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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.

The Thin Red Line Between Existing and New Aid: The Buonotourist Case · Case T-185/15 Buonotourist Srl v European Commission · Annotation by Davide Guadagnino journal article

Annotation on the Judgment of the General Court (Second Chamber) of 11 July 2018 in Case T-185/15 Buonotourist Srl v European Commission.

Davide Guadagnino

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 192 - 197

This note offers a detailed overview on the Buonotourist Case (T-185/15), where the General Court confirmed Commission Decision 2015/575 ordering the recovery of the beneficiary’s extra compensation regime. It provides an in-depth analysis of the application of Regulation (EC) 659/1999, highlighting the procedural and substantive aspects relating to the notions of ‘existing aid’ and ‘new aid’. First, the note provides a description of the background to the dispute, focusing on the compensation granted to Buonotourist Srl for the costs occurred in the fulfilment of its public service obligations, as well as the related Commission Decision. Then, the Court’s reasoning is underlined, namely the assessment of the compensatory regime in the light of the exemption established under Article 11 of Regulation (EEC) 1191/69 and the Altmark judgment. The annotation highlights the controversial aspects of the measure, such as the ex post calculation of the compensation and the absence of unilaterally imposed public service obligations, which led to its classification as ‘new aid’. Finally, the author’s opinion is given, focusing on the nature of public service obligations and the applicability of Article 93 TFEU in the case at hand. Keywords: Public transport; SGEI; Compensation; Altmark; New aid.

Support for Services in the Lithuanian Electricity Sector · Case C-706/17 Achema · Annotation by Lina Barauskaitė journal article

Annotation on the preliminary ruling of the Court of Justice (Fourth Chamber) of 15 May 2019 in Case C-706/17 AB Achema, AB Orlen Lietuva and AB Lifosa v Valstybinė kainų ir energetikos kontrolės komisija, Lietuvos Respublikos energetikos ministerija, UAB Baltpool

Lina Barauskaitė

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 352 - 358

On 15 May 2019, the Court of Justice of the European Union (the CJEU or the Court) rendered a landmark state aid preliminary ruling where it assessed the Lithuanian public interest services (PIS) support measure provided to certain Lithuanian electricity producers. The measure was never notified to the European Commission and was subject to number of court disputes at the national level. The ruling confirms that the PIS support in the electricity sector constitutes State aid. In particular, the Court confirms that PIS funds can be regarded as State resources, since their life cycle (collection, administration and distribution) are strictly regulated and remains under the control of the Lithuanian State. PIS funds are also intended to finance certain services in the electricity sector, constituting a selective advantage. Moreover, due to characteristics of the Lithuanian electricity market, such as existing interconnectors and European Union electricity market liberalisation, PIS scheme is also liable to affect trade between the Member States and distort competition. Finally, the Court also expressed its doubts whether PIS should be defined as service of general economic interest (SGEI). According to the Court, the requirements for SGEI existence are not met. Keywords: Energy; Electricity; State resources; Imputability; Effect on trade; Distortion of competition; SGEI.

Public Aid to Airports as a Compensation for the Provision of Services of General Economic Interest journal article

Michele Giannino, Federich Romby

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 338 - 352

The purpose of this article is to provide a comprehensive review of the European Commission’s approach in assessing whether compensation awarded to airports for the provision of Services of General Economic Interest (SGEIs) complies with the EU State aid rules. The article analyses the defensive strategies open for national authorities to claim that airports public service compensation packages are compatible with the internal market. In that regard, the article considers the Altmark doctrine and the compatibility conditions for the application of the SGEI exception in Article 106 TFEU. Then it critically compares the strong and weak points of each of these strategies and also dwells on which factors national authorities have to adduce to prove the compatibility of airport aid. Bearing in mind the difficulties for national authorities to satisfy all the conditions for the application of the Altmark doctrine, the article suggests that the SGEI exception should be the optimal strategy to obtain regulatory clearance of public service compensation to airport.

Does a Tender Exclude an Article 107(1) Advantage? journal article

An Investigation into the Different Approaches by the Court Of Justice and the European Commission

Cees Dekker

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 387 - 398

This article examines for which type of transactions the use of a competing, transparent, non-discriminatory and unconditional tender procedure excludes the provision of an advantage and for which type of transactions this is not the case. In answering that question, it will be discussed whether the found distinction can be logically explained and criteria will be developed in accordance with which transactions can be distinguished for which a tender procedure will exclude State aid and for which it will not. Finally, suggestions will be given on how the framework of assessment could be made more consistent. Keywords: Advantage; Public Procurement; SGEI.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ The Altmark Case Revisited: Local and Regional Subsidies to Public Services journal article

Erika Szyszczak

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 395 - 407

The evolution of the State aid rules has made incursions into the sovereignty of the Member States to identify, fund and operate public services (SGEI). This sensitive issue tends to be managed by the European Commission with few cases brought before the national courts or referred to the CJEU. Nevertheless, national courts may be faced with a growing number of challenges in understanding and applying the European Commission policy and the European Courts’ case law in this area. The article provides an overview of some of the recent policy developments and case law to highlight the legal complexities of applying State aid to public services. Keywords: SGEI; Altmark; Public Services; National Courts.

France/SNCM v European Commision  ∙ Cases T-366/13 and T-454/13 ∙ Annotation by Adrien Giraud journal article

Adrien Giraud

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 482 - 486

On 1 March 2017, the General Court confirmed a decision by which the European Commission ordered France to recover €220 million from SNCM. In practice, the judgment has little consequences because of SNCM’s bankruptcy. From a legal standpoint however, the judgment is significant because it refuses to endorse the Commission’s thesis according to which Member States must in all cases evidence a market failure in order to correctly define a SGEI. In other words, the Commission attempted to increase the scope of the control it performs on the definition of SGEIs and the GC – as it has sometimes in the past – refused to condone this approach. Keywords: Altmark; SGEI; Market Failure; Public Service.

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