120 COMPETITION LAW IN TOURISM under the GBER also for touristic development measures, and there was no need to notify them. This development is even more conspicuous after 2014 and the adoption of the second GBER35. Since then, more than 96% of the Member States’ new measures are granted36 under the GBER. This is why the correct application of the GBER is essential in the current State aid regulatory setup. Otherwise, the Member States risk granting incompatible aid, to be recovered fromthe beneficiaries and to cause severe problems for the undertakings concerned. Against this context the landmark judgment in the case Dilly’s Wellnesshotel37 can be mentioned, which was about an energy tax rebate38. Dilly’s Wellnesshotel applied for an energy tax rebate, but the tax authority denied the application as, due to the modification of the Austrian law, the rebate was only open for undertakings active in the productive sectors, but not for undertakings providing services. The applicant appealed and, after several instances, at the National Courts, a Higher Court decided that the applicant was entitled to the rebate. At the national level, a final question emerged: even if the applicant was entitled to apply for the tax rebate, was national law in line with the relevant GBER rules in force at that time (Regulation No. 800/2008/EC)? The doubts emerged at the National Court given that the Austrian law was not compliant with some of the general requirements of the GBER39. The Court of Justice analysed the first question of the National Court: can State aid be granted under the GBER without having a reference in the national law on the GBER and its publication on the Official Journal of the European Union40 if this is a general, formal requirement under the GBER? 35 Commission Regulation (EU) No. 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (OJ L 187 26.06.2014, p. 1). 36 See the conclusions of the recent State aid Scoreboards. 37 Judgment in case C-493/14 Dilly’s Wellnesshotel GmbH v Finanzamt Linz (ECLI:EU:C:2016:577). 38 Previously, the Court of Justice in the preliminary ruling procedure C-143/99 Adria-Wien Pipeline (ECLI:EU:C:2001:598) decided that the tax rebate was selective and hence constituted State aid. 39 First, the national legislation contains no reference to Regulation No. 800/2008 or the publication referenced in the Official Journal of the European Union. Secondly, although Article 9(1) of that Regulation provides that a summary of the information regarding the aid measure at issue is to be forwarded to the Commission within 20 working days ‘following the entry into force of an aid scheme’, in the present case the summary was forwarded out of time. Thirdly, the referring court points out that the text of the aid scheme at issue was not published on the Internet under Article 9(2) of Regulation No. 800/2008 since the Internet address notified to the Commission did not – and still does not – enable access to the text concerned. 40 The Court of Justice, in agreement with the Advocate General, explains that this is needed for “the recipients, and their competitors, to understand the reasons why that measure may be implemented even though it was not notified to the Commission or authorised by it. Such a reference thereby enables not only the Commission to review, but also third parties to be informed of, the proposed aid measures, so that they may exercise their procedural rights”.
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