34The applicant rightly argues that it is, in principle, for the Commission to provide proof, in the contested decision, both of the misapplication of the restructuring aid and the grant of new aid. It follows from the provisions of Article 88(2) and (3) EC that, if that is not established, the existing aid is covered by the earlier decision approving it and the new measures cannot be regarded as State aid within the meaning of Article 87(1) EC (see, with regard to the burden of proof in cases of misappropriation of previously approved aid, Joined Cases T-111/01 and T-133/01 Saxonia Edelmetalle and Zemag v Commission [2005] ECR II-1579, paragraph 86, and, with regard to the burden of proof in cases where new aid has been granted, Joined Cases C-324/90 and C-342/90 Germany and Pleuger Worthington v Commission [1994] ECR I-1173, paragraph 23). On the other hand, the burden of proof of the compatibility of aid with the common market, by way of derogation from Article 87(1) EC, is borne principally by the Member State concerned, which must show that the conditions for that derogation are satisfied.
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