TOURISM LAW AND COMPETITION – A PORTUGUESE PERSPECTIVE 429 to the Member States20, so as to prevent and restrict unjustified restrictions of competition with impact on the internal market. In the TFEU’s Preamble the representatives of the Member States of the European Union are already “RECOGNIS[ING] that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition”. Accordingly, the EU “shall have exclusive competence” when establishing the competition rules necessary for the functioning of the internal market21. These measures are further detailed and implemented in secondary law concerning namely State Aid, Merger Control, Antitrust and Services of General Economic Interest (“SIEGs”)22. Differently, the EU has the competence to carry out actions specifically “to support, coordinate or supplement the actions of the Member States” as regards tourism and protection and improvement of human health and must respect the spheres of competence of the Member States, as well as the principles of subsidiarity and proportionality as regards tourism23. This is most important to understand the interplay between the promotion and enforcement of competition rules at EU level and the leeway enjoyed by Member States in the exercise of shared competences, in particular to address the ongoing COVID-19 crisis. In practice, the interplay of these different scopes of competence has substantially increased the risk of state interventions inducing competition distortions, besides the behaviour of private players. The complementary action concerning tourism is pursued “in particular by promoting the competitiveness of Union undertakings in that sector”. Moreover, “To that end, [the European] Union action shall be aimed at: (a) encouraging the creation of a favourable environment for the development of undertakings in this sector; and (b) promoting cooperation between the Member States, particularly by the exchange of good practice”. Given the nature of the EU’s action, harmonisation of the laws and regulations of the Member States is excluded and the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish 20 Title VII, Chapter 1 of the Treaty on the Functioning of the European Union. See also Protocol (No 27) on the internal market and competition. 21 Article 3(1) indent (b) TFEU. 22 For more information, please visit the website of the Directorate General for Competition of the European Union, available at: https://ec.europa.eu/competition/index_en.html. Amongst the numerous doctrines on this area, please see Faull and Nickpay “The EU Law of Competition”, third edition, 2014, Oxford University Press, ISBN: 9780199665099. 23 See articles 3 to 6 of the TFEU. And article 4 (2) (k) TFEU further provides that the shared competence of the EU concerning “common safety concerns in public health matters” is specifically defined in the TFEU.
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