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The Notice on the Notion of State Aid and Public Procurement Law

DOI https://doi.org/10.21552/estal/2016/4/4

Grith Skovgaard Ølykke


The Commission Notice on the notion of State aid includes elaboration on the relationship between State aid law and public procurement law. To begin with, the article examines some of the reasons why the relationship between State aid law and public procurement law is surrounded by legal uncertainty. Then the elaborations made in the Notice on the notion of aid concerning the relation between the two areas of law are analysed and discussed, in particular, first, the question whether adhering to the procurement procedures laid down in the public procurement directives will eliminate the risk of granting State aid and, second, the issues rising from State aid control of in-house situations. It is concluded that even though the Notice on the notion of aid brings some needed clarity that fosters coherence between State aid law and public procurement law, the existing legal uncertainty is not even remotely evaporated.
Keywords: Notion of Aid; Public Procurement Law; In-House Award; Undertaking; Distortion of Competition; Legal Uncertainty.

Associate Professor, Copenhagen Business School. The author has already published a piece on the Notice on the notion of aid which emphasises its implications to public procurement officials and lawyers in a recognised public procurement journal; see GS Ølykke, ‘Commission Notice on the Notion of State Aid as Referred to in art. 107(1) TFEU—is the Conduct of a Public Procurement Procedure Sufficient to Eliminate the Risk of Granting State Aid?’ (2016) 25(5) PPLR, 197. The present article relies on, develops and extends the arguments made in that article and is specifically intended for a State aid audience, rather than a public procurement audience. DOI: 10.21552/estal/2016/4/4

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