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‘Reversed’, ‘Excessive’ or Misconstrued? The Controversy About the Burden of Proof in MEOP Cases journal article

Małgorzata Cyndecka

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 157 - 168

Following the landmark judgments in Ryanair of 2008, EDF of 2012 or ING of 2014, it is no longer disputed that one distinguishes between the applicability of the Market Economy Operator Principle (MEOP) and its application. Yet, one of the most relevant consequences of making that distinction - the allocation of the burden of proof - still raises controversy. When the GC annulled the Commission’s decision in EDF due to an insufficient and flawed assessment of the applicability of the MEOP, the Commission, EFTA Surveillance Authority (ESA) and AG Mazák argued that the GC erred in law by reversing the burden of proof. The same argument was raised by the Commission in Buczek Automotive of 2013. In Frucona Košice II of 2017, the Commission claimed that the GC created a new requirement imposing on the Commission an ‘excessive burden of having to seek all “imaginable” evidence and information’ when it verifies compliance with the MEOP. In all those cases, the CJEU disagreed with the Commission. In 2018, however, the EU Courts handed down judgments concerning the MEOP where the Commission’s line of argument was more successful. Most importantly, EDF, Larko and Duferco seem to have provided more clarity with respect to discharging the burden of proof when establishing the applicability of the MEOP and its application and, in particular, the Commission’s obligations in this regard. Given the importance of apportioning the burden of proof and the difficulties with that issue resulting from the distinction between the applicability and application, more clarifications from the EU Courts are very much welcome. Keywords: Applicability and application of the MEOP; Burden of proof; Scope of Commission’s obligations.


Once an Aid Recipient, Always an Aid Recipient? The Post-Crisis State Interventions in the Banking Sector and Beyond journal article

Małgorzata Agnieszka Cyndecka

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 192 - 203

One of the questions raised by the unprecedented state interventions in favour of banks that were hit by the financial crisis is whether the mere fact of having benefitted from aid in the past qualifies any future state measures granted to the same undertaking as aid. Given the number and importance of beneficiaries that received ‘crisis aid’ under article 107(3)(b) TFEU, this question merits a prompt answer. In terms of State aid law, it amounts to establishing the applicability of the Market Economy Operator Principle, MEOP. While the General Court (GC) ruled on consecutive state measures under Article 107(1) TFEU in the BP Chemicals case of 1998, recent case law has raised much controversy. This article attempts to clarify the implications of disregarding or misapplying BP Chemicals and the consequences of such practice to the MEOP while the CJEU is about to give its ruling in FIH, a highly debatable case on consecutive state measures in the banking sector. Keywords: Applicability and Application of the MEOP; Banking Sector; Consecutive State Interventions; BP Chemicals Formula; FIH Case.

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