HOW TO SUPPORT THE DEVELOPMENT OF NEW ROUTES 147 rare due to the difficulty to establish the damage and the link between the aid and the damage. 1.3. The relevant EU framework in the air transport sector On 20 February 2014, the Commission adopted its Guidelines on State aids to airports and airlines (hereafter the “Aviation Guidelines”)7, which aim at providing clear legal rules on public funding to airports and airlines, irrespective of the form of funding involved (such as subsidies, loan, capital injection or rebates on airport charges). They offer guidance to the public players in this sector in order to assess, firstly, the existence of aid provided to an airport or airline and, secondly, in the case of the existence of aid, the compatibility of such aid with the internal market. They provide the compatibility conditions for investment and operating aid to airports and for start-up aid to airlines. Furthermore, in particular circumstances, public authorities may qualify certain economic activities carried out by airports or airlines as of Services of General Economic Interest (SGEI) within the meaning of Article 106.2 TFEU and award compensation for discharging such services. In accordance with the Altmark judgment8, public service compensations do not constitute State aid if certain conditions are met. If those conditions are not fulfilled, the SGEI Communication9 and Commission Regulation (EU) No. 360/201210 describe and set up the conditions under which the public financing of a SGEI constitutes State aid within the 7 OJ C 99, 04/04/2014, p. 3. For a more detailed presentation on the 2014 Aviation Guidelines, see J. BAKOBZA and N. IMBERT, “Aviation”, EU Competition law, Vol. IV State aid, book two, Claeys Casteels, 2016, pp. 953-1015; A. LEPIECE, “The new EU Guidelines on state aids to airports and airlines”, the Journal of Airport Management, July 2014, pp. 226-243. 8 See Altmark judgment, Case C-280/00, [2003] ECR I-7747. Public funding for the provision of an SGEI does not entail a selective advantage within the meaning of Article 107(1) of the Treaty if the following four conditions are met: (a) the beneficiary of a State funding mechanism for an SGEI must be formally entrusted with the provision and discharge of an SGEI, the obligations of which must be clearly defined (b) the parameters for calculating the compensation must be established beforehand in an objective and transparent manner; (c) the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of the SGEI, taking into account the relevant receipts and a reasonable profit for discharging those obligations and (d) where the beneficiary is not chosen pursuant to a public procurement procedure, that allows for the provision of the service at the least cost to the community, the level of compensation granted must be determined on the basis of an analysis of the costs which a typical undertaking, well run, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit. 9 Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest, OJ C 8, 11/01/2012, p. 4. 10 Commission Regulation (EU) No. 360/2012 of 25 April 2012 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest, OJ L 114, 26/04/2012, p. 8.
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