State Aid and public procurement
Produced in partnership with CMS
State Aid and public procurement

The following Competition practice note Produced in partnership with CMS provides comprehensive and up to date legal information covering:

  • State Aid and public procurement
  • Legal framework
  • Notion of State aid
  • Key criteria
  • Commission Notice on the notion of State aid
  • The market economy operator test
  • Private vendor test
  • Private creditor test
  • Awarding of the SGEI in an appropriate tender procedure—Altmark criteria
  • Competitive procedures—open and restrictive procedure
  • More...

State aid and public procurement are areas of law that both have their own rules. Despite considerable autonomy and distinction, however, both areas significantly overlap.

Such overlaps must be taken into account especially by contracting authorities in connection with the award of public contracts. This Practice Note focuses on circumstances and conditions which the contracting authority should consider to limit the risks of masked granting of State aid in the process of awarding public contracts.

Legal framework

The EU legal framework for public procurement is outlined in two public procurement and one concession directives.

These EU Directives cover tenders that are expected to be worth more than a given threshold. The core principles of these directives are transparency, equal treatment, non-discrimination, open competition, and sound procedural management. They are designed to achieve a procurement market that is competitive, open, and well-regulated.

Opposite the public procurement directives, which EU Member States had to transpose into national laws, State aid law falls exclusively within the competence of the relevant EU authorities, without the EU member states having to, or more precisely being at all able to, transpose such legislation in any manner whatsoever. In practice, this means that answers to questions about State aid and how to prevent unlawful provision of such aid should be sought in EU legislation and the respective case law.

The legal basis on which all interpretations of

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