JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
10 May 2023 (*)
(State aid – Measures to support small and medium-sized 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‑102/21,
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, L. Elzas and T. Hieselaar, lawyers,
applicants,
v
European Commission, represented by V. Bottka and M. Farley, acting as Agents,
defendant,
supported by
Kingdom of the Netherlands, represented by M. Bulterman and J. Langer, 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(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 (‘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 undertakings and represented 71% of the wage bill 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 and contested decision
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, by the contested decision, the Commission decided to not raise any objection against that first amendment to the initial scheme, on the ground that it was compatible with the internal market in accordance with Article 107(3)(b) TFEU.
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.
Forms of order sought
14 The applicants claim that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
15 The Commission and the Kingdom of the Netherlands contend that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
16 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
17 By the first plea in law, the applicants claim that the Commission should have initiated the formal investigation procedure, since 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, distorts competition in the Netherlands hotel market.
18 In the first place, with regard to the inappropriateness of the State aid measure to remedy the serious disturbance in the Netherlands economy as a result of the COVID-19 outbreak, the applicants claim, first, that the State aid measure is selective as it favours SMEs over large enterprises with more than 250 employees which are in a comparable situation with regard to the loss of turnover caused by the COVID-19 outbreak.
19 According to the applicants, even though the temporary framework states that the COVID-19 outbreak affects undertakings irrespective of their sector of activity and size, the current aid scheme draws a distinction based on inappropriate factors for attaining the objective pursued, namely maintaining sufficient liquidity in the market to ensure that the disruption caused by the outbreak does not undermine the viability of undertakings and thus preserves the continuity of economic activity during and after the outbreak. Consequently, the current scheme is not in line with the temporary framework.
20 According to the applicants, SMEs and Bastion are in a situation which is legally and factually comparable, if not similar, since Bastion has been affected by the outbreak at least as much as its competitors which are SMEs. The fact that the number of undertakings able to claim entitlement to the measure at issue is very large, namely 90% of the undertakings, is not capable of refuting the selectiveness of the State aid measure.
21 Secondly, the applicants argue that the Netherlands authorities have not put forward sufficiently specific and detailed arguments justifying the selectiveness of the State aid measure. The fact that SMEs account for the majority of the registered companies and provide most of the employment in the Netherlands has no bearing on the repercussions of the COVID-19 outbreak on undertakings. Moreover, the nature of the scheme does not justify a distinction in the measure between SMEs and other undertakings since the Netherlands authorities have stated that the measure was intended to support undertakings with a more tailor-made aid measure which takes account of the size of fixed costs.
22 Thirdly, the applicants claim that the maximum amount of the aid is insufficient to remedy effectively a serious disturbance in the market.
23 Fourthly and lastly, the applicants submit that excluding large enterprises from being eligible to receive the aid renders the aid measure both inappropriate and disproportionate.
24 In the second place, the applicants claim, in essence, that the aid measure distorts competition in so far as, first, Bastion’s competitors which are SMEs receive aid which relieves them from their debt or a part thereof, which allows them to be more competitive and, secondly, it constitutes operating aid.
25 The Commission and the Kingdom of the Netherlands dispute the arguments of the applicants.
26 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.
27 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).
28 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).
29 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).
30 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).
31 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 equal 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).
32 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).
33 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.
34 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 initial decision and the temporary framework, 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.
35 The applicants submit, like the Commission, that the hotel sector in the Netherlands was seriously affected by the COVID-19 outbreak and by the measures adopted in that context by the national authorities, 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.
36 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.
37 As regards the applicants’ arguments concerning the selective nature of the aid measure and the fact that it distorts competition, they must be rejected at the outset as ineffective.
38 It follows from the contested decision, read in conjunction with the initial decision, that one of the eligibility criteria for that aid scheme is that the undertaking requesting the aid must be an SME carrying out its activity in the sectors specifically mentioned in the contested decision, including that of hotel accommodation services.
39 Article 2 of Annex I of Regulation No 651/2014 defines the category of SMEs as being made up of 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.
40 In the initial decision, during the assessment of the lawfulness of the aid measure, the Commission had itself established that the measure satisfied the four cumulative conditions in order to constitute State aid within the meaning of Article 107(1) TFEU. The Commission submitted that (i) the measure was imputable to the State and financed through State resources, (ii) it conferred an advantage on its beneficiaries in the form of direct grants which thus relieved them of the costs that they would have had to bear under normal market conditions, (iii) the advantage conferred by the measure was selective, since only some undertakings active in sectors specifically mentioned were able to benefit from it, and (iv), the measure was liable to distort competition, since it strengthened the competitive position of its beneficiaries.
41 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 initial decision. In particular, the Commission considered that, despite the enlargement of the range of beneficiaries through the inclusion of new sectors of activity, the advantage conferred by the measure was granted only to some undertakings.
42 It must therefore be held that, by their arguments concerning the selective nature of the aid measure and the fact that it distorts competition, the applicants merely demonstrate what the Commission had already established in the contested decision. Moreover, at the hearing, the applicants admitted that those characteristics were inherent in the concept of ‘State aid’.
43 As regards Bastion’s argument that the aid measure at issue is disproportionate with respect to the objective pursued, it should be noted that that argument was put forward for the first time at the reply stage and subsequently reiterated at the hearing. Since the applicants have not invoked any relevant matters of law or fact which came to light only in the course of the proceedings, it must be found that the exceptional conditions provided for in Article 84(2) of the Rules of Procedure of the General Court are manifestly not satisfied. In any event, although the applicants submit – and only at the reply stage – that limiting the eligibility to the aid to only SMEs has an immediate adverse effect on competition, they do not show that the measure unduly distorts competition and that its effects go beyond what is necessary in order to achieve the objective pursued. Accordingly, that argument must be rejected as inadmissible and, in any event, as unfounded.
44 Furthermore, the applicants do not claim that they suffered a lack of liquidity such that their viability was undermined. On the contrary, they claim only that, because of the loss of turnover, their investment programme and construction of new hotels is more difficult to complete.
45 The applicants submit, however, first, that the aid measure at issue is inappropriate because large enterprises are excluded from the benefit of the aid even though they are in a situation which is legally and factually comparable to that of SMEs and, secondly, that the maximum amount of aid is insufficient to achieve the objective set by the Netherlands authorities. It is necessary therefore to determine whether the measure complies with the principal of the equality of treatment and whether it is appropriate to achieve its objective.
Observance of the principal of equality of treatment
46 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).
47 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).
48 It follows from the temporary framework, the lawfulness of which is not disputed by the applicants, 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 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.
49 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.
50 It is also necessary to note 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 not amended by the contested decision and the applicants do not dispute their correctness.
51 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 circumstances characterising the Netherlands economy.
52 That conclusion cannot be called into question by the arguments that the applicants derive from the judgment of 29 September 2000, CETM v Commission (T‑55/99, EU:T:2000:223). In that case, the applicant criticised the Commission for, inter alia, having considered the aid measure at issue, which had not been notified in advance to the Commission, as a selective measure that distorted competition and affected trade between Member States and, accordingly, as incompatible with the internal market within the meaning of Article 92(1) of the EC Treaty (subsequently Article 87(1) EC, now Article 107(1) TFEU). As Bastion submits, in its judgment, the Court ruled that the Commission had correctly considered that the aid measure was, inter alia, selective, since it was intended to benefit, and did in fact benefit, among users of commercial vehicles, only natural persons, SMEs, local and regional public bodies and bodies providing local public services. The Court stated that the other users of that type of vehicle, namely large enterprises, did not have access to the aid measure, even where they, like the beneficiaries of that aid, satisfied the other conditions.
53 It should be noted that in the present case, contrary to the case which gave rise to the judgment of 29 September 2000, CETM v Commission (T‑55/99, EU:T:2000:223), none of the parties dispute either the selective nature of the aid measure nor the fact that it distorts or has the potential to distort competition.
54 Furthermore, contrary to the applicants’ submissions, the fact that the aid scheme was subsequently amended in order to include undertakings currently excluded from receiving the aid is not such as to lead, by itself, to the unlawfulness of the scheme. It should be recalled that the grant of public funds under Article 107(3)(b) TFEU presupposes that the aid provided by the Member State concerned, even though it is in serious difficulty, is capable of remedying the disturbances in its economy, which presupposes that the situation of the undertakings likely to enable the economy to recover and, in particular, to contribute to maintaining employment is taken into account as a whole. Bearing in mind that the resources which may be allocated by the Member State concerned are finite and must therefore address priorities, it cannot be forgotten that that Member State had to take into consideration first of all the undertakings which, although smaller than the applicants, represent the category covering almost all the economic actors in the national territory, which was an even more vital issue for the preservation of stable economic growth and sustainable employment.
55 In addition, it does not follow from either Article 108(3) TFEU or Article 107(3)(b) TFEU that Member States are obliged to make good the entirety of the damage caused by an exceptional occurrence, such that they likewise cannot be required to grant aid to all of the victims of that damage (see, by analogy, judgment of 14 April 2021, Ryanair v Commission (SAS, Denmark, COVID-19), T‑378/20, under appeal, EU:T:2021:194, paragraph 24).
56 In those circumstances, the applicants’ argument that the Commission erred in law because large enterprises were excluded from receiving the aid even though they are in a situation which is legally and factually comparable to that of SMEs must be rejected as unfounded.
The inadequate amount of the aid
57 As regards the applicant’ arguments alleging that the amount of the aid is inadequate, it should be noted that, as the Commission and the Kingdom of the Netherlands correctly submitted, 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.
58 Furthermore, in the present case, it follows from paragraph 42 of the initial decision, which forms an integral part 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 their economy.
59 In those circumstances, the applicants’ argument that the Commission committed an error of law because the amount of the aid measure is insufficient to remedy effectively a serious disturbance in the economy must be rejected as ineffective.
60 In the light of all of those considerations, the first plea must be rejected.
The second plea in law, alleging infringement of the obligation to state reasons
61 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 view of the selectivity of that measure. They consider, in particular, that they have not been able to identify the reason why the distinction between SMEs and other undertakings was not deemed to be incompatible with the internal market.
62 Moreover, the Commission failed to take account of the fact that SMEs had already been eligible for the payment of aid since June 2020 under the initial measure, which allows SMEs to be more competitive and unduly disadvantages other undertakings.
63 The Commission disputes the applicants’ arguments.
64 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 (judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 75 and the case-law cited).
65 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).
66 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 notified 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 10 and 12 above that only seven days passed between the notification of the aid scheme at issue and the adoption of the contested decision.
67 Despite the nature of the contested decision and the exceptional circumstances surrounding its adoption, it should be noted that it contains 23 paragraphs – to which must be added the 45 paragraphs of the initial decision that form an integral part of the reasons for the contested decision – and make 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.
68 As regards, in particular, the statement of reasons for the contested decision concerning the exclusion of undertakings other than SMEs from the benefit of the aid, it should be recalled that the Court of Justice has already held that the obligation to state reasons is in principle restricted to the reasons for which a given category of operators is to benefit from a given measure and does not mean that it is necessary to justify the exclusion of all other operators which are not in a comparable situation. Since the number of categories excluded from the benefit of a measure is potentially unlimited, the Commission cannot be under a duty to provide specific reasoning in relation to each of them (see, to that effect, judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 81).
69 In the present case, which concerns an aid scheme intended to apply to almost the entire economy of a Member State, with the result that the number of operators excluded from the benefit of the scheme may potentially be unlimited, the Commission’s obligation to state reasons does not go so far as to require it to examine whether all or some of the operators thus excluded are in a situation comparable to that of the beneficiaries of the aid and to justify, where appropriate, the exclusion of all of those operators from receiving the aid.
70 Furthermore, and in any event, since the contested decision, read in the light of the initial decision, 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 applicants to exercise their right to an effective remedy and enables the Court to exercise its power of review.
71 Consequently, the second plea must also be rejected as unfounded and, accordingly, the action must be dismissed in its entirety.
Costs
72 Under Article 134(1) of the Rules of Procedure, 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.
73 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.
74 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 |