72 COMPETITION LAW IN TOURISM can take various forms (grants, loans, subsidised contracts, etc.).The Commission considers that this has a negligible impact on trade and competition and does not require notification. This aid can be given for most purposes (including operating aid) and is not project-related. l) Services of General Economic Interest (SGEI) – There is no economic advantage at hand when a SGEI is entrusted in line with the Altmark272 criteria, especially when: (i) the services can be considered as a SGEI for which the public service obligations have been clearly defined; (ii) the parameters of compensation have been established in advance in an objective and transparent manner; (iii) there is no compensation paid beyond the net costs of providing the public service and a reasonable profit; and (iv) the SGEI has been either assigned through a public procurement procedure that ensures the provision of the service at the least cost to the community or the compensation does not exceed what an efficient company would require. In such cases, the Commission only checks whether there is a manifest error committed by the Member States. It is present if a service is defined as a SGEI that either (i) is not addressed to citizens or is not in the interest of society as a whole, or (ii) where an activity is already provided or can be provided by the market under the same conditions273. In tourism related segments, it appears that a SGEI can only be defined in particular circumstances, as many activities already provided on the market. Moreover, certain activities financed by the State promote tourism but are not directly addressed to citizens, which can be problematic. m) The consequences of incompatible state aid – When the aid is deemed to be incompatible with the internal market, the recipient will be ordered to repay the aid granted, including interest. The Court of Justice has ruled on multiple occasions that recovery is aimed at re-establishing the situation that existed on the market prior to granting the aid. In addition, competitors of the recipient can also claim damages. Furthermore, it is possible that any benefit enjoyed through the unapproved period may be recovered274. 272 Case C-280/00, Altmark Trans and Regierungspräsidium Magdeburg, Judgment of 24 July 2003, EU:C:2003:415; See also: Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest, OJ C 8, 11.01.2012 (hereinafter: “EC SGEI Communication”), p. 4. 273 See: EC SGEI Communication, paras. 48 and 50. 274 European Commission: State aid, Recovery of unlawful aid, available at: https://ec.europa.eu/competition/ state_aid/studies_reports/recovery.html; See also: Communication from the Commission – Commission Notice on the recovery of unlawful and incompatible State aid C/2019/5396, OJ C 247, 23.o7.2019, pp. 1-23.
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