122 COMPETITION LAW IN TOURISM Against this Commission decision 59 applications were submitted to the Tribunal (currently called General Court). From these, a couple of “test-cases” were selected and joined42. The General Court dismissed these applications in their entirety as unfounded. Some applicants appealed against the judgment issued at first instance, and it was for the Court of Justice to take the final stance on these questions and provide a very useful summary on several essential questions in the field of State aid43. The applicants first stated that the additional measure was an existing aid since it was originally introduced in 1972 and it was a continuous programme. Consequently, the ten year prescription period has elapsed, and no recovery can be ordered from the beneficiaries. The Court dismissed these pleas as the original programmes were suspended; hence the new one introduced in the 1990s cannot be considered as their successor and qualified as existing aid. Then, the applicants argued that the measure was not State aid, just a compensation for the additional costs or disadvantages of the beneficiaries contributing to the Italian employment policy objectives and therefore, they have not received an advantage in the sense of Article 107(1) TFEU. They also emphasised that undertakings operating on islands face additional costs compared to undertakings active on the mainland, which was disregarded during the procedures. The Court explained that any State measure, which confers an economic advantage, not obtainable at the market fulfils the criteria of advantage under Article 107(1). State aid law does not judge measures by their form or objective but by their effects. From this follows that the status or economic circumstance of certain entities is not a valid argument when the impact of a State measure is assessed44. Even if the measure aims to create similar conditions for the undertakings as compared to undertakings in the other Member States, this cannot preclude that it confers an advantage. The Court also confirmed that the measure could not be analysed as the application of the market economy 42 Joined Cases T254/00, T270/00 and T277/00 Hotel Cipriani and Others v Commission (ECLI:EU:T:2008:537). 43 The judgment in cases Comitato “Venezia vuole vivere” (C-71/09 P), Hotel Cipriani Srl (C-73/09 P) and Società Italiana per il gas SpA (Italgas) (C-76/09 P) v European Commission (ECLI:EU:C:2011:368). 44 The only exemption to this approach can be found in the case for compensation of the additional costs of the provision of a service of general economic interest, but even there the Court of Justice has defined four conditions to exclude the presence of advantage of a compensation. See the judgment issued in case C-280/00. Altmark Trans (footnote 22).
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