Towards a clearer interaction between the State Aid

Towards a clearer interaction between the State Aid rules and the rules on Public Procurement Global Competition Law Centre Bruges 30 September 2011 Tanja Struve German County Association Council of European Municipalities and Regions Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

Public Procurement and the Altmark judgement Fourth Altmark criterion • Social, green and innovative considerations will replace the lowest price award („the least cost for the Community“) • CEMR demand: no binding criteria which would overload the procurement procedures and create even more bureaucracy and administrative burden for the awarding local authorities • Local authorities should decide within the principle of local self government - as already currently applicable - wheather to take into account these considerations or not. Question: By using social, green and innovative criteria do local public authorities increase the risk of granting State Aid? Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

Public Procurement and the Altmark judgement Fourth Altmark criterion • The required comparison analysis by PP procedure will lead to more PP tendering procedures • Problem: Within the relevant market there is often no other operator offering the needed service of general economic interest • CEMR demand: Rejection of the comparison analysis by PP procedure because of the excessive administrative burden for local authorities without any added value in theses cases • The possibility to entrust an undertaking with SGEI without PP procedure must always be available! Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

De-minimis Regulation for SGEI Restriction to Local authorities of max. 10. 000 inhabitants • The threshold for the exemption is arbitrary and irrelevant and in any case too low and consititutes therefore discrimination between different local authorities (cities, counties, municipalities) • The number of inhabitants does not necessarily reflect the importance of the local authority when buying services • Internal administrative structures fall within the competences of the member states Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

De-minimis Regulation for SGEI Restriction to Local authorities of max. 10. 000 inhabitants • CEMR demand: contradiction hindering the increasingly needed public cooperation particularly in rural areas with increasing demographic difficulties • ECJ: „a public authority has the possibility of performing the public interest tasks conferred on it by using its own resources, without being obliged to call on outside entities not forming part of its own departments, and that it may do so in cooperation with other public authorities” (Coditel C-324/07; COM vs Germany C-480/06) Question: How does the Commission ensure in the future reform of PP that these cooperations will not be hindered by State Aid (and also PP) rules? Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

De-minimis Regulation for SGEI Increase of the thresholds up to 150. 000€/tax year • The raising of the thresholds which will allow for a differentiation between large network SGEI and local minor SGEI is positive. • Demand: Possibility of cumulative dispensation to 3 years period (at least 450. 000€) in order to allow more flexibility for smaller investments. • CEMR demand: Within the PP reform process, thresholds should also be increased in order to cover only contracts with relevant impact on the internal market, current thresholds particularly for services and goods are too low. Question: How will the Commission create consistancy in terms of thresholds in the future PP reform? Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

General Block Exemption Decision The reduction of threshold from 30 million to 15 million is not consistant with the differentiation made between large network SGEI and local SGEI. Positive: exemption of new categories of social services from the notification requirement irrespective of the amout (health services, child care, access to the employment market, social housing, care and social inclusion or vulnerable groups of population). CEMR demand: this list of exempted categories should be extended to the services which are listed in Annex II part B of the Directive 2004/18/EC in order to be compatible and coherent (in Annex II B ambulance services should be added as predominately health services) Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

Conclusion • State Aid rules and PP rules have a common aim and should therefore be consistent and not contradict each other. • State Aid rules and PP rules should be synchronised and allow public authorities and local practitioners to apply them in a context of legal certainty. Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

Thank you for your attention! Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions

Contact: Tanja Struve Rechtsanwältin German County Association Deutscher Landkreistag Brussels Office Europabüro Avenue des Nerviens 9 - 31 B - 1040 Brussels Tel. : +32 (0) 2 740 16 - 32 Fax: +32 (0) 2 740 16 - 31 E-Mail: Tanja. Struve@eurocommunalle. org Website: www. Landkreistag. de Conseil des Communes et Régions d'Europe Council of European Municipalities and Regions