TOURISM AND STATE AID 127 assessment of an individual State measure. In Berlin, a non-profit organisation – DJH –, operating hostels for young people, received the right to use a certain property for thirty years without any fee from the public authorities, with the obligation to make an investment from its own funds, up to 9.4 million euros, and maintain the hostel throughout the rental period. A different hostel operator – A&O – submitted a complaint to the European Commission, stating that DHJ received illegal State aid. Based on additional information originating from the complainant and from the German authorities, the Commission adopted a decision declaring that the aid is compatible with the internal market under Article 107(3) point c) TFEU. The Commission adopted its decision without opening a formal investigation procedure53, which means that it was not confronted with difficulties during its preliminary investigation, even though the information from the complainant contradicted the information submitted by the German authorities. The Commission’s assessment conclusion was that the measure was supporting a common objective (travel of students and exchange of students, contributing to their cultural and historical studies), and the objectives of the measure could not be reached without aid, which was proportional without having excessive negative effects on the market. The A&O submitted a request for annulment, to the General Court, against this decision, stating that the Commission’s investigation was insufficient. The Court, after explaining that third parties have broader rights to question the validity of a Commission decision when formal investigation procedures were not opened, analysed how the Commission conducted its compatibility assessment. The Court generally highlighted that the Commission enjoys a large margin of discretion when conducting this assessment, if it needs complex socio- -economic measurements. The EU Courts have limited supervisory powers as regards the conduct of discretion and in reviewing whether that freedom was lawfully exercised. Moreover, the EU Courts cannot substitute the Commission’s assessment with their own, but must restrict themselves to examining whether the Commissions assessment is vitiated by a manifest error or misuse of powers. However, this limitation does not apply when the Courts have to assess whether the Commission has confronted with difficulties during the compatibility assessment, which should lead to the opening of a formal investigation. The applicant first stated that the Commission did not take into account that the aid was an operating aid for the beneficiary, although operating aid can only 53 Case SA.43145.
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