158 COMPETITION LAW IN TOURISM had been signed virtually on the same day as an airport services agreement by parties belonging to the same group of companies. It took not only those factors into consideration, but also other factors such as, in particular, the very terms of the marketing services agreements and the finding that, in the absence of the routes in question, the marketing services agreements would not have been concluded. In this respect, it should be noted that the marketing services agreements in question expressly provided that they were rooted in Ryanair’s commitment to operate a route from Pau airport.”44. Ryanair has appealed these judgments before the Court of Justice, and the cases are still pending. The use of such promotional tools must, therefore, be handled with care, and, once again, an in-depth economic analysis must be undertaken before the conclusion of the agreement, in order to demonstrate the adequate value of the services provided and the general profitability of the advertising campaign for the airport at stake. Consequently, the Commission applies a strict approach towards such marketing contracts. It is, nevertheless, possible for public authorities to acquire marketing services to promote their regions. In the Nîmes Airport case, the Commission established several criteria to ensure the legality of such public funding: – These services must correspond to an actual need of the public purchaser, and the entity is invested with a mission of local economic development, promotion of tourism, etc.; – The public entity must limit its action to the general promotion of the territory and the local economy and not target specific companies. Therefore, the promotional activity must not target the commercial activity of well-defined companies, such as an airport and an airline and must not focus on routes, destinations operated by an airline, etc.; and – The public entities must organise a tender or, if such tender is not compulsory under public procurement rules, at least consult several providers to compare their offers45. 44 Judgment of the General Court of 13 December 2018, Pau Airport case, T-165/15, ECLI:EU:T:2018:953. 45 Op. cit.
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