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.

Małgorzata Cyndecka

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 180 - 185

When the State grants an economic advantage to an undertaking, it may avoid triggering Article 107(1) TFEU by complying with the Market Economy Operator Principle (MEOP). Yet, if the State invokes the MEOP in the course of the administrative procedure, it must establish unequivocally and on the basis of objective and verifiable evidence that it acted as a rational, profit-oriented, prudent and well-informed private market operator would have acted in similar circumstances under normal market conditions. If the State provides such information, the Commission is required to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the beneficiary would manifestly not have obtained comparable facilities from a private operator. While granting an economic advantage to an undertaking in financial difficulties does not necessarily amount to aid, the State must prove that it properly took into account the additional risk involved in a given measure when it decided to implement it. Ignoring such signs of a firm being in difficulty as increasing losses, diminishing turnover or mounting debt is not in line with the behaviour of a prudent private shareholder and it questions the economic rationality of the State’s conduct. This may entitle the Commission to qualify a given measure as aid. Keywords: MEOP; burden of proof; prudent shareholder; firm in difficulties; State guarantees.

Adrien Giraud, Sylvain Petit

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 310 - 315

On 21 December 2016, in the Spanish fiscal aid cases, the Grand Chamber of the Court of Justice of the European Union struck down the General Court’s attempt of November 2014 to introduce an innovative interpretation of the notion of selectivity. Whereas the General Court had required the identification of a category of undertakings when a fiscal measure is potentially accessible to all undertakings, the Court of Justice adopted a rather conservative approach and merely restated its settled case-law. This case note analyses the law as restated by the Court and addresses some of the criticisms that have recently surfaced. Keywords: Fiscal Aid; Notion of Selectivity; Category of Undertaking; Discrimination; Burden of Proof.