EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 65 6.3. Outlook Overall, in parallel to the investigations in the offline world, it is clear that there is an enormous appetite to expand the “special responsibility” of digital giants. The Commission’s Report on Competition Policy in the Digital Age even suggests to reverse the burden of proof for dominant companies, requiring that they justify their practice by objective reasons230. These developments also have incidence on the tourism sector. The Crémer Report suggested “A dominant platform that sets up a marketplace must ensure a level playing field on this marketplace and must not use its rule-setting power to determine the outcome of the competition”231. In addition to the existing tools232, the introduction of enhanced regulation of large online platforms (among other things, in order to improve the flow of data and to diminish self-preferencing practices) seems an increasingly realistic option. 7. STATE AID State aid is a competition law term encompassing various forms of public assistance given to undertakings by the EU Member States233. The assistance operated on the Union level and by EU funds does not qualify as State aid. Article 107 TFEU prohibits (i) the intervention by the State or through State resources, (ii) providing the recipient with an advantage (iii) on a selective basis, (iv) which distorts competition and (v) affects trade between the Member States. These conditions are cumulative. Regarding the process, there is a complex interplay of procedure and substance: if a proposed measure is found to include State aid, a check is required whether it is block exempted or authorised as part of an aid scheme; if not, it has to be notified to the Commission and must not be implemented prior to approval. Non-notified aid is “illegal”, but this is not the last word. If the Commission finds out that State aid has not been notified, it will still assess its 230 Crémer Report, supra note 71, p. 6. 231 Crémer Report, supra note 71, p. 6. 232 Such as: Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union (Text with EEA relevance), PE/53/2018/REV/1, OJ L 303, 28.11.2018, pp. 59-68. 233 For a comprehensive description of the EU State aid rules in German language, see Bertold Bär-Bouyssière, Artikel 107-109 AEUV, in Schwarze, EU-Kommentar (hrsg; von U. Becker, A. Hatje, J. Schoo, J. Schwarze, Nomos, 4. Aufl. 2019).
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