130 COMPETITION LAW IN TOURISM tried to nuance its position by saying that there is “a minimum” competition between the beneficiary and the appellant and their services overlap only in part, however the Court disregarded this, for it was not explained in detail in the decision. All this has indicated for the Court that the Commission could not exclude the presence of serious difficulties during its compatibility assessment. Lastly, the applicant also criticised that the Commission did not take into account the aid’s potential negative effect on competition and on trade relations, as regards the market of travel, education and pedagogic services provided for young people. The Commission’s opinion mentioned only a marginal effect on the market, not squeezing out any other potential future service provider on the market. The Commission concluded that the relevant market was not only the market of services provided for young travellers but also services for family travels. This way, the potential impact was further reduced given that the market was bigger and more service providers were present. It was also observed that the capacity to be built and operated with the aid was very small compared to the total capacity in Berlin, and the aid would not result in a dominant position of the beneficiary nor would it cause any imbalances on the market. In its analysis, the Court referred to the lack of proper assessment concerning the proportionality of the measure and clearly stated that measuring the negative impacts of the aid on competition and trade was also an appearance of the principle of proportionality. The Commission had to do a balancing exercise between the aid’s positive and negative effects but to properly do that it had to analyse what was in each plate of the scale. The Court was clear that the Commission was not allowed to state simple facts and a more detailed explanation was needed. Since this did not happen, the Commission could not exclude the serious difficulties regarding the question of whether the measure changed the trading conditions between the Member States to an extent contrary to the common interest. Finally, the Court highlighted that the Commission was required to carry out a more detailed compatibility assessment in the case of individual measures, also explaining all the measure’s positive externalities, which were only partly mentioned in the decision. Since it cannot be excluded that the Commission was confronted with serious difficulties as regards the incentive effect, proportionality of the measure and its effect on the trade between the Member States, it should have opened the formal investigation procedure under Article 108(2)TFEUand not close its investigation
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