258 COMPETITION LAW IN TOURISM (b) conferring a benefit; and (c) limited, in law or in fact, to an entity or industry or group of entities or industries within the jurisdiction of the granting authority”. II. PRACTICES DISTORTING COMPETITION Regulation (EU) 2019/712 indicates that a finding of injury shall be based on evidence (Art. 12) and shall take account of the following factors: “(a) the situation of the Union air carriers concerned, notably in terms of aspects such as frequency of services, utilisation of capacity, network effect, sales, market share, profits, return on capital, investment and employment; (b) the general situation on the affected air transport services markets, notably in terms of the level of fares or rates, capacity and frequency of air transport services or use of the network”. Concerning the threat of injury, it will be based on clear evidence and not merely on allegation, conjecture or remote possibility; Regulation (EU) 2019/712 specifies that “The development into injury must be clearly foreseeable, very likely and imminent, and capable of being attributed beyond any reasonable doubt to an action or decision by a third country or a third-country entity”. The factors that will be taken into consideration for the threat of injury will be (art. 12): “a) the foreseeable evolution of the situation of the Union air carriers concerned, in particular in terms of frequency of services, utilisation of capacity, network effect, sales, market share, profits, return on capital, investment and employment; (b) the foreseeable evolution of the general situation of the potentially affected air transport services markets, in particular in terms of the level of fares or rates, capacity and frequency of air transport services or use of the network”. In Spain, it is necessary to consider the interpretative criteria on the application of the concept of the establishment to the airlines that request the designation or allocation of traffic rights prior to the operation of air services, of the Ministry of Development33. 33 Available in: https://www.fomento.gob.es/recursos_mfom/critinterconcepestablecim.pdf (Consulted on 19 June 2019).
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