State Aid and Public Procurement in the EU
Full course description
The field of public procurement (the public purchase of goods, works and services) is one of the most important sectors of the single market for several reasons:
First, it affects a substantial share of world trade, amounting to 1.3 trillion euros per year and representing almost one fifth of the Union’s GDP. This means that in the European Union public procurement procedures are extremely important for the development of the Union’s trade policy.
Secondly, public procurement is an area that involves both the public and the private sector which makes it relevant for all sectors of the economy. Indeed procurement procedures aim to open public markets and to increase competition between private parties.
Thirdly, while public procurement rules find that legal basis in the articles on free movement, they are highly linked to competition law as well. Public authorities may abuse their dominant position at the demand side of the market, economic operators may collude and granting a public contract to a certain economic operator may quality as State aid if certain conditions are fulfilled. For this reason, studying the link between these area of law is of high importance.
Fourthly, public procurement procedures are increasingly used by public authorities to reach goals that are not necessarily ‘economic’ in nature, such as green and social objectives. The influence of procurement on sustainability should not be underestimated.
During the course ‘State aid and Public Procurement in the European Union’ students will study the above mentioned aspects and will focus on the links between procurement and competition law, and more specifically State aid law. The course will first present the two fields separately from different angles and will then reflect on the important underlying relationship.
Hence, the Master Course on State Aid and Public Procurement offers EU and non-EU students a thorough understanding of EU public procurement law and State aid rules. The course is composed of three layers:
1. The course will situate State aid not only as part of EU competition law but will also deal with the economic rationale of State aid. Regional aid, the limits of State aid and procedural aspects of State aid will be discussed. Students will be provided with an understanding of EU legislation and case law on State aid and special attention will be provided to the balancing test.
2. Public procurement will be identified as an element of the construction of the internal market. The different steps and aspects of procurement procedures will be discussed. The notion of contracting authorities will be explained and emphasis will be put on how procurement can contribute to achieving sustainability goals and innovation. Enforcement issues will be covered as well.
3. Competition law, including State aid law, and public procurement law are looked at as related fields of law. As public authorities generally pay money to economic operators that are selected by a procurement procedure, the risk exists that compensation paid will be qualified as State aid. While the EU legislative framework on public procurement aims to avoid distortions of competition, one should be wary that public procurement procedures are not used to circumvent State aid rules. The course hence focuses on the link between State aid law and public procurement. The course also zooms in on the link between public procurement and another branch of competition law, namely article 101 TFEU which forbids collusion by members of a cartel. It will be discussed whether transparency requirements in public procurement procedures may facilitate collusion and impair free competition.
Course objectives
This Master Course provides students with relevant knowledge in the fields of public procurement law and State aid law and helps them to understand their underlying relationship, specifically in the light of promoting competition. The course ensures that students have a thorough understanding of the rationale of procurement procedures, are able to determine whether the award of a procurement contract can represent (incompatible) State aid and whether financing of services of general economic interest may confer an economic advantage despite the application of the procurement Directives.
The course aims to provide students with:
- in-depth knowledge and up-to-date knowledge of State aid law and public procurement law
- excellent understanding of their interaction
- knowledge about the interaction between EU law and national law with regard to State aid and public procurement
- the tools to apply knowledge and understanding of the (political) context in which these areas are shaped, applied and enforced
- analytical skills so that they can identify and solve concrete/complex problems that arise in the application or enforcement of State aid law and public procurement law
- the ability to translate knowledge into sound legal arguments or own legal points of view relating to the fields of State aid law and public procurement law and their interaction
- the ability to develop their own views or position and to express their legal arguments clearly, both orally and on paper and in proper legal English
- the techniques legal experts need as regards the gathering, selecting, analyzing, interpreting and synthesizing information from primary sources of EU and national law
- the ability to deliver legally sound, well-researched papers
- an open-minded and critical and scientific attitude
Prerequisites
None
Recommended reading
Determined on a yearly basis due to the many legislative changes in these fields and the modernisation packages.