THE LEVEL PLAYING FIELD IN CRISIS MODE 45 days later, on 19 March 2020, to allow State aid to be granted under Article 107(3)(b). 4. THE TFEU’S CORE PROVISIONS AS LEGAL BASE TO HANDLE THE IMPACTS OF THE PANDEMIC There are two main provisions in Article 107 of the TFEU, Article 107(2)(b) and Article 107(3)(b), which were referred to in Commission decisions to assess the compatibility of aid measures to handle the impacts of the COVID-19 pandemic. The first is Article 107(2)(b), which explicitly mentions compensation for damage caused by natural disasters or exceptional occurrences as compatible with the internal market. The second is Article 107(3)(b), under which the Commission may approve aid compatible with the internal market if it remedies a serious disturbance in the economy of a Member State. They will be explained in the next section in the order of their appearance in the TFEU. Article 107(3)(c) TFEU has also been cited by COVID-19 related decisions of the Commission, but only exceptionally, in a limited number of cases. 4.1. Article 107(2)(b) Under Article 107(2) TFEU the aid categories listed there “shall be compatible with the internal market”. This means that once the conditions of the granting are present, the Commission has no broad discretion to assess the compatibility40, but has to acknowledge in its decision that the aid is compatible. Nevertheless, Member States still have to notify these aid plans under Article 108(3) TFEU to the Commission ex ante and have to wait with the granting of the aid until the Commission declares the compatibility of the aid. Under the relevant jurisprudence, the compatibility has three cumulative conditions. First, the measure has to be strongly linked to an exceptional occurrence or a natural disaster. Leaving aside natural disasters, this legal basis was applied in relation of unforeseeable events, in a way that no market player could expect 40 See the judgments in case C-730/79 Philip Morris v Commission (EU:C:1980:209), paragraph 17, and related to the terror attacks of 9/11 the judgment in case T-268/06 Olympiaki Aeroporia Ypiresies v Commission (EU:T:2008:222), paragraph 51.
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