EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 67 balance between the recipient and its competitors in a given Member State236. Despite purely general measures, applied across the board, not qualifying as selective, in certain cases, the measures are only “general” in appearance, benefiting, in reality, certain undertakings or economic sectors and possibly leading to selectivity237. Although selectivity is subject to extensive case-law, we will only emphasise the difference between material and regional selectivity and the fact that tax and similar measures are subject to more specific guidance238. d) Distortion of competition – Distorted competition arises when a measure granted by the State improves the competitive position of the recipient compared to other undertakings with which it competes239. Distortion of competition is highly likely when the State grants a financial advantage to an undertaking that is subject to competition in the market in which it operates. For aid to be presumed to distort competition, the aid must give the beneficiary an advantage by relieving it of expenses it would otherwise have had to bear in its standard course of business. However, in some instances, the state may establish legal monopolies, without infringing on the rules of state aid240. e) Affectation of trade between Member States – The threshold for this test is rather low, as it does not require actual effect on the interstate trade – its capability is sufficient241. If the subsidy could make it more difficult for operators, in the other Member States, to enter the market, even when the undertaking concerned is not involved in cross-border trade, this condition would be satisfied242. As a general rule, the state subsidies, complying with the above-mentioned conditions, will need to be notified to the Commission for verification of their compatibility with the internal market. In certain cases, the state subsidies could escape the qualification as state aid: when (i) the recipient undertaking does not engage in economic activity; (ii) the state action is comparable to that of the 236 Ibid. p. 21. 237 Case C-256/97, DMTransport, Judgment of 29 June 1999, ECLI:EU:C:1999:332, para 27. 238 Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union, C/2016/2946, OJ C 262, 19.o7.2016, pp. 1-50, point 119. (Hereinafter: “Commission Notice on the notion of State aid”). 239 Case 730/79, Philip Morris, Judgment of 17 September 1980, ECLI:EU:C:1980:209, para. 11. 240 Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union, C/2016/2946, OJ C 262, 19.o7.2016, pp. 1-50, points 187-189. 241 Case C-518/13, Eventech v The Parking Adjudicator, Judgment of 14 January 2015, ECLI:EU:C:2015:9, para. 65. 242 For a detailed discussion, see: Commission Notice on the notion of State aid, paras. 190-198.
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