Extra on the Fee’s responsibility to evaluate State assist measures’ compatibility with EU procurement legislation — AG Medina Opinion in Paks II (C-59/23 P) — The right way to Crack a Nut – Cyber Tech

The extent and limits to the Fee’s responsibility to evaluate the compatibility of State assist measures with different guidelines of EU inside market legislation, and public procurement guidelines particularly, continues to warmth up (see earlier remark right here). Based on the Court docket’s press launch, at this time’s Opinion of AG Medina in Austria v Fee (Centrale nucléaire Paks II), C-59/23 P is certain to push for additional clarification — or give one other alternative to the Court docket to fudge the problem.

The dispute arose within the context of Hungarian assist for the renovation of a nuclear plant, which resulted within the direct award of a contract to a Russian provider in accordance with an settlement between Russia and Hungary on cooperation on the peaceable use of nuclear vitality—and in a context the place Russia additionally agreed underneath that settlement to offer Hungary with a State mortgage with a view to finance the brand new reactors.

So that is very a lot a case of a procurement offset and in opposition to a clearly delicate geopolitical background, however the level of legislation at its core is of broad significance for extra ‘run of the mill’ State assist + procurement circumstances.

Because the press launch stresses,

Based on [AG Medina], … the Fee, when assessing the help at difficulty, ought to have examined whether or not the direct award to [the Russian supplier] of the contract for the development of the brand new reactors is appropriate with the European Union’s provisions on public contracts.

That award was in reality a facet of the help which had an inextricable hyperlink with that assist. Based on the Advocate Basic, an inextricable hyperlink of that sort exists with regard to elements or situations that are crucial for the attainment of the article of the help or for its functioning, with out which the deliberate State intervention can’t obtain the goals that it pursues. In such a state of affairs, the Fee is required to bear in mind, in assessing the compatibility of State assist with the interior market, a doable infringement of provisions of EU legislation apart from these relating to assist.

Let’s see what the Court docket makes of this, and the way a circle is squared if it decides to maneuver past the confused and complicated stance it has taken on the problem to date.