01260182 - EU Public Contracts, Procurement and State Aid Law

The aim of this course is to give insights into some of the public law rules which impact strongly businesses. Of course, many public rules, i.e. rules regulating governmental bodies and public authorities produce effect on firms as well as on citizens (such as the Administrative Procedure Act in the USA). But two sets of rules have a more direct effect since their rationale is based on the principle of equal treatment of economic operators to the point that academic spheres and law firms sometimes refer to them as ‘public business law’.

The first set of rules deals with public contracts law, also known as government contract law. The rules on the performance of these contracts vary greatly from one jurisdiction to another, including within the two legal worlds (common law countries, civil law countries). While English law limits the adaptation of the rules applied to private parties, French law has developed a legal framework which partially derives from the core principles of contract law, especially from the sanctity of contract principle (Part 1.A).

But when it comes to the award of some of public contracts, such as public procurement contracts, EU law has long set a range of detailed rules in order to ensure that the principle of free movement of goods and services is secured. Initially based on the search of the most economically advantageous offer, EU law now authorises the use of public procurement contracts and concession contracts in order to promote horizontal objectives such as green and social considerations, SME’s or the fight against corruption. These new objectives may cause challenges to the competition principle (Part. 1.B).

The second set of rules deals with the award of State aid to firms. EU law has again long decided to constraint the possibilities for public bodies to help firms so as to enforce fair competition but admits some exceptions. The principle of incompatibility of State aid to firms not only means that the exceptions are to be interpreted strictly, it also means, in the framework created from the very beginning of the European Union, a centralized review by the European Commission, while Member States have a limited role. In other words, EU law put in place both substantive (Part. II.A) and procedural rules (Part. II.B) when it comes to State aid. This course will mainly focus on EU law with a few looks at comparative law and international law.

3 credits or 1.5 US Crédits