HOW TO SUPPORT THE DEVELOPMENT OF NEW ROUTES 163 of SGEIs by the Member States in this sector is constrained by Regulation No. 1008/2008 and, accordingly, they have no margin of discretion in this regard. The Commission noticed that the Sardinian aid scheme explicitly excluded routes that were the object of public service obligations in accordance with Regulation No. 1008/2008, and that these funds could not be considered as a compensation for a genuine SGEI. The scheme was “clearly designed as a system parallel to the system of public service obligations under Regulation N°1008/2008”51. Concerning the possible application of the MEOP, the Commission noted that Italy had not relied on that principle in the context of this procedure. Regardless, the Commission points out that the ex-ante profitability test, as mentioned under points 61 to 66 of the Aviation Guidelines, could not be applied in this case at the level of the airports, since the Region, which provides the funding through airport operators within the framework of the scheme, cannot be considered as an airport operator, “all the more since the Region only controls one of the airport operators concerned”52. When undertaking the profitability test, “it should be assessed whether the arrangement in question could be expected, when they were concluded, to incrementally contribute to the profitability of the airport and are part of an overall strategy leading to profitability in the long term”53. The test is not applicable because the scheme a) only had public policy objectives, b) had been established by a public authority, c) was applicable to several airports and d) did not constitute an individual agreement between an airport and an airline. The Commission also excluded the MEOP’s application at the Region level, as it could not expect any return that a profit-driven private operator would have taken into consideration in the same circumstances: “The expected effects of the financing was an increase in the number of passengers travelling by air to Sardinia, which as such does not give rise to dividends, capital gains or any other form of profit for the Region […]. Public policy benefits would not be taken into consideration by a profit-driven market economic operator and are thus to be disregarded when applying the MEOP”54. The Commission added that, despite the provisions in the Italian law establishing the scheme, no open or transparent tender procedure had been organised. Airport operators published notices on their websites and selected 51 Ibid. para. 379. 52 Ibid. para. 381. 53 Ibid. 54 Ibid. para. 382.
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