The Legal Basis Which Will (Probably) Never Be Used: Enforcement of State Aid Law in a Public Procurement Context

This article analyses the provision in the Public Procurement Directive providing for the possibility to reject tenders as “abnormally low” when the tender is tainted by illegal State aid. Due to developments
in public procurement case law and generally in the Member States, where liberalisation leads to situations where public tenderers tender in competition with private tenderers, there is an obvious need
to control the use of illegal State aid to secure public contracts, to ensure that competition is not distorted. Two propositions are made: firstly, the current provision allowing for the rejection of tenders tainted by illegal State aid in the Public Procurement Directive is never going to be used by contracting authorities for economic reasons, political reasons and due to significant legal uncertainty with regard
to its application; and, secondly, if the provision were to be used, it would not in all cases ensure that tenders are not tainted by illegal State aid, because the wording of the provision focuses on the legal
granting of State aid, hence, misuse of State aid is not caught. Proposals are made for amendments.