44 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY Then, the Commission also gave a couple of hints on how to design State measures to escape the label of State aid (general tax and employment measures, helping consumers directly), and also emphasised that economic incentives can be notified and approved under Article 107(3)(b) TFEU. This legal basis in the TFEU allows Member State to grant aid to remedy a serious disturbance in the economy of a Member State. Thereafter, the Commission mentioned that under the TFEU damages caused by exceptional occurrences can be compensated by Member States under Article 107(2)(b) TFEU, which is an option used rarely so far36. Disregarding the rapid spread of the virus, the Commission considered the application of Article 107(3)(b) TFEU only in the case of Italy in the communication37, where the consequences were disastrous in early March compared to other Member States38, Albeit the Commission did not exclude the possibility to apply Article 107(3)(b) for other Member States, it acknowledged that it was “a live and developing situation” and undertook to monitor the evolution of the virus outbreak and its impact in close contact with the Member States. Last, but not least the Commission foreshadowed, “in case of need”, the preparation of a new Temporary Framework, as it did during the 2008-2012 economic and financial crisis. To help Member States react swiftly to the development, the Commission promised that it would do its best to adopt the approving decisions within the shortest timeframe possible, namely within a couple of days instead of months. In the Annex of the communication the Commission further explained how the rules on rescue and restructuring aid39 have to be applied to ease the situation of undertakings being in financial difficulty, and how the Commission would take into account the “exceptional and unforeseeable circumstances such as the COVID-19 outbreak”. The second part of the annex dealing with State aid rules explained briefly the application of Article 107(2)(b) TFEU to make good the damage directly caused by natural disasters or exceptional occurrences from State resources. On the basis of the fact that the communication did not show a really flexible approach and only emphasised the use of the existing rules, it was a bit of a shock to see that the Commission adopted its Temporary Framework only six 36 See the cases referred to in Chapter 4.1. 37 ”Currently, the impact of the COVID-19 outbreak in Italy is of a nature and scale that allows the use of Article 107(3)(b) TFEU.”. 38 These two legal grounds and conditions required to apply them are explained in the next chapter. 39 The legal basis of the relevant guidelines is Article 107 (3)(c) TFEU.
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