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The Role of Procurement and SGEI After Altmark

  • Ian Clarke
Chapter
Part of the Legal Issues of Services of General Interest book series (LEGAL)

Abstract

This chapter examines the role of public procurement in the financing of Services of General Economic Interest (SGEI) following the Altmark judgment. The chapter explores the interplay between the application of State aid, service concessions and the use of procurement Directives in financing SGEI against a backdrop of public sector austerity measures and the privatisation of some public service obligations. The author charts how the Commission and the Courts have interpreted the landmark judgment both through case law and the application of soft law communications and Frameworks. The chapter focuses on the often complex issues that arise in interpreting the four Altmark conditions and the resulting stages in the evolution of the Commission’s guidance on the financing of SGEI, culminating in the 2011 ‘Almunia Package’. The author argues that whilst the Altmark judgment was a step in the right direction, it also added a level of ambiguity, particularly in the interpretation of the fourth Altmark condition where the CJEU adopted a hybrid public procurement/compensation mechanism for determining whether the financing of SGEI was State aid. Clarke argues that there is a case for contracting authorities to apply a public procurement process as a default position for the financing of SGEI unless specific exemptions apply. He suggests that this would reduce the level of control currently being applied by the Commission and reporting would be by exception.

Keywords

Public Procurement Procurement Process Procurement Directive Contracting Authority General Economic Interest 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

References

  1. Bartosch A (2002) The relationship of public procurement and state aid surveillance—the toughest standard applies? CML Rev 35:551–576Google Scholar
  2. Boyd A, Teal J (2004) Interpreting the Altmark decision, the challenges from a private practitioner’s perspective (McGrigors LLP)Google Scholar
  3. Hatzopoulos V, Stergiou H (2011) Public procurement law and health care: from theory to practice. In: Van de Gronden J, Szyszczak E, Krajewski M, Neergaard U (eds) Healthcare and EU Law. TMC Asser Press, The HagueGoogle Scholar
  4. Neergaard U (2012) The concept of SSGI and the asymmetries between free movement and competition law. In: Neergaard U, Szyszczak E, Van de Gronden J, Krajewski M (eds) Social services of general interest in the EU. TMC Asser Press, The HagueGoogle Scholar
  5. Nicolaides P (2003) Compensation for public service obligations: the floodgates of state aid. ECLR 24(11):561–573Google Scholar
  6. Santamato S, Pesaresi N (2004) Compensation for services of general economic interest: some thoughts on the Altmark ruling. Competition Policy Newsletter Number 1Google Scholar
  7. Szyszczak E (2011) Altmark assessed. In: Szyszczak E (ed) Research handbook on European State Aid. Edward Elgar, CheltenhamGoogle Scholar
  8. Szyszczak E (2012) Soft law and safe havens. In: Neergaard U, Szyszczak E, Van de Gronden J, Krajewski M (eds) Social services of general interest in the EU. TMC Asser Press, The HagueGoogle Scholar

Copyright information

© T.M.C. Asser Press, the Hague, the Netherland, and the authors 2013

Authors and Affiliations

  1. 1.School of LawUniversity of LeicesterLeicesterUK

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