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

Leigh Hancher

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 470 - 488

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.



Long-term Contracts and State Aid – A new Application of the EU State Aid Regime or a Special Case? journal article

Leigh Hancher

European State Aid Law Quarterly, Volume 9 (2010), Issue 2, Page 18

I. Introduction This article examines two recent decisions adopted by the Commission against Poland and Hungary, condemning power purchase agreements (PPAs) as State aid within the meaning of Article 87(1) EC (now Article 107 TFEU). It will begin with a short overview of the competition concerns raised by long contracts, and will then briefly consider existing precedent. The two recent decisions are then analysed in greater detail. II. Recent Dev


Editorial journal article

Leigh Hancher

European State Aid Law Quarterly, Volume 4 (2005), Issue 3, Page 2

The upcoming decision of the U.S. Supreme Court in Cuno v. DaimlerChrysler is an excellent window through which to view tax subsidies provided by State and local governments in the United States and to contrast them to State aid in the European Union. The Cuno case, which has thrown the local public finance and business communities in the United States into an uproar, has called into question the widespread use by subnational governments of tax incentives



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