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

41 revenue in the same period in 2019 reduced by any revenue in the eligible period in 2020, any other aid or compensation (the scheme was actually introduced to complement a Temporary Framework scheme), and any loss compensation from other sources (e.g. insurance or cancellation fees). The compensation measures 159 to SAS, a Scandinavian air carrier whose network primarily services Denmark, Norway and Sweden, are additional examples for the flexible use Article 107(2)(b) TFEU aid. Under the measures, the Commission approved aid in the form of state guarantees to a revolving aid facility. The methodological problem stemmed from this, as the form of aid was a guarantee, but the damage was a monetary amount, which meant that the aid element (cash value) of the guarantee had to be established somehow. According to the decision, the cash value of the guarantee should be the difference between the price of the loan guaranteed with or without the guarantee. However, in the particular circumstances (the situation of the beneficiary and the financial market situation), the Commission could not exclude that the aid should be the full amount of the loans obtained, because without the guarantee, the beneficiary possibly could not have obtained market financing at all. The decisions overcame this problem by concluding that the expected losses of the airline in the eligible period (March 2020 to March 2021, taking into account the loss of revenue caused by the COVID-19 outbreak, any additional and avoided costs, and the loss of profit), only a projection at the time, would very likely be lower than the nominal value of the loans backed by the state guarantee, and in this way, the aid would be proportionate to the losses. In any case, an ex-post mechanism to prevent overcompensation was agreed by the Member States as part of the decision. It should be noted that later, in August 2020, in addition to the guarantees approved based on Article 107(2)(b) and received in the early stages of the crisis, was complemented by recapitalisation aid 160 authorised by the Commission under Article 107(3)(b) and Section 3.11 of the Temporary Framework. This was necessary as the 159 Commission decision C(2020) 2416 final of 15 April 2020 (SA.56795 (2020/N) – Denmark – Compensation for the damage caused by the COVID-19 outbreak to Scandinavian Airlines) and Commission decision C(2020) 2784 final of 24 April 2020 (SA.57061 (2020/N) – Sweden – Compensation for the damage caused by the COVID-19 outbreak to Scandinavian Airlines). 160 Commission decision C(2020) 5750 final of 17 August 2020 (SA.57543 (2020/N) – Denmark - SA.58342 (2020/N) – Sweden COVID-19: Recapitalisation of SAS AB.