128 COMPETITION LAW IN TOURISM be compatible under Article 107(3)(c) TFEU in exceptional circumstances. The Court first highlighted that the Commission is not bound to decide on the qualification of a measure as State aid or nor when it carries out its compatibility assessment, it can leave the question open. In any event, the operating aid can still be compatible with the internal market also under Article107(3)(c) TFEU, but, in these cases, the Commission has to carry out a more robust analysis for operating aid as it is usually forbidden.The applicant stated that the Commission’s analysis was not robust enough and reasoned in sufficient detail. First, the applicant stated that the Commission inversed the burden of proof by saying that the aid did not lead to excess profit at the beneficiary and, this way, the aid was proportional. The Commission argued that the measure was necessary to achieve the objective also defined in Article 165 TFEU, namely the educational policy54. The Commission has taken into account the information provided by the German authorities about the costs of building and operating a hostel and youth centre. For the Commission, it was clear that the aid had incentive effect and, without the aid, the hostel would not have been built and maintained for thirty years. The calculations also included the DJH’s profits, with the caveat that these will be reinvested for youth programs. The Court explained that the Commission has to verify not only whether an aid measure contributes to a common objective, but also its proportionality and appropriateness in respect of this objective. The assessment should include the verification of how the aid will lead to an activity, which would not be otherwise done by the beneficiary, solely by relying on its own funds. Therefore, the Court was clear that the Commission needed to show that it had in its possession the information necessary for this compatibility analysis. The Commission has shown, with a previous example, what the project’s funding gap55 was. It has also shown that the other hostel in Berlin was lossmaking in its first years of activity without aid. Conversely, the Court pointed out that the Commission decision itself did not refer to these documents, presented by the Commission during the court proceedings. The decision refers to the information provided by the German authorities only in the part that established that the measure conferred 54 “The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity”. 55 The funding gap is calculated as the ratio between the net present value of the project and the discounted total cost of the project. If it is less than 1, the project does not provide enough revenues to cover its costs.
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