The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

23 Remarkably, and against the general trend of granting more room to manoeuvre for aid grantors, the fifth amendment hardened the Commission’s stance on Article 107(2)(b) aid (compensation of losses caused by exceptional occurrences). While the Commission did not question the applicability of this legal basis in the current circumstances, it highlighted in the fifth amendment that compensatory aid on this legal ground can only be granted to businesses directly affected by restrictive measures (e.g. restaurants that were closed administratively), and Article 107(2)(b) aid cannot be used when the containment measures do not directly impact the business of a company or to address the effects of the economic downturn at the level of the company (these can be mitigated through Article 107(3)(b) TFEU aid, i.e., aid under the Temporary Framework). The amendment also promised a more rigorous approach by the Commission to prevent overcompensation. 78 These changes meant that the Commission would only authorise Article 107(2)(b) aid to beneficiaries whose activities have been de facto or de iure curtailed by COVID-19 related administrative measures, and only losses quantifiably caused by these measures (and not by the general economic downturn) would be eligible for aid, with the Member State notifying the measure to give evidence about the extent of the measure and the quantity of damage directly caused by it. The Commission’s work, of course, went far beyond adopting and adjusting the rules of the Temporary Framework. All the legal bases described or referred to above except for block-exempted or de minimis measures required Member States to notify their measures to the Commission under Article 108(3) TFEU. The gravity of the pandemic and the resulting crisis is illustrated by the fact that in 2020, between March and the end of the year, the Commission adopted more than 600 decisions 79 (including Temporary Framework, Article 107(2)(b), Article 107(3)(b) and Article 107(3)(c) TFEU measures) that authorised Member States’ measures adopted (including modifications to measures) to combat the economic effects of the pandemic. The amount of aid authorised is also a striking number: according to statistics made available by the Commission, in the one and a half months after the adoption of the Temporary Framework (between 19 March and 8 May 2020), the Commission authorised 1.9 trillion euros of aid for COVID-19 related 78 Points 18-19 of the fifth amendment. 79 Based on the Commission’s State aid case register, available in https://ec.europa.eu/competition/elojade/isef/ ( accessed on 10 March 2020).