The Use of Tender Procedures to Exclude State Aid: The Situation under the EU 2014 Public Procurement Directives
There is a longstanding presumption, and the official position of the European Commission, that the award of a contract in compliance with the EU public procurement directives will not prima facie raise issues of State aid. The presumption has been criticised, particularly in light of the most recent procurement directives allowing for increased flexibility and negotiations. This article will analyse whether the new EU 2014 public procurement directives pose any threats to the State aid rules. It will critically examine the more flexible procedures provided for in the new directives, including the enhanced space for the application of qualitative and non-economic factors. The analysis will first focus on the discretion placed at the hand of the contracting authority, and the possibility for use of negotiations and discussions. Secondly, specific risks related to the new innovation partnership and social and environmental criteria will be examined. This paper reaches the conclusion that the new public procurement package poses significant threats to State aid rules, which could amount to competition distortions in the internal market.
Keywords: Tender Procedures; State Aid; Competition Distortions; Innovation Partnership; Social and Environmental Criteria.