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The Development of the Burden of Proof in MEOP Cases

Which Side of the Court and Whose Ball?

Anne Louise Bengt Jespersen

DOI https://doi.org/10.21552/estal/2019/4/4

Keywords: MEOP, burden of proof, requirement of evidence ex ante, allocation of burden of proof

The Market Economy Operator Principle (MEOP) is an essential tool in State aid law when determining whether a specific State measure confers an economic advantage within the meaning of Article 107(1) TFEU. Despite the many clarifications in the jurisprudence over the years, the applicability of the MEOP to specific economic transactions and the assessment of the economic rationality of a State measure continue to be subject to debate before the Commission and the EU Courts. Since the ruling of the Court of Justice in EDF, a recurring question in this debate has been the apportioning of the burden of proof in cases where the MEOP is invoked by the Member State and/or the alleged aid beneficiary. In more recent cases, the EU Courts have further developed the principles concerning the apportioning of the burden of proof as well as the standard of proof required on the part of the Commission and the Member States, respectively. This article analyses the approach of the Commission and the EU Courts with respect to the burden of proof in MEOP Cases prior to and after EDF, in SACE, Larko and Frucona Košice. Furthermore, the article reflects on the latest developments in the EU Courts’ Case law and points to a potential ambiguity therein.
Keywords: MEOP; Burden of proof; Requirement of evidence ex ante; Allocation of burden of proof.

Anne Louise Bengt Jespersen, Master of Laws from Copenhagen University and LLM in EU Law from College of Europe, Bruges. Works as a special advisor in State aid matters at the Danish Energy Agency. Formerly worked at Bech-Bruun law firm in Copenhagen and at the Court of Justice of the European Union as référendaire in the Chambers of Judge Bay Larsen.


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