TOURISM AND STATE AID 119 Both SNCM29 and France30 went to the General Court, asking for the annulment of the Commission’s decision, stating, among others, that the Commission erred in finding that the additional service was not an SGEI. In assessing this plea in law, the Court first emphasised that the need for an SGEI and market failure can change over time, and second, it highlighted that the Commission was right when separated its assessment of the basic and additional services. Moreover, the Court found that the Commission was right that due to the high degree of substitutability from the passengers’ viewpoint (demand side) and, due to the lack of evidence given by the French authorities, it found that the additional service was not within the public service remit. The Court clearly refused to define the SGEI only based on the broad discretion of the Member State and explained that a careful analysis of the market failure is necessary to define a service as SGEI31. Besides, the Court mentioned that the existing EU law on sea transport32 was also limiting the Member State’s freedom. Hence, the Court dismissed the SNCM’s plea33. The judgment gives us a clear picture as regards the general non-applicability of the SGEI State aid rules to primarily touristic services, even if they are similar to the services provided for the citizens as SGEIs, like in the SNCM case, as the basic and additional service. Although, the only difference was the period of the year when the additional ferries were in operation, the additional service was not characterised by the need from the society nor by market failure. 3.2. The judgment issued in the Dilly’s Wellnesshotel case, the interpretation of block exemptions If one browses the DGCompetition’s State aid case database and looks for notified aid schemes applied in the tourism sector, it is clear that their number has significantly dropped after 2008, due to the adoption of the first general block exemption regulation (GBER)34. The Member States used the options available 29 Case T-454/13 Société nationale maritime Corse Méditerranée (SNCM) v European Commission (ECLI:EU:T:2017:134). 30 France put forward its application in a separate procedure T-366/13 (ECLI:EU:T:2017:135). 31 See paragraph 125 of the SNCM judgment: The national authorities cannot dispense with the requirement to demonstrate the existence of a shortage of private initiative. 32 Council Regulation (EEC) No. 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7). 33 France’s pleas in the other procedure were dismissed as well. 34 Commission Regulation (EC) No. 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General block exemption Regulation) (OJ L 214, 09.08.2008, pp. 3-47).
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