138 COMPETITION LAW IN TOURISM would not be State aid73. In the same vein, the Commission generally considers the production and distribution of touristic information materials74 free of charge as a non-economic activity. Thirdly, the Commission believes that “general destination marketing, involving typically a promotion campaign, organisation of free information events and the creation of a general information website, also forms part of the dissemination of information to society at large and the promotion of a region or area and would therefore not qualify as an economic activity”. Although there is a thin line between being the State’s task to inform a wider audience about what is available and to carry out advertising activity on its own costs instead of touristic service providers; the latter would provide advantage to them. To make this separation clear the Commission also defined a limitation as regards public campaigns: “public task of providing information, such website should not include advertising facilities or booking features, which typically qualify as economic in nature. Moreover, activities carried out in the course of the general public information function should not be used to advertise one or more commercial products over other commercial products in a way that is not part of fulfilling that function. For example, activities should be aimed at providing information about local accommodation in a neutral way, rather than advertising certain accommodation or certain providers”. Turning to the cultural activities and national heritage, which can still attract many tourists, the Commission has highlighted again that the maintenance of these sites or provision of these activities is often not an economic activity. With reference to the 2016 NoA, the Commission showed its lenient approach towards these activities, by allowing less than 50% of the costs to be covered by ticketing, fees or other revenues without qualifying it as economic75. The Commission also reminds the reader that entities carrying out non- -economic and economic activities can receive State funding for their non73 See also point 207 NoA: “If, in cases of mixed use, the infrastructure is used almost exclusively for a non- -economic activity, the Commission considers that its funding may fall outside the State aid rules in its entirety, provided the economic use remains purely ancillary, that is to say an activity which is directly related to and necessary for the operation of the infrastructure, or intrinsically linked to its main non-economic use. This should be considered to be the case when the economic activities consume the same inputs as the primary non-economic activities, for example material, equipment, labour or fixed capital”. 74 The paper mentions examples like brochures, maps, train and bus timetables or any comparable forms of dissemination of information about cultural and touristic activities (including through a website or through free visits or tours). 75 Although, the Commission’s approach as regards treating even in case of mixed use the entity operating the infrastructure as a non-undertaking and not subject to State aid rules seems to be not confirmed by the Court of Justice. See the judgment in case C-74/16 Congregación de Escuelas Pías Provincia Betania v Ayuntamiento de Getafe (ECLI:EU:C:2017:496).
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