124 COMPETITION LAW IN TOURISM recovery is to restore the situation ex–ante, and it is not a sanction. In the present case, the Commission could not conclude not to order recovery. There were no specific circumstances to give ground for this, especially as the aid was financing the operating costs of the beneficiaries. To sum up, the judgment is an eloquent explanation of the main principles of State aid policy, the role of the Commission and its compatibility assessment. It is also a good example that State aid law usually requires a strong connection between the objectives pursued by the aid and costs to be financed from public resources. It also shows how difficult it is to disregard the repayment of the aid, once the Commission concluded that it is incompatible with the internal market and granted in breach of the notification obligation. 3.4. The HGA judgment, the importance of the incentive effect A very similar judgment was issued concerning another Italian aid scheme, open for investments in hotels on Sardinia. Italy notified the scheme, and the Commission approved it (case N272/1998) in line with the regional aid rules in force at that time. The Region of Sardinia then adopted the national legal basis for the scheme, and the applicants started to apply for the aid. Shortly thereafter, the Region adopted a new legal basis with different conditions as procedural mistakes were discovered and the original one was not totally in line with the State aid requirements. The Commission started an investigation for the misuse of aid, then concluded that: first, even the modifications were not ensuring the compliance with State aid requirements and second, the Region also granted aid to projects which started before the application for the aid was submitted by the beneficiary, which is a violation of the incentive effect requirement. The Commission ordered the recovery of the incompatible aid, and a high number of beneficiaries brought actions for annulment of the Commission decision at the General Court, which were dismissed48. Most of the applicants appealed to the Court of Justice for the annulment of the judgment at first instance and still asked the annulment of the Commission’s decision49. In their appeal, the they argued that the measure was not a new aid, but an existing aid, as the Commission already approved it, and any alteration 48 The judgment in joined Cases T394/08, T408/08, T453/08 and T454/08 Regione autonoma della Sardegna and Others v Commission (ECLI:EU:T:2011:493). 49 The judgment in joined cases HGA Srl and Others (C630/11 P), Regione autonoma della Sardegna (C631/11 P), Timsas srl (C632/11 P) and Grand Hotel Abi d’Oru SpA (C633/11 P) v European Commission (ECLI:EU:C:2013:387).
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