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Update on the Autostrada Wielkopolska S.A. Case · Case C-933/19 P Autostrada Wielkopolska S.A. · Annotation by Marek Rzotkiewicz

Annotation on the Judgment of the Court of Justice of 11 November 2021 (Second Chamber) in Case C-933/19 P Autostrada Wielkopolska S.A. v European Commission

Marek Rzotkiewicz


Keywords: appeal, criterion of the private operator in a market economy, distortion of the evidence, substitution of grounds, reversal of the burden of proof

In cases before the EU Courts, parties who challenge the legal acts of EU institutions, eg Commission decisions, frequently raise many different pleas claiming violations concerning both EU law and the factual assessment. But it is for the EU Courts to adjudicate on those claims. When a party dissatisfied with the General-Court judgment appeals to the Court of Justice, in the appeal, the party cannot simply repeat the pleas raised in the action for the annulment before the General Court. An appeal to the Court of Justice must be limited to points of law and the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice. In State aid cases, case law frequently refers to the concept of the private operator to assess whether an action by public bodies can be compared to those of a comparable private operator, and if a State granted an advantage within the meaning of Article 107(1) TFEU. But the concept of the private operator has many variations which cannot all be reduced to the private investor or to private creditor formulas.

Marek Rzotkiewicz, Legal Advisor, Phd. The author works for the Faculty of Law and Administration at the University Cardinal Stefan Wyszyński in Warsaw, Poland. He represented the Republic of Poland before the General Court and the Court of Justice in the AWSA case. For correspondence: <>.


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