205However, it should be observed that that argument is at variance with the case-law set out in paragraph 139 above. In accordance with that case-law, the burden of proving that the conditions for applying the private creditor test have been fulfilled is borne by the Commission. The Commission cannot discharge that burden of proof merely by making, with regard to the assessment of the conditions for applying the private creditor test, mere assumptions which are not substantiated to the requisite legal standard.
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