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

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

Cees Dekker

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 387 - 398

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.


The ‘Effect on Trade between the Member States’ Criterion: Is It the Right Criterion by Which the Commission’s Workload Can Be Managed? journal article

Cees Dekker

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 154 - 163

On 29 April 2015, the European Commission decided on several notified measures, ruling that in none of those cases State aid was involved because, as the accompanying press release stated, they were unlikely to have a significant effect on trade between Member States. According to the press release, the decisions give additional guidance on how to determine which cases should be assessed by the Commission and which should not, to allow the Commission to focus on cases with a larger impact on the internal market. A couple of decisions in 2016 followed the same line of reasoning. This article discusses the question of how these decisions relate to the Court’s case law and the Commission’s own practice regarding the criterion ‘effect on trade between Member States’ laid down in Article 107(1) TFEU. It will also explore to what extent these decisions give actual clarity on the application of this criterion and if there is a better alternative to reduce the workload of the national authorities and the Commission. Keywords: Interstate Trade; De Minimis; Appreciable Effect; Notice on the Notion of State Aid.

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