TOURISM AND STATE AID 117 surprising that the Member States have often tried to claim that the public financing of certain touristic activities or services constitutes compensation for SGEI. Their reasoning behind this approach is, that compensation of the SGEI’s costs can be compatible with the internal market under Article 106(2) TFEU or under Article 93 in the transport sector, or even escape the qualification of State aid if the four conditions22 as set out in the famous Altmark-judgment23 are met. Moreover, even if there is a broad discretion at the Member State level, the SGEIs have to represent services that exhibit special characteristics as compared with those of other economic activities24. This means that SGEIs are characterised as a ‘particular public service task’. This implies the supply of services, which if it were considering its own commercial interest, an undertaking would not assume or would not assume to the same extent or under the same conditions25, but providing the service is in the interest of the community as a whole. The EU State aid jurisprudence and the Commission do not accept the presence of specific public service obligations concerning an activity which is already provided or can be provided satisfactorily and under normal market conditions. Such market conditions are price, objective quality characteristics, continuity and access to the service, consistent with the public interest, as defined by the State. The design of an SGEI has to be proportional to the needs of the citizens or community concerned. From these, two considerations follow: first, SGEI compensation and the qualification of SGEI require a market failure to be remedied by the State26; second, touristic services and development usually are not in the interest as the community or the citizens as a whole. Against this background, State aid law usually does not accept the financing of SGEI and Article 106(2) TFEU as a valid compatibility ground to finance measures in the touristic sector. 22 First, the recipient undertaking must actually have SGEIs to discharge, and those obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of SGEIs, taking into account the relevant receipts and a reasonable profit for discharging those obligations. Fourth, where the undertaking which is to discharge PSOs, in a specific case, is not chosen pursuant to a public procurement procedure making it possible to select the candidate capable of providing the services in question at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations. 23 The judgment in case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg v NahverkehrsgesellschaftAltmarkGmbH,andOberbundesanwaltbeimBundesverwaltungsgericht(ECLI:EU:C:2003:415). 24 SGEI notice, point 76. 25 SGEI notice, point 80. 26 See the judgment in case T-79/10 Colt Télécommunications France v European Commission (ECLI:EU:T:2013:463) paragraph 154.
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