Enforcement of State Aid Rules for Services of General Economic Interest before Public Procurement Review Bodies and Courts

One of the criticisms against the new rules applicable to the granting of State aid to finance the provision of services of general economic interest (SGEI) in the ‘Almunia package’ is that enforcement is likely to be their weakest point. Similarly, in the more general setting of the ‘private’ enforcement of State aid rules, the 2006 Study on the Enforcement of State Aid Law at National Level recommended that the European Commission create a common minimum standard of remedies applicable in all EU jurisdictions, stressing that ‘one possible means of creating such a standard would be to adopt a remedies directive for State aid cases, which could be modelled on the remedies directive for procurement cases’. Building upon these considerations, the extent to which the existing remedies within the system for the enforcement of EU public procurement rules provide an effective platform to enforce EU State aid rules, particularly those for the financing of SGEI, before public procurement review bodies and courts is assessed. The paper describes the main groups of cases where public procurement litigation ‘phagocytises’ State aid considerations. It then proceeds to explore the viability, from an EU law perspective, of configuring public procurement review bodies and courts as ‘State aid courts’ for the purposes of the simultaneous enforcement of both sets of rules in a single setting of ‘private’ litigation. It also submits that using the public procurement system in this way provides effective remedies for the enforcement of the Almunia Package for the financing of SGEI, and adds consistency in terms of harmonisation of the material rules to be applied.