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Does a Tender Exclude an Article 107(1) Advantage?

An Investigation into the Different Approaches by the Court Of Justice and the European Commission

Cees Dekker


Keywords: Advantage, Public Procurement, SGEI

This article examines for which type of transactions the use of a competing, transparent, non-discriminatory and unconditional tender procedure excludes the provision of an advantage and for which type of transactions this is not the case. In answering that question, it will be discussed whether the found distinction can be logically explained and criteria will be developed in accordance with which transactions can be distinguished for which a tender procedure will exclude State aid and for which it will not. Finally, suggestions will be given on how the framework of assessment could be made more consistent. Keywords: Advantage; Public Procurement; SGEI.

Cees Dekker, Partner at Nysingh advocaten-notarissen N.V. and guest lecturer on State aid Law at the University of Amsterdam. A version of this paper was presented at the conference 'State Aid Control: Where Law and Economics Meet', organized by Prof. Dr. Caroline Buts and Lexxion Publisher, in cooperation with the Vrije Universiteit Brussel and E.CA Economics. Brussels, 5 October 2018.


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