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The Government as Purchaser: The MEOP Still Requires a Thorough Examination of All Relevant Circumstances · Joined Cases C‑331/20 P and C‑343/20 P Volotea SA, and easyJet Airline Co. Ltd v European Commission · Annotation by Cees Dekker and Ekram Belhadj Journal Artikel

Annotation of the Judgment of the Court of Justice (Second Chamber) of 17 November 2022 in Joined Cases C‑331/20 P and C‑343/20 P Volotea SA, and easyJet Airline Co. Ltd v European Commission

Cees Dekker, Ekram Belhadj

European State Aid Law Quarterly, Jahrgang 22 (2023), Ausgabe 1, Seite 95 - 100

Even where the government acts as the purchaser of services, an assessment of whether it has acted in accordance with the market economy operator principle requires an examination of all the relevant facts. The fact that the government acted through private companies, that the government pursued public policy objectives or that there was no tender procedure is not a reason to exclude the application of the market economy operator principle, the Court of Justice ruled in this case. The Court of Justice confirmed that the burden of proof as to whether the MEOP has been complied with and whether an advantage has been conferred on a company lies with the Commission.


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

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

European State Aid Law Quarterly, Jahrgang 21 (2022), Ausgabe 3, Seite 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.


Valencia Club de Fútbol: Every Advantage Has Its Disadvantage (and Vice Versa) · Case T-732/16 Valencia Club de Fútbol · Annotation by Doortje Ninck Blok and Gerard van der Wal Journal Artikel

Annotation on the Judgment of the EU General Court (Fourth Chamber) of 12 March 2020 in Case T-732/16 Valencia Club de Fútbol

Doortje Ninck Blok, Gerard van der Wal

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 2, Seite 284 - 291

The General Court handed down a judgement in 2020 in which it annulled the Commission’s Decision regarding State aid granted to Valencia Club de Fútbol through a €75 million (regional) government guarantee. The Commission qualified the guarantee granted by a financial entity under the supervision of the Regional Government of Valencia, intended to cover the bank loans to Fundación Valencia to enable Fundación Valencia to acquire shares in Valencia Club de Fútbol (the beneficiary according to the Commission and General Court), as unlawful state aid in the meaning of Article 107(1) TFEU. This annotation elaborates on two pleas brought forward by Valencia Club de Fútbol: (i) manifest errors of assessment in the characterisation of an advantage and (ii) manifest errors of assessment when calculating the amount of aid. The General Court considered that the Commission made an error of assessment when applying the market economy operator principle, where the Commission did not carry out an overall assessment. Furthermore, the Commission did not sufficiently support the finding that there was no market price for a similar non-guaranteed loan. In their conclusion, the annotators address the application of the Guarantee Notice by the Commission.


Let Down by the Facts: The General Court Annuls the European Commission Decision on Irish Tax Arrangement for Apple · Joined Cases T-778/16 and T-892/16 Ireland and Others v European Commission · Annotation by Veronika Korom Journal Artikel

Annotation on the Judgment of the General Court (Seventh Chamber, Extended Composition) of 15 July 2020 in Joined Cases T-778/16 and T-892/16 Ireland and Others v European Commission

Veronika E. Korom

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 2, Seite 277 - 283

The General Court's decision in Apple’s Irish tax case confirmed that the European Commission is competent to review national tax rulings for whether they confer a selective advantage on a tax payer. Further, the GCEU validated the legal tests on which the Commission relied in reaching its State aid decision. However, the GCEU found that the Commission had failed in its assessment of the specific facts of this case and in particular failed to show the existence of a selective advantage. It therefore annulled the Commission’s decision. Given that the GCEU ruled in favour of the Commission on virtually all points of law but censured the Commission on questions of fact, the Commission’s appeal to the CJEU is likely to face significant challenges on both admissibility and substance.


IFPEN: This is the End… of the French ‘EPIC’ State Aid Litigation Saga(s) · Joint Cases T-479/11 RENV and T-157/12 RENV IFPEN · Annotation by Jean-Alexandre Vaglio Journal Artikel

Annotation on the Judgment of the General Court (Eight Chamber) of 5 October 2020 in Joint Cases T-479/11 RENV and T-157/12 RENV French Republic and IFP Énergies nouvelles v European Commission

Jean-Alexandre Vaglio

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 1, Seite 108 - 113

The General Court finally closed the IFPEN saga with its judgment delivered on 5 October 2020 and which raised many interesting points. First, IFPEN was peculiar in the sense that, contrary to EDF and La Poste, it was an EPIC undertaking pursuing mainly non-economic activities. Second, this judgment enables the General Court to refine and illustrate the simple presumption defined by the Court of Justice in the La Poste judgment on its EPIC status. Finally, this case provides another reminder of the burden of proof resting on the Commission when it demonstrates the existence of an advantage and defines the conditions of compatibility of a State aid measure.


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

Leigh Hancher

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 4, Seite 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 Development of the Burden of Proof in MEOP Cases Journal Artikel

Which Side of the Court and Whose Ball?

Anne Louise Bengt Jespersen

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 4, Seite 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.


Assessing the Standard of Proof in Fiscal State Aid Journal Artikel

Red Card to the Commission

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 4, Seite 447 - 457

The General Court annulled the Commission’s Decision qualifying as State aid a tax regime granted by Spain to certain Spanish professional football clubs (namely, FC Barcelona, Real Madrid FC, Athletic Bilbao and Club Atlético Osasuna). The General Court took the view that the Commission had not proven that the tax regime had the effect of conferring an actual economic advantage on these four clubs. This judgment is highly significant because, without ruling on most of the substantive issues of the Case, it is the first time that criteria on the burden and standard of proof incumbent on the Commission are so clearly stated, particularly in the field of State aid. Moreover, this General Court’s approach is supported by recent and later Case law under which the Commission is required to carry out a complete analysis of all the factors that are relevant to the measure at issue. Keywords: Burden of proof; Standard of proof; Tax advantage; Football; Sports.


‘State’ Aid or Not – This Is the Question Journal Artikel

Philipp Werner, Marcello Caramazza

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 4, Seite 519 - 527

This article provides an overview of the interpretation by the Court of Justice of the European Union (CJEU) of the criterion of ‘State resources’ as an essential element for the definition of State aid provided under Article 107 (1) TFEU. In 2019, the CJEU issued four important judgments (ENEA, EEG, Tercas and Achema) towards clarifying when a measure can or cannot be considered as implemented using State resources, and the elements that the Commission can rely upon to prove the public nature of the resources. In light of earlier Case law in interpreting this criterion (in particular, the landmark Stardust Marine, PreussenElektra, and Pearle Cases), the authors analyse the new judgments and the CJEU’s efforts to strike a balance between the wide interpretation of the concept of ‘State resources’, encompassing public funds and contributions from private actors, and the Commission’s burden of proof in imputing monies to the State.