State aid and EU public procurement: more interactions, fuzzier boundaries
To be published in L Hancher & JJ Piernas López (eds), Research Handbook on European State Aid Law (2nd edn, Edward Elgar, 2020) forthcoming
19 Pages Posted:
Date Written: October 8, 2019
This chapter revisits the interaction between the EU rules on State aid and on public procurement. It probes the standard presumption that compliance with EU procurement rules excludes the existence of State aid because public tenders are apt to replicate market conditions and thus suppress any undue economic advantage. The chapter assesses the increasing number of points of interaction between both sets of rules that emerge from the novelties in the 2014 EU Public Procurement Package and the constant evolution of case law; and highlights some shortcomings of the standard presumption in relation to: the notion of State aid; R&D and pre-commercial procurement; ‘public house’ situations; negotiated procurement; abnormally low tenders; the procurement of services of general economic interest (SGEI); procurement itself as an SGEI; and procurement from ‘special organisations’. The chapter concludes that the boundaries of what constitutes State aid in the context of public procurement are fuzzier than ever. In doing so, the chapter offers a roadmap for further research in this area of EU economic law, as well as identifying areas that could benefit from additional guidance from the European Commission, in particular on benchmarking.
Keywords: State aid, public procurement, pre-commercial procurement, R&D, in-house, public-public cooperation, negotiations, abnormally low tenders, services of general economic interest, SGEI, Altmark, Spezzino, Aanbestedingskalender
JEL Classification: H25, H40, H57, H71, K23, K42, O38
Suggested Citation: Suggested Citation