74 COMPETITION LAW IN TOURISM notions of culture and heritage conservation must be applied to the content and nature of the product/service in question, and not to the medium of its distribution (e.g. flyers). Interestingly, if it concerns a cultural or even athletic activity, which is intended to increase the touristic attractiveness, the assessment under Article 107(3)(c) may be necessary284, as subparagraph (d) needs to be interpreted restrictively285. In that regard, the 2007 Basque Language case286 is interesting: certain public assistance, initially intended to be assessed under the culture exemption, were eventually evaluated under Article 107(3)(c), as it also encompassed economic activities. Additionally, specific regional development aid has high relevance for tourism287, and while in many of these cases tourism is indirectly benefiting from state subsidies, direct aid to tour operators might not withstand the Commission’s scrutiny288. Further, airports and air transport companies have long been under the Commission’s radar as they are typical recipients of state subsidies. Since 2014, the Commission has modernised state aid rules applicable to the aviation industry to facilitate aid to largely loss-making (regional) airports289. Although in many cases such aid is not problematic290, public assistance to an airport may give rise to lengthy subsequent litigation291. Airlines have also received various types of assistance, including start-up aid for the development of new routes292. Concerning the recovery of state aid in the context of tourism, theCommission has taken Italy to court over its failure to recover public assistance accorded to the Sardinian hotels. Interestingly, the aid at hand stems from 1998 and Italy has 284 Frank Montag, Franz Jürgen Säcker, European State Aid Law, supra note 251 p. 1507; see also: Case N 436/2001 – Ireland, Tourism and Recreational Angling Grant Scheme (2002). 285 Ibid. para. 32. 286 Case N161/2008 – Spain, Aid to the Basque language – Basque Country (2008). 287 See, e.g. Case SA.45863 – Scandinavian Mountains Airport. 288 Case 2003/262/EC: Commission decision of 27 November 2002 on the premium scheme for tour operators in Greece, OJ L 103, 24.04.2003, pp. 63-67. 289 European Commission, Competition Policy Brief, Issue 2: New State aid rules for a competitive aviation industry, February 2014, available at: https://ec.europa.eu/competition/publications/cpb/2014/002_en.pdf. 290 See, e.g. Commission decisions SA.44377 – Aarhus Airport – Operating and Investment Aid; SA.46945 – Erfurt-Weimar airport; SA.47969 – Operating aid to Frankfurt-Hahn Airport; SA.49709 – Rostock Airport. 291 Case T-165/15, Ryanair DAC, formerly Ryanair Ltd and Airport Marketing Services Ltd v European Commission, Judgment of 13 December 2018, ECLI:EU:T:2018:953, on appeal to the Court of Justice: C-203/19 P, Ryanair and Airport Marketing Services v Commission (not yet decided). 292 Cases SA.46709 – Start-up aid for new routes from/to airports in the Region of Calabria; SA.48345 – Start-up aid scheme for routes from Tulcea Airport.
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