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Part II The Notion of State Aid, 6 Public Procurement and State Aid

Viktor Kreuschitz, Hanns Peter Nehl

From: State Aid Law of the European Union

Edited By: Herwig C. H. Hofmann, Claire Micheau

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 15 January 2021

Public undertakings — State aid

This chapter examines the relationship between public procurement and State aid. The symbiotic relation of public procurement with State aid regulation reveals the commonality of features inherent to the notion of public sector. This notion, in its incarnations, is pivotal for the applicability of both public procurement and State aid regulation. The symbiosis of the two regimes also reveals the flexibility embedded in the public procurement acquis, which is translated as discretion conferred to contracting authorities to introduce public policy considerations in dispersing public services. In parallel to the flexibility of public procurement, State aid regulation projects flexibility either as regional development considerations, or as part of a national EU-wide industrial policy. On the other hand, the conceptual interrelation of public procurement with the financing of services of general interest reveals the policy and jurisprudence links between public procurement and State aid, which show that the two regimes are mutually exclusive.

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