146 COMPETITION LAW IN TOURISM of Articles 107 and 108 of the Treaty, known as the European General Block Exemption Regulation (GBER)3 thus allows the Member States to grant the categories of aid covered (regional aid, aid to SMEs, aid for local infrastructure, social aid and so forth) without prior notification to the European Commission. In 2017, the European Commission widened the scope of the GBER to include investment and operating aid to regional airports4. Start-up aid to airlines is still not covered by the GBER and must thus be formally notified to the European Commission. Furthermore, the 20 December 2011 European Decision on the application of Article 106.2 of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation, granted to certain undertakings entrusted with the operation of services of general economic interest (“SGEI Decision”)5, allows the Member States to grant under strict conditions compensations to specific undertakings to cover the costs of public services they have to provide. It also applies to the air transport sector both for public service compensations, granted to airlines for non-viable routes or to airports located in remote regions. Under Article 108.3 TFEU and the Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union6, the Commission will order the recovery, by the public entity concerned, of any aid from the beneficiaries that has not been properly notified to and approved by the Commission (and does not benefit from an exemption), and that is later found to be in breach of the substantive State aid rules (in the case of an illegal and incompatible aid). The aid recovery must be dealt with by the public entity that has given the aid. The amount of aid to be recovered must include cumulated interest as from the moment of the grant. The aid’s reimbursement aims at restoring the situation previous to the granting of the illegal and unlawful aid, not being, therefore a penalty. Neither the Member State concerned nor the aid’s beneficiary are fined; however, they may face liability actions from competitors even if such claims are 3 OJ L 187 26/06/2014, p. 1. 4 Commission Regulation (EU) 2017/1084 of 14 June 2017 amending Regulation (EU) No. 651/2014 as regards aid for port and airport infrastructure, notification thresholds for aid for culture and heritage conservation and for aid for sport and multifunctional recreational infrastructures, and regional operating aid schemes for outermost regions and amending Regulation (EU) No. 702/2014 as regards the calculation of eligible costs, OJ L 156, 20/06/2017, pp. 1–18. 5 OJ L 7, 11/01/2012, pp. 3–10. 6 OJ L 248, 24/09/2015, pp. 9–29.
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