The Commission’s Modernization Agenda for Procurement and SGEI

This paper focuses on the recent novelties introduced by the ‘Almunia’ Package in the regulation of activities at the intersection of the EU rules on State aid, public procurement and the financing of SGEIs. Taking the uncertainties left by the fourth Altmark condition as the point of departure, this paper describes and critically appraises the position of the European Commission regarding the use of procurement procedures as a device to exclude the existence of State aid or, in case it exists, to contribute to its compatibility with the internal market and, at any rate, as a mechanism of control of contracting entities’ market behaviour. This paper also stresses that there may be a disconnection between the two legs of the modernisation agenda, in that the reform of public procurement rules currently underway may diminish the effectiveness of the recent SGEI ‘Almunia’ reform or, in some instances, even be in frontal clash with some of its basic assumptions — which may call for a major revision of a system of oversight of public expenditure that is in crisis.