TOURISM AND STATE AID 125 made in the legal base was not substantial. On the one hand, the Court confirmed the General Court’s view that the changes in the modification of the national legal base were not purely formal or administrative because they affected the measure’s compatibility. On the other hand, the scheme did not expressly exclude projects already started before the application for the aid. On these reasons, the Court dismissed this plea. Additionally, the appellants stated that the incentive effect should be looked at in a formalistic way. The Commission’s approach, as endorsed by the General Court, created an irrefutable presumption, although it stemmed from the Commission’s soft law, which is not binding and other circumstances should have been looked at during the assessment. The beneficiaries were encouraged to start the works, the scheme was a copy of the previous scheme also approved by the Commission, and they had expectations that they would receive the aid. In the judgment, the Court made clear that even though the Region of Sardinia was an underdeveloped region under Article 107(3)(a) TFEU50, this fact in itself was not obliging the Commission to allow the granting of aid for undertakings in the region without incentive effect. The Court was explicit, saying that “[S]uch aid must thus be necessary for the attainment of the objectives specified in that provision, with the result that, without it, market forces alone would not succeed in getting the recipient undertakings to adopt conduct likely to assist attainment of those objectives”. Then it highlighted the importance of the incentive effect during the compatibility assessment by emphasising that the aid, which improves the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU, cannot be considered compatible with the internal market. Even in an assisted region, there is not an automatism to believe that any investment will contribute to and is necessary for the development of the region. Reference to the previous and similar scheme was also dismissed as irrelevant, suggesting that there is no “right for the aid” from the undertakings’ side. Lastly, the appellants tried to state that they had legitimate expectations51 because the Commission had approved the original scheme before the modification at the national level, and they had not been informed by the Italian authorities about these changes. The Region also argued that the recipients could 50 The article provides that aid to promote the economic development of areas where the standard of living is abnormally low or where there is severe underemployment may be considered to be compatible with the internal market. 51 Legitimate expectations are a valid ground under the State aid procedural rules to avoid the recovery of the aid.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==