JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
10 May 2023 (*)
(State aid – Measures to support enterprises in the context of the COVID-19 outbreak in the Netherlands – Decision not to raise any objections – Temporary framework for State aid measures – Obligation to state reasons)
In Case T‑289/21,
Bastion Holding BV, established in Amsterdam (Netherlands), and the other applicants whose names are listed in the annex, (1) represented by B. Braeken, X.Y.G. Versteeg, T. Hieselaar and L. Elzas, lawyers,
applicants,
v
European Commission, represented by V. Bottka and M. Farley, acting as Agents
defendant,
supported by
Kingdom of the Netherlands, represented by J. Langer and M. Bulterman, acting as Agents,
intervener,
THE GENERAL COURT (Sixth Chamber),
composed, at the time of the deliberations, of A. Marcoulli, President, J. Schwarcz and R. Norkus (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 21 September 2022,
gives the following
Judgment
1 By their action under Article 263 TFEU, the applicants, Bastion Holding BV, Bastion Holding Een BV, and Bastion Holding Twee BV, and the 33 individual Bastion hotels (together, ‘Bastion’), seek the annulment of Commission decision C(2021) 1872 final of 15 March 2021 on State Aid SA.62241 (2021/N) – The Netherlands – Third amendment of the direct grant scheme to support the fixed costs for enterprises affected by the COVID-19 outbreak (‘the contested decision’).
Background to the dispute
2 Bastion is a company governed by Netherlands law whose activity consists in providing hotel accommodation services to consumers. On account of the number of its employees and its annual balance sheet, Bastion is regarded as a large enterprise.
Initial scheme
3 On 18 June 2020, the Kingdom of the Netherlands notified the European Commission of an aid measure in the form of direct grants to undertakings affected by the COVID-19 outbreak (‘the initial scheme’). That notification was made under the Commission communication entitled ‘Temporary framework for State aid measures to support the economy in the current COVID-19 outbreak (OJ 2020 C 91 I, p. 1), as amended on 3 April 2020 (OJ 2020 C 112 I, p. 1) and 8 May 2020 (OJ 2020 C 164, p. 3) (‘the temporary framework’).
4 The initial scheme aims to ensure that sufficient liquidity remains available in the market, to counter the liquidity shortage faced by undertakings as a result of the COVID-19 outbreak, in order to ensure that the disruptions caused by the outbreak do not undermine the viability of the undertakings and, thereby, to preserve the continuity of economic activity during and after the outbreak. The scheme applies throughout the territory of the Netherlands and covers the period from June to September 2020.
5 The Netherlands authorities had taken the view that the COVID-19 outbreak affected all sectors of the national economy, which had contracted by 1.7% in the first quarter of 2020 compared to the previous quarter. In particular, they had considered that the ‘Horeca’ sector (hotel, restaurant, café) was the most affected, with a reduction of 18%, and that the risks associated with the crisis affected small and medium-sized enterprises in particular (‘SMEs’), which constituted 99.8% of registered companies and provided 71% of the employment in 2018. Consequently, the Netherlands authorities took the view that the continuity of the activities of those undertakings in particular had to be preserved.
6 The beneficiaries of that aid measure were solely SMEs, with the exception of those operating in certain sectors of the economy. SMEs are defined therein as enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million, in accordance with Annex I to Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 [TFEU] (OJ 2014 L 187, p. 1).
7 Each SME concerned could receive, under the initial scheme, a maximum amount of aid of EUR 50 000 to cover only the costs necessary to overcome the lack of liquidity resulting from the COVID-19 outbreak, such as fixed costs. Aid was granted to SMEs that had lost at least 30% of their turnover. That loss is measured as the difference between the turnover in the period covered by the aid and that in the reference period, that is to say from June to September 2019. The fixed costs of SMEs during that period are calculated by multiplying the turnover in the reference period by a sector-specific constant and must be at least EUR 4 000.
8 On 26 June 2020, the Commission decided not to raise objections to that measure and, therefore, adopted Decision C(2020) 4442 final on State aid SA.57712 (2020/N) – The Netherlands – COVID-19: direct grant scheme to support the fixed costs for small and medium-sized enterprises affected by the COVID-19 outbreak (‘the initial decision’). In that decision, the Commission concluded that the initial scheme constituted State aid within the meaning of Article 107(1) TFEU. The Commission also found that that scheme was necessary, appropriate and proportionate to remedy a serious disturbance in the Netherlands economy and that it satisfied all the relevant conditions set out in the temporary framework. The Commission therefore considered that the initial scheme was compatible with the internal market in accordance with Article 107(3)(b) TFEU.
9 The applicants did not challenge that decision.
First amendment to the initial scheme
10 On 13 November 2020, the Kingdom of the Netherlands notified the Commission of a first amendment to the initial scheme which, inter alia, extends the period covered by the scheme, from 1 October to 31 December 2020, and increases the maximum amount of aid per undertaking, from EUR 50 000 to EUR 90 000. The calculation of the amount of the aid remains based on the same conditions and formula as those described in the initial decision, in particular a decrease in turnover of 30% or more. However, first, the eligibility threshold concerning the minimum amount of fixed costs is adjusted downwards, from EUR 4 000 for the period from July to September 2020 to EUR 3 000 for the period from October to December 2020. Secondly, for the latter period, drinking and eating facilities, which are temporarily closed by the government, will receive an increment to their aid to help cover the costs related to their closure. That increase will amount to 2.8% of their loss of turnover during the compensation period.
11 The obligation to be an SME in order to be eligible to receive the aid remains unchanged.
12 On 20 November 2020, the Commission decided not to raise objections to that first amendment to the initial scheme on the ground that it was compatible with the internal market pursuant to Article 107(3)(b) TFEU (Commission Decision C(2020) 8286 final of 20 November 2020 on State aid SA.59535 (2020/N) – The Netherlands – Amendment of the scheme SA.57712 – COVID-19: direct grant scheme to support the fixed costs for small and medium-sized enterprises affected by the COVID-19 outbreak).
13 In particular, the Commission considered that the amendments made to the initial scheme did not affect the conclusion that that scheme satisfied the conditions of point 22 of the temporary framework, namely that the total aid was less than EUR 800 000 per undertaking and was granted on the basis of a scheme with an estimated budget.
14 The applicants brought an action under Article 263 TFEU against that decision, registered under the number T‑102/21.
Second amendment to the initial scheme
15 On 4 January 2021, the Netherlands notified the Commission of a second amendment to the initial scheme to introduce two new sub-measures and make a series of amendments to the existing measure in respect of the period from October to December 2020, as regards inter alia the formula for calculating the amount of the aid. Eligibility under the measure remains limited to SMEs.
16 In particular, the second amendment introduces sub-measure (a), which provides that an SME is eligible if it has lost at least 30% of its turnover in the period from January to March 2021 as compared with the reference period. The amount of aid is capped at EUR 90 000 and is intended to cover in part the fixed costs of the beneficiaries.
17 On 9 February 2021, the Commission decided not to raise objections to the abovementioned second amendment on the ground that it was compatible with the internal market pursuant to Article 107(3)(b) TFEU (Commission Decision C(2021) 942 final of 9 February 2021 – State Aid SA.60166 (2021/N) – The Netherlands – Amendment to the aid scheme SA.57712 as already amended by (State aid) SA.59535, and new sub-measures on COVID-19: direct grant scheme to support the fixed costs for enterprises affected by the COVID-19 outbreak).
18 Like the initial decision, that decision was not challenged by the applicants.
Third amendment to the initial scheme and contested decision
19 On 8 March 2021, the Netherlands notified the Commission of a third amendment to the initial scheme to introduce, inter alia, certain amendments to sub-measure (a), namely:
– sub-measure (a) is extended to large enterprises;
– the formula for calculating the amount of aid is amended, with the subsidy rate being replaced by a fixed percentage of 85%;
– the maximum aid per undertaking is increased to EUR 550 000 for SMEs and EUR 600 000 for large enterprises;
– the minimum amounts of the subsidy and the eligible costs are amended;
– the aid may be granted provided that its nominal value, for all measures granted in accordance with section 3.1 of the temporary framework, does not exceed EUR 1 800 000 per undertaking, EUR 270 000 per undertaking active in the fishery and aquaculture sector and EUR 225 000 per undertaking active in the primary production of agricultural products;
– the reference period for calculating the 30% turnover loss is amended for undertakings which started operating after March 2019;
– the estimated budget for sub-measure (a), as amended, is increased to EUR 2 953 million.
20 On 15 March 2021, by the contested decision, the Commission decided not to raise any objection against that third amendment to the initial scheme, on the ground that it was compatible with the internal market in accordance with Article 107(3)(b) TFEU.
Forms of order sought
21 The applicants claim that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
22 The Commission and the Kingdom of the Netherlands contend that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
23 In support of their action, the applicants raise two pleas in law alleging, first, infringement of the obligation to initiate the formal investigation procedure and, secondly, infringement of the obligation to state reasons.
The first plea in law, alleging infringement of the obligation to initiate the formal investigation procedure
24 By the first plea in law, the applicants claim that the current aid scheme raises doubts as to its compatibility with the internal market. In that regard, they submit, in essence, that the State aid measure at issue is, first, inappropriate to remedy the serious disturbance in the Netherlands economy as a result of the COVID-19 outbreak and, secondly, disproportionate to the objective it aims to achieve.
25 In the first place, as regards the inappropriateness of the State aid measure to remedy the serious disturbance in the Netherlands economy as a result of the COVID-19 pandemic, the applicants claim, in essence, that an aid measure which is capped, as regards large undertakings, at EUR 600 000 for one quarter of a year is not sufficient to achieve such an objective. They submit that, had every hotel in the Bastion structure received the actual amount of aid as an SME, Bastion would have received an aid of EUR 3.7 million, that is to say EUR 112 000 for each hotel on average.
26 According to the applicants, the objective of the State aid measure cannot properly be achieved by granting SMEs virtually the same amount of aid as large undertakings, even though the latter have more substantial fixed costs and a relatively high loss of turnover. They claim that large enterprises were affected by the government restrictions linked to the COVID-19 outbreak in the same way as SMEs, or to an even greater extent, and are therefore in a comparable situation to the latter. The Commission failed to examine whether the distinction between SMEs and large undertakings is appropriate for achieving the aim pursued.
27 Moreover, the measures adopted by some large undertakings in the hotel sector during the COVID-19 pandemic also attest to the inappropriateness of the aid measure at issue.
28 Furthermore, since the number of large undertakings in the hotel sector is very limited, eliminating the current cap of EUR 600 000 would not burden the estimated budget as indicated by the Netherlands authorities.
29 In the second place, as regards the disproportionate nature of the aid measure at issue, the applicants submit that the amount of aid granted to SMEs is too high in comparison with the amount granted to large undertakings and thus gives SMEs an unfair advantage. Since Bastion is a large enterprise, it can receive only EUR 600 000 to offset the loss of turnover of all its hotels, that is to say EUR 18 000 per hotel.
30 The applicants submit that the aid granted to SMEs under the current scheme enables SMEs to be more competitive on the hotel market than their competitors that are not SMEs. The aid measure at issue therefore goes beyond what is necessary to achieve the aim of remedying a serious disturbance in the Netherlands economy. That has an immediate effect on competition as well as significant consequences for the long term.
31 According to the applicants, the Commission did not assess the appropriateness and proportionality of the current scheme. The amount of aid granted to large enterprises in general is inappropriate for relieving their fixed costs and the amount of aid granted to SMEs in comparison to large undertakings is clearly disproportionate.
32 In addition, the applicants consider that it follows from the case-law that the Commission is required to weigh the beneficial effects of the aid against its adverse effects on trading conditions and competition in the internal market, unless the examination of the aid measure shows that the latter is necessary, appropriate and proportionate for achieving its objective.
33 The Commission should therefore have initiated a formal investigation procedure, since the current scheme is neither appropriate nor proportionate for achieving its objective.
34 The Commission and the Kingdom of the Netherlands dispute the applicants’ arguments.
35 Under Article 107(3)(b) TFEU, aid intended inter alia to remedy a serious disturbance in the economy of a Member State may be considered to be compatible with the internal market.
36 It must be borne in mind that, as a derogation from the general principle of the incompatibility of State aid with the internal market laid down in Article 107(1) TFEU, Article 107(3)(b) TFEU must be interpreted strictly (see judgment of 19 September 2018, HH Ferries and Others v Commission, T‑68/15, EU:T:2018:563, paragraph 142 and the case-law cited).
37 In accordance with the case-law, the Commission may declare aid compatible with Article 107(3) TFEU only if it can establish that the aid contributes to the attainment of one of the objectives specified, something which, under normal market conditions, a recipient undertaking would not achieve by using its own resources. In other words, the Member States must not be permitted to make payments which, although they would improve the financial situation of the recipient undertaking, are not necessary for the attainment of the objectives specified in Article 107(3) TFEU (see judgment of 19 September 2018, HH Ferries and Others v Commission, T‑68/15, EU:T:2018:563, paragraph 143 and the case-law cited).
38 The principle of proportionality requires the measures imposed by the acts of the EU institutions to be appropriate to achieve the objective pursued and not to exceed the limits of what is necessary for that purpose. As a general principle of EU law, the principle of proportionality is a criterion for the lawfulness of any act of the EU institutions, including decisions taken by the Commission in its capacity as competition authority. It is not acceptable for aid to include arrangements, in particular as regards its amount, whose restrictive effects exceed what is necessary to enable the aid to attain the objectives permitted by the TFEU (see judgment of 19 September 2018, HH Ferries and Others v Commission, T‑68/15, EU:T:2018:563, paragraph 144 and the case-law cited).
39 In addition, the fact that the inevitable consequence of the aid itself is often protection and therefore some partitioning of the market in question, as far as concerns the production of undertakings which do not derive any benefit from it, cannot imply that the aid produces restrictive effects which exceed what is necessary to enable it to attain the objectives permitted by the Treaty (judgment of 22 March 1977, Iannelli & Volpi, 74/76, EU:C:1977:51, paragraph 15).
40 It is clear from the general scheme of the Treaty that the procedure under Article 108 TFEU must never produce a result which is contrary to the specific provisions of the Treaty. Accordingly, State aid, certain conditions of which contravene other provisions of the Treaty, cannot be declared by the Commission to be compatible with the internal market. Similarly, State aid, certain of the conditions of which contravene the general principles of EU law, such as the principle of equality of treatment, cannot be declared by the Commission to be compatible with the internal market (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraphs 50 and 51; see, to that effect, judgment of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraph 44).
41 In addition, in the application of Article 107(3) TFEU, the Commission enjoys wide discretion, the exercise of which involves complex economic and social assessments (see judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraph 80 and the case-law cited), with the result that judicial review must be confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with, and to verifying that the facts relied on are accurate and that there has been no error of law, manifest error in the assessment of the facts or misuse of powers (see judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 78 and the case-law cited).
42 In the present case, it should be borne in mind that the aid measure at issue consists in direct grants to undertakings affected by the COVID-19 outbreak in order to ensure that they continue to have sufficient liquidity. Thus, the viability of the undertakings in receipt of the aid is not undermined and therefore the continuity of their economic activity during and after the outbreak is preserved. In addition, in order to be considered compatible with the internal market, the aid scheme must meet the criteria established by the temporary framework.
43 In the initial decision and the contested decision, the Commission found that the normal functioning of the credit markets was seriously disturbed by the COVID-19 outbreak, which affected the wider economy and the real economy of the Member States. Furthermore, it follows from the contested decision, read in the light of the temporary framework, the initial decision and previous decisions not to raise objections against the first and second amendments of the initial scheme, that the lockdown measures adopted by the Member States affect undertakings and that the aid measures are justified, for a limited period, in order to remedy the liquidity shortage faced by those undertakings and to ensure that the disruptions caused by the outbreak of COVID-19 do not undermine their viability, especially that of SMEs.
44 The applicants submit, like the Commission, that the hotel sector in the Netherlands was seriously affected by the COVID-19 outbreak and by the governmental measures, and that aid measures such as those covered by the contested decision are necessary to remedy this. The applicants therefore do not dispute the necessity of the aid measure at issue, as they confirmed at the hearing.
45 Accordingly, it must be found that the objective of the aid scheme at issue satisfies the conditions set out by Article 107(3)(b) TFEU, since the existence of both a serious disturbance in the Netherlands economy because of the COVID-19 outbreak and significant negative effects of the latter on several sectors of activity including the Netherlands hotel sector is established to the requisite legal standard in the contested decision.
46 It is necessary now to examine the applicants’ arguments that, first, the amount of the aid measure at issue is not capable of remedying the serious disturbance in the economy appropriately, secondly, the enterprises in receipt of aid are treated differently even though they are in a comparable situation and, thirdly, the aid measure at issue is disproportionate in comparison to its objective.
Inappropriateness of the aid measure
47 By their arguments regarding the allegedly inappropriate nature of the aid measure at issue to remedy the serious disturbance in the economy, the applicants submit, in essence, that the maximum amount of the aid granted to large enterprises is insufficient to achieve the objectives pursued by the aid scheme at issue.
48 In that regard, it should be borne in mind that there is no obligation for the Member States to grant aid intended to remedy a serious disturbance in the economy within the meaning of Article 107(3)(b) TFEU. More specifically, first, while Article 108(3) TFEU requires Member States to notify their plans as regards State aid to the Commission before they are put into effect, it does not, however, require them to grant any aid (order of 30 May 2018, Yanchev, C‑481/17, not published, EU:C:2018:352, paragraph 22). Secondly, an aid measure may be directed at remedying a serious disturbance in the economy, in accordance with Article 107(3)(b) TFEU, irrespective of the fact that it does not remedy that disturbance in its entirety. Consequently, it does not follow from either Article 108(3) TFEU or Article 107(3)(b) TFEU that Member States are obliged to remedy in its entirety a serious disturbance in their economy.
49 Furthermore, in the present case, it follows from paragraph 42 of the initial decision and paragraph 3 of the contested decision that the aid measure at issue is part of a series of measures adopted by the Netherlands authorities in order to remedy the serious disturbance in the economy of the Netherlands.
50 Those findings cannot be called into question by the applicants’ arguments concerning the measures allegedly adopted by some large enterprises in the hotel sector. Given that no obligation is imposed on Member States to grant aid to enterprises, even in a time of serious crisis in their respective economies, it is up to each enterprise to adopt the decisions and strategies that it considers to be the best adapted to the context.
51 In those circumstances, the applicants’ argument that the Commission erred in law because the amount of the aid measure is insufficient to remedy effectively a serious disturbance in the economy must be rejected as ineffective.
Observance of the principal of equality of treatment
52 The applicants submit, in essence, that the large enterprises were affected by the COVID-19 outbreak and by the government restrictions in the same manner as SMEs and that, consequently, they are in a comparable situation. The aid measure at issue would grant almost the same amount of aid to SMEs and to large enterprises without taking into consideration the fact that the large enterprises suffered a loss in turnover considerably greater than the average loss in turnover suffered by enterprises active in the same sector of the economy. It is necessary therefore to determine whether the measure complies with the principal of the equality of treatment.
53 In accordance with the case-law, observance of the principle of equality of treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 1 March 2017, SNCM v Commission, T‑454/13, EU:T:2017:134, paragraph 305 and the case-law cited).
54 The elements which characterise different situations, and hence their comparability, must, in particular, be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26).
55 It follows from the temporary framework that, while it is true that the outbreak of COVID-19 affected all undertakings, SMEs were particularly exposed to a severe lack of liquidity. In that context, well-targeted public support, granted in particular by the Member States, was considered as necessary to support, in particular, SMEs, in order to ensure that sufficient liquidity was available on the market in order to counter the damage inflicted on healthy undertakings and to preserve the continuity of economic activity during and after the COVID-19 outbreak. Accordingly, State aid was justified and could be declared compatible with the internal market on the basis of Article 107(3)(b) TFEU, for a limited period, to remedy the liquidity shortage faced by undertakings, and ensure that the disruptions caused by the outbreak of COVID-19 did not undermine their viability, especially of SMEs.
56 It should therefore be noted that the temporary framework, which is the reference framework for assessing whether an aid measure granted in the context of the COVID-19 outbreak is compatible with the internal market pursuant to Article 107(3)(b) TFEU, recognises that SMEs are in a particular situation compared to larger undertakings, even though larger undertakings may also be included in an aid scheme.
57 It should also be noted that the Netherlands authorities, contrary to what the applicants claim and as follows from paragraph 7 of the initial decision, have clearly set out and justified the particular situation of SMEs in the national economy. According to those authorities, not only were SMEs particularly affected by the COVID-19 outbreak, but they represented almost all of the registered companies and provided 71% of the employment. The Netherlands authorities thus considered that it was the continuity of the activities of those undertakings in particular that had to be preserved. Those considerations were referred to in paragraph 3 of the contested decision and the applicants do not dispute their correctness.
58 Furthermore, as the Commission rightly found, in the act notifying the amendment of the initial scheme that resulted in the contested decision, the Netherlands authorities had indicated that ‘larger companies (non SMEs) did not have access to the scheme yet, because the Netherlands government expected enough private credit to be available for those companies to finance their fixed costs. However, due to the longer duration of the pandemic and the associated measures, more companies face difficulties in obtaining private credit. Since also the own reserves of these companies are shrinking, the Netherlands government considers aid for these companies necessary’.
59 Accordingly, it must be found that SMEs and large enterprises, such as Bastion, were not in a comparable situation both as regards the provisions of the temporary framework of State aid measures seeking to support the economy in the context of the COVID-19 outbreak and as regards the situation of SMEs in the Netherlands economy.
60 In those circumstances, the applicants’ argument that, in essence, the Commission erred in law by treating large enterprises and SMEs differently, even though they were in a comparable situation, must be rejected as unfounded.
Disproportionality of the aid measure
61 By their arguments concerning the allegedly disproportionate nature of the aid measure at issue, the applicants submit, in essence, that the measure distorts competition given that the amount of the aid that SMEs are entitled to, compared to that which large enterprises may claim, is proportionately more significant when viewed in relation to the reduction in turnover suffered. According to the applicants, that enables SMEs to be more competitive.
62 In that regard, it should be noted that, in its decision of 9 February 2021 not to raise objections regarding the second amendment of the initial scheme, the Commission determined, in particular, that sub-measure (a), the application of which was extended to large enterprises by the contested decision, satisfied the four cumulative conditions to be State aid. In particular, paragraph 59 of that decision expressly states that the measure is liable to distort competition since it strengthens the competitive position of its beneficiaries. In the contested decision, the Commission found that the amendment of the aid scheme notified did not affect its categorisation as State aid as established in the decision relating to the second amendment of the initial scheme.
63 Furthermore, it should be noted that, in order for a measure to constitute State aid within the meaning of Article 107(1) TFEU, it must necessarily confer a selective advantage on an undertaking or a group of undertakings and, thus, strengthen the competitive position of its beneficiaries. Indeed, during the hearing, the applicants agreed that the ability of an aid to distort competition and its selective nature are inherent characteristics of the concept of ‘State aid’. In so far as the different categories of beneficiaries of State aid are not in a situation which is legally and factually comparable, the difference in treatment between them cannot, as such, imply restrictive effects that go beyond what is necessary for the aid to attain the objectives permitted by the Treaty.
64 Accordingly, in the present case, the fact that large enterprises suffer a competitive disadvantage compared to SMEs cannot amount to a serious difficulty obliging the Commission to initiate the procedure provided for in Article 108(2) TFEU.
65 As regards the applicants’ argument that the Commission is released from its obligation to weigh the beneficial and adverse effects of the aid only where the aid measure notified is necessary, appropriate and proportionate in order to achieve its objective, it should be noted that it is based on a misreading of the judgment of 17 February 2021, Ryanair v Commission (T‑238/20, under appeal, EU:T:2021:91).
66 The applicants infer from paragraph 68 of the judgment of 17 February 2021, Ryanair v Commission (T‑238/20, under appeal, EU:T:2021:91), that Article 107(3)(b) TFEU imposes on the Commission an obligation to weigh the beneficial effects of the aid against its adverse effects on trading conditions and undistorted competition in the internal market where the conditions raised by that provision, namely that the Member State concerned is confronted with a serious disturbance in its economy and that the aid measures adopted to remedy that disturbance are, first, necessary for that purpose and, secondly, appropriate and proportionate.
67 In paragraph 68 of the judgment of 17 February 2021, Ryanair v Commission (T‑238/20, under appeal, EU:T:2021:91), the Court, comparing the provisions of Article 107(3)(b) TFEU with those of Article 107(3)(c) TFEU, held that the aid measures referred to in Article 107(3)(b) TFEU were presumed to be adopted in the interests of the European Union provided that the Member State concerned is indeed confronted with a serious disturbance in its economy and that the aid measures adopted to remedy that disturbance are, first, necessary for that purpose and, secondly, appropriate and proportionate, and that, consequently, contrary to what is provided for in Article 107(3)(c) TFEU, the Commission is not required to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition.
68 The Court concluded in paragraph 69 of the judgment of 17 February 2021, Ryanair v Commission (T‑238/20, under appeal, EU:T:2021:91) that Article 107(3)(b) TFEU does not require the Commission to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition, contrary to what is laid down in Article 107(3)(c) TFEU, but only to ascertain whether the aid measure at issue is necessary, appropriate and proportionate in order to remedy the serious disturbance in the economy of the Member State concerned.
69 In any event, it should be noted that the applicants do not claim that the aid measure at issue was not necessary and they have not demonstrated that it was not appropriate and proportionate. Accordingly, the applicants’ argument concerning the Commission’s obligation to weigh the beneficial effects of the aid against its adverse effects on trading conditions and competition in the internal market must be rejected as unfounded.
70 In the light of all of the above, the first plea must be rejected as being in part unfounded and in part ineffective.
The second plea in law, alleging infringement of the obligation to state reasons
71 The applicants submit, in essence, that, in the contested decision, the Commission has not sufficiently stated its reasons for deciding not to raise objections as to the compatibility of the aid measure with the internal market. In particular, the Commission did not address the appropriateness and proportionality of the distinction between SMEs and other undertakings, despite the fact that that distinction forms an integral part of the aid measure and threatens to distort competition.
72 Moreover, without taking into consideration the fact that SMEs were already eligible to receive aid from June 2020 under the previous schemes, the Commission deemed a further increase of the aid available to SMEs appropriate, without deliberating on the proportionality of that aid.
73 As regards the very short period within which the decision was adopted, the applicants submit that the specific context of the COVID-19 pandemic should not diminish the Commission’s obligation to state reasons anymore. They argue that the procedures put in place since the beginning of pandemic allow the Commission to focus more on the statement of reasons for its decisions. Therefore, according to the applicants, while being to some degree a relevant factor to take into consideration, the urgency of deciding on State aid measures is not a valid justification for the lack of reasoning in the decision.
74 The Commission disputes the applicants’ arguments.
75 It must be borne in mind that, although the statement of reasons for an EU measure required by Article 296(2) TFEU must show clearly and unequivocally the reasoning of the author of the measure in question, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review, it is not required to go into every relevant point of fact and law. In addition, the question whether the duty to state reasons has been satisfied must be assessed with reference not only to the wording of the measure but also to its context and the whole body of legal rules governing the matter in question (see judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 75 and the case-law cited).
76 In the present case, the contested measure is a decision not to raise any objections under Article 108(3) TFEU. It follows from the case-law that such a decision, which is taken within a short period of time, must simply set out the reasons for which the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market, and that even a succinct statement of reasons for that decision must be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in Article 296(2) TFEU if it nevertheless discloses in a clear and unequivocal fashion the reasons for which the Commission considered that it was not faced with serious difficulties, the question of whether the reasoning is well founded being a separate matter (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 199 and the case-law cited).
77 As regards the context of the contested decision, it is characterised by the COVID-19 outbreak and the extreme urgency with which the Commission, first of all, adopted the temporary framework, providing both Member States and undertakings affected by the consequences of that outbreak with some guidance, then examined the measures that were notified to the Commission by those States, in particular, pursuant to that framework, and finally adopted the decisions relating to those measures, including the contested decision. In that regard, it follows from paragraphs 19 and 20 above that only seven days passed between the notification of the aid scheme at issue and the adoption of the contested decision.
78 Despite the nature of the contested decision and the exceptional circumstances surrounding its adoption, it should be noted that it contains 19 paragraphs – to which must be added inter alia the 86 paragraphs of the decision relating to the second amendment of the initial scheme that forms an integral part of the statement of reasons for the contested decision – and makes it possible to understand the factual and legal grounds on which the Commission decided not to raise objections to the aid scheme at issue. Thus, in the contested decision, the Commission set out, albeit sometimes succinctly, in view of the urgency of the matter, the reasons why the aid scheme at issue satisfied the conditions laid down in Article 107(3)(b) TFEU.
79 As regards the applicants’ argument that, where operators are placed in a comparable situation, the Commission is required to set out, in the context of a specific statement of reasons, how the difference in treatment established by the aid measure at issue is objectively justified, it suffices to recall that, in the present case, as noted in paragraph 59 above, SMEs and large enterprises were not in a comparable situation.
80 Furthermore, and in any event, since the contested decision, read in the light of the initial decision and the earlier decisions relating to amendments of the initial scheme, sets out, first, the characteristics of the aid scheme, including the eligibility criteria for it, and, secondly, albeit succinctly, the reasons why the Commission considered that that scheme was compatible with the internal market, it both enables the applicant to exercise its right to an effective remedy and enables the Court to exercise its power of review.
81 The applicants’ argument that the Commission did not take into account the aid that SMEs were able to receive under earlier measures is unfounded. While it is true that the contested decision does not contain a specific statement of reasons relating to the consideration of previous aid, it follows from the general scheme of that decision, and, in particular, from the fact that it concerns the amendment of the existing aid scheme, that the Commission did not assess the current aid scheme independently of the aid granted previously under the same legal framework. It should be noted inter alia, first, that it follows from paragraph 8(c) of the contested decision that the aid ceiling granted to SMEs in the context of sub-measure (a) for the period from January to March 2021 was increased from EUR 90 000 per undertaking, as provided for by the decision relating to the second amendment to the initial scheme, to EUR 550 000, and, secondly, that the nominal value of the aid granted in accordance with section 3.1 of the temporary framework cannot exceed the limit fixed in that section. It follows that the Commission took into account the aid that SMEs were able to receive for the same period.
82 That finding cannot be called into question by the arguments that the applicants derive from the judgment of 19 May 2021, Ryanair v Commission (KLM; Covid-19) (T‑643/20, EU:T:2021:286). In that case, in order to examine the compatibility of the aid measure with the internal market, it was necessary to take into account operational, economic and organisational links between the Air France-KLM holding company and its subsidiaries Air France and KLM in order to assess the impact of the aid previously granted to another company in the same group of undertakings. That examination presupposed that the amount of aid, the beneficiary of the aid and the absence of a risk of cross-financing between the Air France-KLM holding company, KLM and Air France had been determined beforehand. The contested decision in that case did not include a sufficient statement of reasons in that regard.
83 That is not the situation in the present case, since it follows from the contested decision, read in the light of the decision relating to the second amendment of the initial scheme, that the maximum amount of aid that SMEs may receive for the period concerned is limited to EUR 550 000, which entails taking into account the aid already received for that period. As the potential number of SME recipients of the aid could be unlimited, the Commission cannot be required to provide a specific statement of reasons in respect of each of them.
84 Consequently, the second plea must also be rejected as unfounded and, accordingly, the action must be dismissed in its entirety.
Costs
85 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those of the Commission, in accordance with the form of order sought by the latter.
86 In addition, under Article 138(1) of the Rules of Procedure, the Member States and the institutions which intervened in the proceedings are to bear their own costs.
87 The Kingdom of the Netherlands must therefore be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Bastion Holding BV and the other applicant parties whose names are listed in the annex to bear their own costs and to pay those incurred by the European Commission;
3. Orders the Kingdom of the Netherlands to bear its own costs.
Delivered in open court in Luxembourg on 10 May 2023.
Acting Registrar | | President |