68 COMPETITION LAW IN TOURISM market economy operator; or (iii) whereby public assistance has no effect on trade between the Member States. Furthermore, the EU state aid regime contains inherent exceptions, provided for in paragraphs 2 and 3 of Article 107 TFEU. All of these conditions have been subject to extensive case-law, applying unrestrictedly across the sectors. Although the current state aid framework does not envisage an automatic exemption or guidelines for state aid in tourism, some specific rules cover certain tourism sub-sectors, such as air243, maritime244 and rail transport245 and related infrastructure projects246. In addition, the aid destined for environmental protection247 and regional aid248 are assessed under special rules. f ) Economic activity – Any activity consisting of offering goods and services on any market constitutes an economic activity under the EU law, if said activity is carried out in exchange of remuneration, otherwise, it does not constitute an economic activity and state aid is consequently not present. Activities through which the State fulfils a genuine public task and responsibility are not of an economic nature and in general fall outside the scope of the state aid rules249. Various options exist as regards the application of this criterion in the tourism sector. Firstly, financing non-income generating tourism facilities250 built in the interest of the general public, open and equally accessible for everyone, may fall outside the scope of Article 107(1) TFEU251. In circumstances where the touristic infrastructure is used almost exclusively for non-economic activities, the ancillary 243 Communication from the Commission – Guidelines on State aid to airports and airlines OJ C 99, 04.04.2014, pp. 334. 244 Commission Communication C(2004) 43 – Community guidelines on State aid to maritime transport OJ C 013, 17.01.2004, p. 3; See also: https://ec.europa.eu/competition/sectors/transport/legislation_maritime_state_ aid.html. 245 Communication from the Commission – Community guidelines on State aid for railway undertakings OJ C184 of 22/07/2008, p. 13; See also other relevant rules: https://ec.europa.eu/competition/sectors/transport/ legislation_rail_road_state_aid.html. 246 Clarification of the Commission recommendations on the application of the competition rules to new transport infrastructure projects OJ C 298, 30.09.1997, pp. 59; See also other relevant rules: https://ec.europa.eu/ competition/sectors/transport/legislation_infrastructure.html. 247 Communication from the Commission – Guidelines on State aid for environmental protection and energy 2014-2020 OJ C 200, 28.06.2014, pp. 155. 248 European Commission: Guidelines on regional State aid for 2014-2020, OJ C209, 23.07.2013. 249 Commission Notice on the notion of State aid, paras. 6-37. 250 Such as information centres, footpaths, cycle paths and bridle paths, learning experience and nature paths that are not commercially exploited. 251 Frank Montag, Franz Jürgen Säcker, European State Aid Law: A Commentary, München, C.H. Beck, 2016, p. 1491.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==