70 COMPETITION LAW IN TOURISM operators, i.e. on the same terms and conditions as the public authorities, and/ or (ii) the presence (before the funding is provided) of a sound business plan (preferably validated by external experts), demonstrating that the investment provides an adequate rate of return for the investors – which is in line with the regular market rate of return expected by commercial operators in comparable projects, taking into account the specific circumstances of each case262. h) No effect on interstate trade – The Commission may consider that, due to the case’s specific circumstances, certain activities have a mere local impact. More specifically, a measure has no effect on the trade between the Member States if (1) the goods or services supplied by the beneficiary attract solely local customers and thus have a geographically limited attraction zone and (2) it cannot be foreseen that the measure would have more than a marginal effect on the conditions of cross-border investments or establishment263. The “local” argument is influenced by taking into account (i) the location of the infrastructure; (ii) the predominance of local users; (iii) the total capacity of the infrastructure relative to the number of resident users; (iv) the existence of other tourism-related facilities in the area; and (v) its operating time264. i) Exemptions – Article 107, paragraphs 2 and 3 contain rules on (possible) compatibility of granted aid with the internal market. The most relevant provisions regarding tourism are to be found in Article 107(3) c) and d), allowing a possibility to exempt aid to facilitate the development of certain economic activities or areas and to promote culture and heritage conservation, where such aid does not affect trading conditions to an extent contrary to the common interest. The exception for culture and heritage conservation could, in some circumstances, be hard to distinguish from tourism activities265. Only when tourism is also benefitting a cultural purpose or the conservation of heritage, the assessment should be done under Article 107(3)(d)266. 262 Ibid. 263 Commission Notice on the notion of State aid, para. 196. For example museums or other cultural infrastructure unlikely to attract visitors from the other Member States. 264 Frank Montag, Franz Jürgen Säcker, European State Aid Law, supra note 251, p. 1493. 265 Ibid. p. 1503. 266 Ibid. p. 1506; see also: Case N 317/2000 – La Réunion 2000-2006 – Produits liés aux loisirs touristiques (2000).
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