140 COMPETITION LAW IN TOURISM As a safe solution, the Commission reminds Member State to the application of the de minimis regulation79. De minimis aid is not considered to have a distortive effect on competition or effect on trade between the Member States. Under the regulation, the Member States can grant 200,000 € per undertaking within three fiscal years, without any high administrative burden. The regulation is also clear that this threshold applies perMember State, therefore an undertaking having presence in the different Member States can apply for up to this amount multiple times. Conversely, the threshold is per undertaking and not per legal entity, meaning that a group of entities operating in the same Member State is subject to one single threshold of 200,000 €. The paper also refers to the theoretical possibility to make investments under market terms, and not conferring an advantage to the undertakings involved. The Market Economy Operator Principle (MEOP) is applied to establish whether an independent private investor, creditor, guarantee provider or other would have made the same decision as to the State under similar conditions. If the project or transaction would provide market-level revenue (also taking into account the risks), then the State is not conferring advantage and not providing State aid. Obviously, this assessment is also done case by case, but nothing prevents the Member States to use it if the financing of good touristic projects is considered. As an example, the Commission mentions the following: “a public authority could, for example, participate as an investor, also together with a private operator, to the setting up of a commercially run accommodation or holiday booking platform”. In the paper, the Commission also clears that, under the Altmark-judgment, the Member States can give compensation for the provision of SGEIs following certain conditions (see the analysis of the SNCM judgment above). After mentioning the wide discretion the Member States enjoy when defining SGEIs and that the EU institutions only check whether a manifest error is present if a service is defined as SGEI by a Member State. Nevertheless, the Commission also highlights that “such manifest error is present if a service is defined as SGEI that either (i) is not addressed to citizens or in the interest of society as a whole or (ii) where an activity is already provided or can be provided by the market under the same conditions.” In this respect, the Commission concludes that “many activities are provided by the market and that certain activities financed 79 Commission Regulation (EU) No. 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 TFEU to de minimis aid (OJ L 352, 24.12.2013, p. 1.).
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