42 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY b) the aid has to be proportionate to the pursued objective, as well as appropriate, meaning that the Member State has to prove that the objective could not be achieved by other means (e.g. regulation); c) the aid must have an incentive effect, it has to change the behaviour of the beneficiary to do something more with the aid than without it. This has to be supported generally by showing the counterfactual scenario (what would happen in the no aid scenario, and what would happen if the aid is granted). Moreover, the negative effects on competition and trade between the Member States of the aid have to be limited to the strict minimum necessary; and d) the granting of an aid of more than 500,000 € has to comply with the transparency requirements29. As mentioned above, the Commission has a wide discretion when defining how these principles are interpreted in the case of different types of aid, as the Commission has the right to adopt guidelines and frameworks in order to publish the compatibility conditions of the aid. These soft law items make the compatibility assessment more transparent and foreseeable and also tie the hands of the Commission30. Once the Commission adopts a guideline on the compatibility conditions of certain type of aid, it cannot declare an aid measure incompatible if the conditions defined in the guidelines are met. Although State aid soft law adopted by the Commission is not directly obligatory for the Member States31, indirectly, it has a significant impact when the Member States define their future aid measures. Obviously, the Member States take the guidelines as the measure’s blueprint when designing their measures before the notification; besides, they can still notify draft measures assessed directly under the TFEU. Nonetheless, if a guideline is adopted for that specific type of aid, the Commission will apply it, and a more open assessment remains only for the cases not covered by the guidelines32. 29 Source: https://webgate.ec.europa.eu/competition/transparency/public?lang=en (accessed on 10 March 2021). 30 See the following judgments: 310/85 Deufil v Commission (ECR EU:C:1987:96) paragraph 22, C-313/90 CIRFS a.o. v Commission paragraphs 34 and 36, C-311/94 Ijssel-Vliet (ECR, EU:C:1996:383) paragraph 42 and, more recently, C-526/14 Tadej Kotnik a.o. v Državni zbor Republike Slovenije (ECLI:EU:C:2016:570). 31 See the order of the President of the General Court in case T-694/14 European Renewable Energies Federation (EREF) v European Commission (ECLI:EU:T:2015:915). 32 In those cases, the Commission would most probably assess the compatibility of the aid under Article 107(3)(c) TFEU.
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