EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 69 principle may apply and the financing of the whole infrastructure may fall outside the state aid rules252.The same holds true for aid to customary amenities253 of infrastructures, almost exclusively used for a non-economic activity, a logic that also extends to the production and distribution of touristic information materials254, that can be obtained free of charge by any interested visitor as the general destination marketing255. As for the websites, in order to remain within their public task, they should not include a commercial economic activity such as advertising, the sale of tickets or booking features in a way that is not part of fulfilling that function. Otherwise, the recipient could be in direct competition with private website providers. If a provider is engaged in both economic and non-economic activities, the Member States must ensure that public funding provided for the non-economic activities cannot be used to cross-subsidise the economic activities256. As regards culture, heritage conservation and nature conservation, many activities are organised in a non-commercial way and are therefore non- -economic257. Tourism activities are most likely to be considered an economic activity258, and to this day, there is no exception for tourism per se; therefore, in order to be exempted, the activity should fall, at least partly, under the notion of culture or heritage conservation259, despite the distinction between “promotion of culture” and “tourism” not being always clear-cut260. g) Market Economy Investor Principle (or Market Economy Operator Principle) – If proven that the State acted under the same terms and conditions as a commercial investor when investing in a particular activity, the government intervention does not create an economic advantage for the recipient261. This should be demonstrated by (i) significant pari passu co-investments of commercial 252 Commission Notice on the notion of State aid, para. 207. 253 Such as shops selling travel literature or souvenirs and paid parking. 254 Such as brochures, maps, train and bus timetables. 255 Such as promotion campaign, organisation of free information events and the creation of a general information website. 256 This can be ensured, for instance, by a clear separation of accounts between the economic and the non- -economic activity. 257 For the detailed guidance, see: Commission Notice on the notion of State aid, Section 2.6; see also the EC Analytical grid for culture: https://ec.europa.eu/competition/state_aid/modernisation/grid_culture_en.pdf. 258 Frank Montag, Franz Jürgen Säcker, European State Aid Law, supra note 251, p. 1491. 259 Ibid. p. 1490. 260 Case N560/2001 – United Kingdom, Brighton Pier (2002). 261 Philipp Werner, Vincent Verouden, EU State Aid Control: supra note 235, pp. 18-19.
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