Marek Rzotkiewicz

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 310 - 315

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.

Anne Louise Bengt Jespersen

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 458 - 469

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.

Anna Nowak

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 212 - 221

The evidence requirements in the State aid compatibility assessment are a highly important and practical issue, which however has not been properly discussed until now. Indeed, the relevant provisions of the notification forms and of the acts of soft law do not give clear guidance as to the evidence requirements in the State aid procedure. Furthermore, the Commission is very indulgent towards the evidence provided by the notifying States, especially in the preliminary examination, and thus the evidence requirements are low. Such low evidence requirements do not properly secure the standard of ‘serious doubts’ necessary to open the formal investigation, and increase the risk of errors in State aid decisions. On the other hand, the possibility to tighten up the evidence requirements is limited, due to the ex ante character of State aid control. Keywords: Evidence; procedural law; compatibility assessment.