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Examining direct effect of the foreign subsidies regulation's prior control system in public procurement
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1973-2937
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European journal of legal studies, 2025, Vol. 16, No. 2, pp. 9-26
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HELLENES, Mathias Trygve, STEGINK, Rens, Examining direct effect of the foreign subsidies regulation’s prior control system in public procurement, European journal of legal studies, 2025, Vol. 16, No. 2, pp. 9-26 - https://hdl.handle.net/1814/78204
Abstract
The article scrutinises whether the provisions of the FSR's prior control system in public procurement cases, specifically Articles 29(3), 29(4), and 32(1), allow for direct effect. The analysis reveals that while Articles 29(3) and 32(1) meet the criteria for direct effect by being sufficiently clear, relevant and unconditional, Article 29(4) does not due to its conditional nature and the centralised enforcement structure of the FSR. The article further discusses the implications of the European Commission's exclusive competence in enforcing the FSR, contrasting it with the decentralised enforcement in State aid law. The authors conclude that despite the FSR's divergence from State aid law, the direct effect of Articles 29(3) and 32(1) is essential to maintaining the effectiveness of the notification obligation and the standstill provision. The tension between the centralised enforcement system of the FSR and ensuring that the FSR is interpreted in light of State aid is most clearly illustrated by the question of whether the remedy of reimbursement has direct effect within the FSR. The authors acknowledge that the wording of Article 7(4)(h) indicates that direct effect is precluded, but nevertheless argue that in light of the practical need for such a remedy, illustrated by accrued experience within State aid law, the remedy of reimbursement should also have direct effect.
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Published online: 17 March 2025