144 COMPETITION LAW IN TOURISM These legal constraints can no longer be ignored by the sector due to the financial risk they entail for the airline that benefits from them. Following a presentation of the general principles applying to State aid, the present article will focus on the different legal options to grant such financial support to develop new routes at an airport and the conditions to ensure their legal compliance with the relevant EU framework. 1. GENERAL PRINCIPLES OF STATE AID 1.1. The notion of State aid When commercial incentives to airlines are granted by public authorities or undertakings that are controlled by the State (public airports, regional and local authorities, Chambers of commerce and so on), as well as funded by State resources, they have to be assessed under State aid rules. According to Article 107.1 TFEU “Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market”. A measure fulfilling the following four cumulative criteria constitutes State aid and may be prohibited: (i) the measure is decided by the State (or a region, county, municipality, state-owned undertaking, etc.) and financed by State resources; (ii) the measure confers an abnormal economic advantage in any form (capital injection, loan, guarantee, subsidy, discounts, etc.) to an undertaking; (iii) the measure is granted to one or several undertakings (selectivity criteria); and (iv) the measure distorts or threatens to distort competition and affects or threatens to distort intra-community trade. If one of these four conditions is not fulfilled, the funding at stake is excluded from the scope of Article 107.1 TFEU, not being, therefore, submitted to the constraints imposed by State aid regulation.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==