more, he was the
only one of the party who could cook. Were we, then, to be thrown for future
sustenance entirely on Jellaby’s porridge?
That afternoon, dining in the mud of the deserted farmyard, we had
sausages; a dinner that had only been served once before, and which was a
sign in itself that the kitchen resources were strained. I have already
described how Jellaby cooked sausages, goading them round and round the
pan, prodding them, pursuing them, giving them no rest in which to turn
brown quietly—as foolish a way with a sausage as ever I have seen. For the
second time during the tour we ate them pink, filling up as best we might
with potatoes, a practice we had got quite used to, though to you, my
hearers, who only know potatoes as an adjunct, it will seem a pitiable state
of things. So it was; but when one is hungry to the point of starvation a hot
potato is an attractive object, and two hot potatoes are exactly doubly so.
Anyhow my respect for them has increased tenfold since my holiday, and I
insist now on their being eaten in much larger quantities than they used to be
in our kitchen, for do I not know how thoroughly they fill? And servants
quarrel if they have too much meat.
“That is poor food for a man like you, Baron,” said Menzies-Legh,
suddenly addressing me from the other end of the table.
He had been watching me industriously scraping—picture, my friends,
Baron von Ottringel thus reduced—scraping, I say, the last remnants of the
potatoes out of the saucepan after the ladies had gone, accompanied by
Jellaby, to begin washing up.
It was so long since he had spoken to me of his own accord that I paused
in my scraping to stare at him. Then, with my natural readiness at that sort of
thing, I drew his attention to his bad manners earlier in the afternoon by
baldly answering “Eh?”
“I wonder you stand it,” he said, taking no notice of the little lesson.
“Pray will you tell me how it is to be helped?” I inquired. “Roast goose
does not, I have observed, grow on the hedges in your country.” (This, I felt,
was an excellent retort.)
“But it flourishes in London and other big towns,” said he—a foolish
thing to say to a man sitting in the back yard of Frogs’ Hole Farm. “Have a
cigarette,” he added; and he pushed his case toward me.
I lit one, slightly surprised at the change for the better in his behaviour,
and he got up and came and sat on the vacant camp-stool beside me.
“Hunger,” said I, continuing the conversation, “is the best sauce, and as I
am constantly hungry it follows that I cannot complain of not having enough
sauce. In fact, I am beginning to feel that gipsying is a very health-giving
pursuit.”
“Damp—damp,” said Menzies-Legh, shaking his head and screwing up
his mouth in a disapproval that astonished me.
“What?” I said. “It may be a little damp if the weather is damp, but one
must get used to hardships.”
“Only to find,” said he, “that one’s constitution has been undermined.”
“What?” said I, unable to understand this change of attitude.
“Undermined for life,” said he, impressively.
“My dear sir, I have heard you myself, under the most adverse
circumstances, repeatedly remark that it was healthy and jolly.”
“My dear Baron,” said he, “I am not like you. Neither Jellaby, nor I, nor
Browne either, for that matter, has your physique. We are physically,
compared to you—to be quite frank—mere weeds.”
“Oh, come now, my dear sir, I cannot permit you—you undervalue—of
slighter build, perhaps, but hardly——”
“It is true. Weeds. Mere weeds. And my point is that we, accordingly, are
not nearly so likely as you are to suffer in the long run from the privations
and exposure of a bad-weather holiday like this.”
“Well now, you must pardon me if I entirely fail to see——”
“Why, my dear Baron, it’s as plain as daylight. Our constitutions will not
be undermined for the shatteringly good reason that we have none to
undermine.”
My hearers will agree that, logically, the position was incontrovertible,
and yet I doubted.
Observing my silence, and probably guessing its cause, he took up an
empty glass and poured some tea into it from the teapot at which Frau von
Eckthum had been slaking her thirst in spite of my warnings (I had, alas, no
right to forbid) that so much tea drinking would make her still more liable to
start when suddenly addressed.
“Look here,” said he.
I looked.
“You can see this tea.”
“Certainly.”
“Clear, isn’t it? A beautiful clear brown. A tribute to the spring water
here. You can see the house and all its windows through it, it is so perfectly
transparent.”
And he held it up, and shutting one eye stared through it with the other.
“Well?” I inquired.
“Well, now look at this.”
And he took another glass and set it beside the first one, and poured both
tea and milk into it.
“Look there,” he said.
I looked.
“Jellaby,” said he.
I stared.
Then he took another glass, and poured both tea and milk into it, setting it
in a line with the first two.
“Browne,” said he.
I stared.
Then he took a fourth glass, and filled it in the same manner as the
second and third and placed it at the end of the line.
“Myself,” said he.
I stared.
“Can you see through either of those three?” he asked, tapping them one
after the other.
“No,” said I.
“Now if I put a little more milk into them”—he did—“it makes no
difference. They were muddy and thick before, and they remain muddy and
thick. But”—and he held the milk jug impressively over the first glass—“if I
put the least drop into this one”—he did—“see how visible it is. The
admirable clearness is instantaneously dimmed. The pollution spreads at
once. The entire glass, owing to that single drop, is altered, muddied,
ruined.”
“Well?” I inquired, as he paused and stared hard at me.
“Well?” said he. “Do you not see?”
“See what?” said I.
“My point. It’s as clear as the first glass was before I put milk into it. The
first glass, my dear Baron, is you, with your sound and perfect constitution.”
I bowed.
“Your splendid health.”
I bowed.
“Your magnificent physique.”
I bowed.
“The other three are myself, and Jellaby, and Browne.”
He paused.
“And the drop of milk,” he said slowly, “is the caravan tour.”
I was confounded; and you, my hearers, will admit that I had every
reason to be. Here was an example of what is rightly called irresistible logic,
and a reasonable man dare not refuse, once he recognizes it, to bow in
silence. Yet I felt very well. I said I did, after a pause during which I was
realizing how unassailable Menzies-Legh’s position was, and endeavouring
to reconcile its unassailableness with my own healthful sensations.
“You can’t get away from facts,” he answered. “There they are.”
And he indicated with his cigarette the four glasses and the milk jug.
“But,” I repeated, “except for a natural foot-soreness I undoubtedly do
feel very well.”
“My dear Baron, it is obvious beyond all argument that the more
absolutely well a person is the more easily he must be affected by the
smallest upset, by the smallest variation in the environment to which he has
got accustomed. Paradox, which plays so large a part in all truths, is rampant
here. Those in perfect health are nearer than anybody else to being seriously
ill. To keep well you must never be quite so.”
He paused.
“When,” he continued, seeing that I said nothing, “we began caravaning
we could not know how persistently cold and wet it was going to be, but
now that we do I must say I feel the responsibility of having persuaded you
—or of my sister-in-law’s having persuaded you—to join us.”
“But I feel very well,” I repeated.
“And so you will, up to the moment when you do not.”
Of course that was true.
“Rheumatism, now,” he said, shaking his head; “I greatly fear
rheumatism for you in the coming winter. And rheumatism once it gets hold
of a man doesn’t leave him till it has ravaged each separate organ, including,
as everybody knows, that principal organ of all, the heart.”
This was gloomy talk, and yet the man was right. The idea that a holiday,
a thing planned and looked forward to with so much pleasure, was to end by
ravaging my organs did not lighten the leaden atmosphere that surrounded
and weighed upon Frogs’ Hole Farm.
“I cannot alter the weather,” I said at last—irritably, for I felt ruffled.
“No. But I wouldn’t risk it for too long if I were you,” said he.
“Why, I have paid for a month,” I exclaimed, surprised that he should
overlook this clinching fact.
“That, set against an impaired constitution, is a very inconsiderable
trifle,” said he.
“Not inconsiderable at all,” said I sharply.
“Money is money, and I am not one to throw it away. And what about the
van? You cannot abandon an entire van at a great distance from the place it
belongs to.”
“Oh,” said he quickly, “we would see to that.”
I got up, for the sight of the glasses full of what I was forced to
acknowledge was symbolic truth irritated me. The one representing myself,
into which he had put but one drop of milk, was miserably discoloured. I did
not like to think of such discolouration being my probable portion, and yet
having paid for a month’s caravaning what could I do?
The afternoon was chilly and very damp, and I buttoned my wraps
carefully about my throat. Menzies-Legh watched me.
“Well,” said he, getting up and looking first at me and then at the glasses
and then at me again, “what do you think of doing, Baron?”
“Going for a little stroll,” I said.
And I went.
CHAPTER XVII
T HIS was a singular conversation.

I passed round the back of the house and along a footpath I found
there, turning it over in my mind. Less than ever did I like Menzies-
Legh. In spite of the compliments about my physique I liked him less than
ever. And how very annoying it is when a person you do not like is right; bad
enough if you do like him, but intolerable if you do not. As I proceeded
along the footpath with my eyes on the ground I saw at every step those four
glasses of tea, particularly my one, the one that sparkled so brilliantly at first
and was afterward so easily ruined. Absorbed in this contemplation I did not
notice whither my steps were tending till I was pulled up suddenly by a
church door. The path had led me to that, and then, as I saw, skirted along a
fringe of tombstones to a gate in a wall beyond which appeared the
chimneys of what was no doubt the parsonage.
The church door was open, and I went in—for I was tired, and here were
pews; ruffled, and here was peace. The droning of a voice led me to
conclude (rightly) that a service was in progress, for I had learned by this
time that in England the churches constantly burst out into services,
regardless of the sort of day it is—whether, I mean, it is a Sunday or not. I
entered, and selecting a pew with a red cushion along its seat and a
comfortable footstool sat down.
The pastor was reading the Scriptures out of a Bible supported, according
to the unaccountable British custom, on the back of a Prussian eagle. This
prophetic bird—the first swallow, as it were, of that summer which I trust
will not long be delayed, when Luther’s translation will rest on its back and
be read aloud by a German pastor to a congregation forced to understand by
the simple methods we bring to bear on our Polish (also acquired) subjects—
eyed me with a human intelligence. We eyed each other, in fact, as old
friends might who meet after troublous experiences in an alien land.
Except for this bird, who seemed to me quite human in his expression of
alert sympathy, the pastor and I were alone in the building; and I sat there
marvelling at the wasteful folly that pays a man to read and pray daily to a
set of empty pews. Ought he not rather to stay at home and keep an eye on
his wife? To do, indeed, anything sooner than conduct a service which
nobody evidently wants? I call it heathenism; I call it idolatry; and so would
any other plain man who heard and saw empty pews, things of wood and
cushions, being addressed as brethren, and dearly beloved ones into the
bargain.
When he had done at the eagle he crossed over to another place and
began reciting something else; but very soon, after only a few words, he
stopped dead and looked at me.
I wondered why, for I had not done anything. Even, however, with that
innocence of conscience in the background, it does make a man
uncomfortable when a pastor will not go on but fixes his eyes on you sitting
harmless in your pew, and I found myself unable to return his gaze. The
eagle was staring at me with a startling expression of comprehension, almost
as if he too were thinking that a pastor officiating has such an undoubted
advantage over the persons in the pews that it is cowardice to use it. My
discomfort increased considerably when I saw the pastor descend from his
place and bear down on me, his eyes still fixing me, his white clothing
fluttering out behind him. What, I asked myself greatly perturbed, could the
creature possibly want? I soon found out, for thrusting an open Prayer-book
toward me he pointed to a verse of what appeared to be a poem, and
whispered:
“Will you kindly stand up and take your part in the service?”
Even had I known how, surely I had no part nor lot in such a form of
worship.
“Sir,” I said, not heeding the outstretched book, but feeling about in my
breast-pocket, “permit me to present you with my card. You will then see
——”
He, however, in his turn refused to heed the outstretched card. He did not
so much as look at it.
“I cannot oblige you to,” he whispered, as though our conversation were
unfit for the eagle’s ears; and leaving the open book on the little shelf in the
front of the pew he strode back again to his place and resumed his reading,
doing what he called my part as well as his own with a severity of voice and
manner ill-suited to one presumably addressing the liebe Gott.
Well, being there and very comfortable I did not see why I should go. I
was behaving quite inoffensively, sitting still and holding my tongue, and the
comfort of being in a building with no fresh air in it was greater than you,
my friends, who only know fresh air at intervals and in properly limited
quantities, will be able to understand. So I stayed till the end, till he, after a
profusion of prayers, got up from his knees and walked away into some
obscure portion of the church where I could no longer observe his
movements, and then, not desiring to meet him, I sought the path that had
led me thither and hurriedly descended the hill to our melancholy camp.
Once I thought I heard footsteps behind me and I hastened mine, getting as
quickly round a bend that would conceal me from any one following me as a
tired man could manage, and it was not till I had reached and climbed into
the Elsa that I felt really safe.
The three caravans were as usual drawn up in a parallel line with mine in
the middle, and their door ends facing the farm. To be in the middle is a most
awkward situation, for you cannot speak the least word of caution (or
forgiveness, as the case may be) to your wife without running grave risk of
being overheard. Often I used carefully to shut all the windows and draw the
door curtain, hoping thus to obtain a greater freedom of speech, though this
was of little use with the Ilsa and the Ailsa on either side, their windows
open, and perhaps a group of caravaners sitting on the ground immediately
beneath.
My wife was mending, and did not look up when I came in. How
differently she behaved at home. She not only used to look up when I came
in, she got up, and got up quickly too, hastening at the first sound of my
return to meet me in the passage, and greeting me with the smiles of a dutiful
and accordingly contented wife.
Shutting the Elsa’s windows I drew her attention to this.
“But there isn’t a passage,” said she, still with her head bent over a sock.
Really Edelgard should take care to be specially feminine, for she
certainly will never shine on the strength of her brains.
“Dear wife,” I began—and then the complete futility of trying to thresh
any single subject out in that airy, sound-carrying dwelling stopped me. I sat
down on the yellow box instead, and remarked that I was extremely fatigued.
“So am I,” said she.
“My feet ache so,” I said, “that I fear there may be something serious the
matter with them.”
“So do mine,” said she.
This, I may observe, was a new and irritating habit she had got into:
whatever I complained of in the way of unaccountable symptoms in divers
portions of my frame, instead of sympathizing and suggesting remedies she
said hers (whatever it was) did it too.
“Your feet cannot possibly,” said I, “be in the terrible condition mine are
in. In the first place mine are bigger, and accordingly afford more scope for
disorders. I have shooting pains in them resembling neuralgia, and no doubt
traceable to some nervous source.”
“So have I,” said she.
“I think bathing might do them good,” I said, determined not to become
angry. “Will you get me some hot water, please?”
“Why?” said she.
She had never said such a thing to me before. I could only gaze at her in a
profound surprise.
“Why?” I repeated at length, keeping studiously calm. “What an
extraordinary question. I could give you a thousand reasons if I chose, such
as that I desire to bathe them; that hot water—rather luckily for itself—has
no feet, and therefore has to be fetched; and that a wife has to do as she is
told. But I will, my dear Edelgard, confine myself to the counter inquiry, and
ask why not?”
“I, too, my dear Otto,” said she—and she spoke with great composure,
her head bent over her mending, “could give you a thousand answers to that
if I chose, such as that I desire to get this sock finished—yours, by the way;
that I have walked exactly as far as you have; that I see no reason why you
should not, as there are no servants here, fetch your own hot water; and that
your wishing or not wishing to bathe your feet has really, if you come to
think of it, nothing to do with me. But I will confine myself just to saying
that I prefer not to go.”
It can be imagined with what feelings—not mixed but unmitigated—I
listened to this. And after five years! Five years of patience and guidance.
“Is this my Edelgard?” I managed to say, recovering speech enough for
those four words but otherwise struck dumb.
“Your Edelgard?” she repeated musingly as she continued to mend, and
not even looking at me. “Your boots, your handkerchief, your gloves, your
socks—yes——”
I confess I could not follow, and could only listen amazed.
“But not your Edelgard. At least, not more than you are my Otto.”
“But—my boots?” I repeated, really dazed.
“Yes,” she said, folding up the finished sock, “they really are yours. Your
property. But you should not suppose that I am a kind of living boot, made to
be trodden on. I, my dear Otto, am a human being, and no human being is
another human being’s property.”
A flash of light illuminated my brain. “Jellaby!” I cried.
“Hullo?” was the immediate answer from outside. “Want me, Baron?”
“No, no! No, no! No, NO!” I cried leaping up and dragging the door
curtain to, as though that could possibly deaden our conversation. “He has
been infecting you,” I continued, in a whisper so much charged with
indignation that it hissed, “with his poisonous——”
Then I recollected that he could probably hear every word, and muttering
an imprecation on caravans I relapsed on to the yellow box and said with
forced calm as I scrutinized her face:
“Dear wife, you have no idea how exactly you resemble your Aunt
Bockhügel when you put on that expression.”
For the first time this failed to have an effect. Up to then to be told she
looked like her Aunt Bockhügel had always brought her back with a jerk to
smiles; even if she had to wrench a smile into position she did so, for the
Aunt Bockhügel is the sore point in Edelgard’s family, the spot, the smudge
across its brightness, the excrescence on its tree, the canker in its bud, the
worm destroying its fruit, the night frost paralyzing its blossoms. She cannot
be suppressed. She cannot be explained. Everybody knows she is there. She
was one of the reasons that made me walk about my room the whole of the
night before I proposed marriage to Edelgard, a prey to doubts as to how far
a man may go in recklessness in the matter of the aunts he fastens upon his
possible children. The Ottringels can show no such relatives; at least there is
one, but she looms almost equal to the rest owing to the mirage created by
fogs of antiquity and distance. But Edelgard’s aunt is contemporary and
conspicuous. Of a vulgar soul at her very birth, as soon as she came of age
she deliberately left the ranks of the nobility and united herself to a dentist.
We go there to be treated for toothache, because they take us (owing to the
relationship) on unusually favourable terms; otherwise we do not know
them. There is however an undoubted resemblance to Edelgard in her less
pleasant moods, a thickened, heavier, and older Edelgard, and my wife, well
aware of it (for I help her to check it as much as possible by pointing it out
whenever it occurs) has been on each occasion eager to readjust her features
without loss of time. On this one she was not. Nay, she relaxed still more,
and into a profounder likeness.
“It’s true,” she said, not even looking at me but staring out of the
window; “it’s true about the boots.”
“Aunt Bockhügel! Aunt Bockhügel!” I cried softly, clapping my hands.
She actually took no notice, but continued to stare abstractedly out of the
window; and feeling how impossible it was to talk really naturally to her
with Jellaby just outside, I chose the better part and with a movement I could
not wholly suppress of impatience got up and left her.
Jellaby, as I suspected, was sitting on the ground leaning against one of
our wheels as though it were a wheel belonging to his precious community
and not ours, hired and paid for. Was it possible that he selected this wheel
out of the twelve he could have chosen from because it was my wife’s
wheel?
“Do you want anything?” he asked, looking up and taking his pipe out of
his mouth; and I just had enough self-control to shake my head and hurry on,
for I felt if I had stopped I would have fallen upon him and rattled him about
as a terrier rattles a rat.
But what terrible things caravans are when you have to share one with a
person with whom you have reason to be angry! Of all their sides this is
beyond doubt the worst; worse than when the rain comes in on to your bed,
worse than when the wind threatens to blow them over during the night, or
half of them sinks into the mud and has to be dug out laboriously in the
morning. It may be imagined with what feelings I wandered forth into the
chill evening, homeless, bearing as I felt a strong resemblance to that
Biblical dove which was driven forth from the shelter of the ark and had no
idea what to do next. Of course I was not going to fetch the hot water and
return with it, as it were (to pursue my simile), in my beak. Every husband
throughout Germany will understand the impossibility of doing that—picture
Edelgard’s triumph if I had! Yet I could not at the end of a laborious day
wander indefinitely out-of-doors; besides, I might meet the pastor.
The rest of the party were apparently in their caravans, judging from the
streams of conversation issuing forth, and there was no one but old James
reclining on a sack in the corner of a distant shed to offer me the solace of
companionship. With a sudden mounting to my head of a mighty wave of
indignation and determination not to be shut out of my own caravan, I turned
and quickly retraced my steps.
“Hullo, Baron,” said Jellaby, still propped against my wheel. “Had
enough of it already?”
“More than enough of some things,” I said, eyeing him meaningly as I
made my way, much impeded by my mackintosh, up the ladder at an oblique
angle (it never could or would stand straight) against our door.
“For instance?” he inquired.
“I am unwell,” I answered shortly, evading a quarrel—for why should I
allow myself to be angered by a wisp like that?—and entering the Elsa drew
the curtain sharply to on his expressions of conventional regret.
Edelgard had not changed her position. She did not look up.
I pulled off my outer garments and flung them on the floor, and sitting
down with emphasis on the yellow box unlaced and kicked off my boots and
pulled off my stockings.
Edelgard raised her head and fixed her eyes on me with a careful
imitation of surprise.
“What is it, Otto?” she said. “Have you been invited out to dine?”
I suppose she considered this amusing, but of course it was not, and I
jerked myself free of my braces without answering.
“Won’t you tell me what it is?” she asked again.
For all answer I crawled into my berth and pulled the coverings up to my
ears and turned my face to the wall; for indeed I was at the end both of my
patience and my strength. I had had two days’ running full of disagreeable
incidents, and Menzies-Legh’s fatal drop of milk seemed at last to have
fallen into the brightness of my original strong tea. I ached enough to make
his prophesied rheumatism a very near peril, and was not at all sure as I lay
there that it had not already begun its work upon me, beginning it with an
alarming promise of system and thoroughness at the very beginning, i. e., my
feet.
“Poor Otto,” said Edelgard, getting up and laying her hand on my
forehead; adding, after a moment, “It is nice and cool.”
“Cool? I should think so,” said I shivering. “I am frozen.”
She got a rug out of the yellow box and laid it over me, tucking in the
side.
“So tired?” she said presently, as she tidied up my clothes.
“Ill,” I murmured.
“What is it?”
“Oh, leave me, leave me. You do not really care. Leave me.”
At this she paused in her occupation to gaze, I fancy, at my back as I lay
resolutely turned away.
“It is very early to go to bed,” she said after a while.
“Not when a man is ill.”
“It isn’t seven yet.”
“Oh, do not, I beg you, argue with me. If you cannot have sympathy you
can at least leave me. It is all I ask.”
This silenced her, and she moved about the van more careful not to sway
it, so that presently I was able to fall into an exhausted sleep.
How long this lasted I could not on suddenly waking tell, but everything
had grown dark and Edelgard, as I could hear, was asleep above me.
Something had wrenched me out of the depths of slumber in which I was
sunk and had brought me up again with a jerk to that surface known to us as
sentient life. You are aware, my friends, being also living beings with all the
experiences connected with such a condition behind you, you are aware what
such a jerking is. It seems to be a series of flashes. The first flash reminds
you (with an immense shock) that you are not as you for one comfortable
instant supposed in your own safe familiar bed at home; the second brings
back the impression of the loneliness and weirdness of Frogs’ Hole Farm (or
its, in your case, local equivalent) that you received while yet it was day; the
third makes you realize with a clutching at your heart that something
happened before you woke up, and that something is presently going to
happen again. You lie awake waiting for it, and the entire surface of your
body becomes as you wait uniformly damp. The sound of a person breathing
regularly in the apartment does but emphasize your loneliness. I confess I
was unable to reach out for matches and strike a light, unable to do anything
under that strong impression that something had happened except remain
motionless beneath the bed-coverings. This was no shame to me, my friends.
Face me with cannon, and I have the courage of any man living, but place
me on the edge of the supernatural and I can only stay beneath the
bedclothes and grow most lamentably damp. Such a thin skin of wood
divided me from the night outside. Any one could push back the window
standing out there; any one ordinarily tall would then have his head and
shoulders practically inside the caravan. And there was no dog to warn us or
to frighten such a wretch away. And all my money was beneath my mattress,
the worst place possible to put it in if what you want is not to be personally
disturbed. What was it I had heard? What was it that called me up from the
depths of unconsciousness? As the moments passed—and except for
Edelgard’s regular breathing there was only an awful emptiness and absence
of sound—I tried to persuade myself it was just the sausages having been so
pink at dinner; and the tenseness of my terror had begun slowly to relax
when I was smitten stark again—and by what, my friends? By the tuning of a
violin.
Now consider, you who frequent concerts and see nothing disturbing in
this sound, consider our situation. Consider the remoteness from the
highway of Frogs’ Hole Farm; how you had, in order to reach it, to follow
the prolonged convolutions of a lane; how you must then come by a cart
track along the edge of a hop-field; how the house lay alone and empty in a
hollow, deserted, forlorn, untidy, out of repair. Consider further that none of
our party had brought a violin and none, to judge from the absence in their
conversation of any allusions to such an instrument, played on it. No one
knows who has not heard one tuned under the above conditions the
blankness of the horror it can strike into one’s heart. I listened, stiff with
fear. It was tuned with a care and at a length that convinced me that the spirit
turning its knobs must be of a quite unusual musical talent, possessed of an
acutely sensitive ear. How came it that no one else heard it? Was it possible
—I curdled at the thought—that only myself of the party had been chosen by
the powers at work for this ghastly privilege? When the thing broke into a
wild dance, and a great and rhythmical stamping of feet began apparently
quite near and yet equally apparently on boards, I was seized with a panic
that relaxed my stiffness into action and enabled me to thump the underneath
of Edelgard’s mattress with both my fists, and thump and thump with a
desperate vigour that did at last rouse her.
Being half asleep she was more true to my careful training than when
perfectly awake, and on hearing my shouts she unhesitatingly tumbled out of
her berth and leaning into mine asked me with some anxiety what the matter
was.
“The matter? Do you not hear?” I said, clutching her arm with one hand
and holding up the other to enjoin silence.
She woke up entirely.
“Why, what in the world——” she said. Then pulling a window curtain
aside she peeped out. “There’s only the Ailsa there,” she said, “dark and
quiet. And only the Ilsa here,” she added, peeping through the opposite
curtain, “dark and quiet.”
I looked at her, marvelling at the want of imagination in women that
renders it possible for them to go on being stolid in the presence of what
seemed undoubtedly the supernatural. Unconsciously this stolidity, however,
made me feel more like myself; but when on her going to the door and
unbolting it and looking out she made an exclamation and hastily shut it
again, I sank back on my pillow once more hors de combat, so great was the
shock. Face me, I say, with cannon, and I can do anything but expect nothing
of me if it is ghosts.
“Otto,” she whispered, holding the door, “come and look.”
I could not speak.
“Get up and come and look,” she whispered again.
Well my friends I had to, or lose forever my moral hold of and headship
over her. Besides, I was drawn somehow to the fatal door. How I got out of
my berth and along the cold floor of the caravan to the end I cannot
conceive. I was obliged to help myself along, I remember, by sliding my
hand over the surface of the yellow box. I muttered, I remember, “I am ill—I
am ill,” and truly never did a man feel more so. And when I got to the door
and looked through the crack she opened, what did I see?
I saw the whole of the lower windows of the farmhouse ablaze with
candles.
CHAPTER XVIII
M Y hearers will I hope appreciate the frankness with which I show them
all my sides, good and bad. I do so with my eyes open, aware that some
of you may very possibly think less well of me for having been, for
instance, such a prey to supernatural dread. Allow me, however, to point out
that if you do you are wrong. You suffer from a confusion of thought. And I
will show you why. My wife, you will have noticed, had on the occasion
described few or no fears. Did this prove courage? Certainly not. It merely
proved the thicker spiritual skin of woman. Quite without that finer
sensibility that has made men able to produce works of genius while women
have been able only to produce (a merely mechanical process) young, she
felt nothing apparently but a bovine surprise. Clearly, if you have no
imagination neither can you have any fears. A dead man is not frightened.
An almost dead man does not care much either. The less dead a man is the
more do possible combinations suggest themselves to him. It is imagination
and sensibility, or the want of them, that removes you further or brings you
nearer to the animals. Consequently (I trust I am being followed?) when
imagination and sensibility are busiest, as they were during those moments I
lay waiting and listening in my berth, you reach the highest point of
aloofness from the superiority to the brute creation; your vitality is at its
greatest; you are, in a word, if I may be permitted to coin an epigram, least
dead. Therefore, my friends, it is plain that at that very moment when you
(possibly) may have thought I was showing my weakest side I was doing the
exact opposite, and you will not, having intelligently followed the argument,
say at the end of it as my poor little wife did, “But how?”
I do not wish, however, to leave you longer under the impression that the
deserted farmhouse was haunted. It may have been of course, but it was not
on that night of last August. What was happening was that a party from the
parsonage—a holiday party of young and rather inclined to be noisy people,
which had overflowed the bounds of the accommodation there—was
utilizing the long, empty front room as an impromptu (I believe that is the
expression) ball-room. The farm belonged to the pastor—observe the fatness
of these British ecclesiastics—and it was the practice of his family during
the holidays to come down sometimes in the evening and dance in it. All this
I found out after Edelgard had dressed and gone across to see for herself
what the lights and stamping meant. She insisted on doing so in spite of my
warnings, and came back after a long interval to tell me the above, her face
flushed and her eyes bright, for she had seized the opportunity, regardless of
what I might be feeling waiting alone, to dance too.
“You danced too?” I exclaimed.
“Do come, Otto. It is such fun,” said she.
“With whom did you dance, may I inquire?” I asked, for the thought of
the Baroness von Ottringel dancing with the first comer in a foreign farm
was of course most disagreeable to me.
“Mr. Jellaby,” said she. “Do come.”
“Jellaby? What is he doing there?”
“Dancing. And so is everybody. They are all there. That’s why their
caravans were so quiet. Do come.”
And she ran out again, a childishly eager expression on her face, into the
night.
“Edelgard!” I called.
But though she must have heard me she did not come back.
Relieved, puzzled, vexed, and curious together, I did get up and dress,
and on lighting a candle and looking at my watch I was astonished to find
that it was only a quarter to ten. For a moment I could not credit my eyes,
and I shook the watch and held it to my ears, but it was going, as steadily as
usual, and all I could do was to reflect as I dressed on what may happen to
you if you go to bed and to sleep at seven o’clock.
And how soundly I must have done it. But of course I was unusually
weary, and not feeling at all well. Two hours’ excellent sleep, however, had
done wonders for me so great are my recuperative powers, and I must say I
could not help smiling as I crossed the yard and went up to the house at the
remembrance of Menzies-Legh’s glass of tea. He would not see much milk
about me now, thought I, as I strode, giving my moustache ends a final
upward push and guided by the music, into the room in which they were
dancing.
The dance came to an end as I entered, and a sudden hush seemed to fall
upon the company. It was composed of boys and young girls attired in
evening garments next to which the clothes of the caravaners, weather-
beaten children of the road, looked odd and grimy indeed. The tender lady, it

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Green Public Procurement under WTO

Law: Experience of the EU and

Damages in EU Public Procurement Law 1st Edition Hanna

Public Procurement and the EU Competition Rules Second

Buying green A handbook on green public procurement 3rd

Universal Service in WTO and EU law Liberalisation and

Market Integration The EU Experience and Implications

Conflicting Philosophies and International Trade Law:

EU Citizens in the European Public Sphere: An Analysis

Harmonisation of EU Competition Law Enforcement Jurgita

EYIEL Monographs - Studies in European

More information about this subseries at http://www.springer.com/series/15744

Green Public Procurement

ISSN 2364-8392 ISSN 2364-8406 (electronic)

Part I Conceptual Framework

3.3.1 Ecological Relevance������������������������������������������������������������ 24

Part II World Trade Organization

5.2.2 Scope of Article III:8 GATT ������������������������������������������������ 56

6.5.3 Limits������������������������������������������������������������������������������������ 93

Part III European Union

7.4.4.1 Public Contracts, Supply Contracts or

10.3 Technical Specifications: New Provision on GPP�������������������������� 191

Part V Concluding Remarks

11.1.4.1 Challenging Regulatory Context �������������������� 214

Rika Koch is a postdoctoral research and teaching fellow at the University of

ABR Appellate Body Report

FTA Free trade agreement(s)

TFEU Treaty on the Functioning of the European Union

1.1 Research Subject

With the acknowledgment of environmental protection as an important governmen-

Often a delicate balancing act between environmental and competition concerns

1.2 Relevance and Research Goals

1.3 Research Questions

Mexico, WT/DS344/AB/R, circulated 30 April 2008 [US – Stainless Steel], 160.

1.4.1 Rules of Treaty Interpretation

Dispute Settlement Understanding (DSU).7 Therefore, the WTO dispute settlement

Therefore, jurisprudence made in relation to agreements such as the GATT and

1.4.2 Illustrative Comparison

1.4.3 Expert Interviews

environmental considerations within the framework of technical specifications,

T HIS was a singular conversation.

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Part I Conceptual Framework

3.3.1 Ecological Relevance�� 24

Part II World Trade Organization

5.2.2 Scope of Article III:8 GATT �� 56

6.5.3 Limits�� 93

Part III European Union

7.4.4.1 Public Contracts, Supply Contracts or

10.3 Technical Specifications: New Provision on GPP�� 191

Part V Concluding Remarks

11.1.4.1 Challenging Regulatory Context �� 214

1.1 Research Subject

1.2 Relevance and Research Goals

1.3 Research Questions

1.4.1 Rules of Treaty Interpretation

1.4.2 Illustrative Comparison

1.4.3 Expert Interviews