160 COMPETITION LAW IN TOURISM of the public entity/undertaking at stake and whether the airline has been selected following a transparent and non-discriminatory tender process. Recently, other types of purchase have been contemplated by airports, such as the purchase of flight tickets to allocate them, free of charge, to certain persons or companies to promote culture, tourism and education in the respective regions. Such purchase may be considered as hidden illegal and incompatible State aid, in favour of the airline, when a public development company purchases a significant fixed proportion of the tickets on a specific route, aiming to allocate them, free of charge, over a long or undetermined period of time. Indeed, they could be considered as an operating aid. In a judgment of 28 January 1999, the General Court of the EU stated the following: “A State measure whereby a public authority enters into an agreement to buy travel vouchers from a particular undertaking for a period of several years cannot, merely because the parties undertake reciprocal commitments, be excluded in principle from classification as State aid in the sense contemplated in Article [107 TFEU]. Where the agreement affects competition and trade between Member States in so far as the travel vouchers can be used only in the low season and, accordingly, the improved service supplied by the undertaking does not in principle entail significant additional costs for it, and where the total number of travel vouchers purchased does not appear to have been fixed by reference to the actual needs of the public authority concerned, such an agreement falls within the scope of Article [107 TFEU]. In such cases, any cultural and social aims pursued by the public authorities play no part in the characterisation of the agreement in the light of Article [107(1) TFUE]. Article [107(1) TFEU] makes no distinction according to the causes or aims of the aid in question, but defines it in relation to its effects. Nevertheless, such aims may be taken into account by the Commission when, in exercising its power of constant review under Article [108 TFEU], it rules on the compatibility with the common market of a measure already categorised as State aid and verifies whether that measure falls within the derogations provided for by Article [107(2) and (3) TFEU]”48. Occasional campaigns, which are limited to the actual and reasonable needs of a public authority or undertaking, can, in some instances, be justified. The motivation, the duration of the campaign and the number of flight tickets purchased should be carefully assessed. 48 Judgment of 28 January 1999, BAI vs Commission, T-14/96, ECLI:EU:T:1999:12.
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