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The Role of Presumptions and the Burden of Proof in Recent State Aid Cases – Some Reflections

DOI https://doi.org/10.21552/estal/2019/4/5

Leigh Hancher


Until relatively recently, only a handful of State aid cases raised the question of who should discharge the burden of proof. In the past twelve months the issue has begun to surface more regularly. This article examines the role of presumptions in understanding how the burden of proof is allocated in State aid cases before the European courts. Presumptions are a well-established tool in EU competition law. In theory it is for the party alleging that a State aid has been granted — usually the Commission — to show that the State measure confers a selective advantage on the beneficiary. Depending on what ‘hat’ the Member State is wearing when it confers a benefit, the evidentiary burden may shift back to itself to rebut a presumption as to how it has or intends to intervene. This contribution examines the role of presumptions and the allocation of the burden of proof depending on whether the State claims that it acts as a market investor, whether it exercises a public prerogative or whether it arranges the provision of services of general economic interest. Finally, the article briefly considers the burden of proof on third parties, especially in cases where the state authorities have not actively engaged in the rebuttal of a presumption by the Commission.

Leigh Hancher is Professor of European Law, Tilburg University, Part-time professor of European Energy Union Law, FSR/RSCAS/EUI, Florence, and Special Counsel at Baker Botts LLP, Brussels.

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