48 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY economic crisis, the Commission handles these notifications within a couple of working days (unlike “normal” cases where the notification procedures last for months, sometimes for years). As usual, the Commission applies this exemption also restrictively, and the jurisprudence of the EU Courts supports this approach50. This strict application requires to take into account, in particular, the nature and the objective seriousness of the disturbance of the economy of the Member State concerned, on the one hand, and the appropriateness, necessity and proportionality of the aid to address it, on the other. In order to increase transparency and predictability, the Commission can define the detailed compatibility conditions in the “soft law” i.e. communications, guidelines, etc. The soft law is obligatory for the Commission, or at least there has to be solid ground for not applying it but rely during the compatibility assessment solely and directly on the TFEU, i.e. Article 107(3)(b) in the present case51. Thus, there are certain general conditions to comply with under this exemption to achieve the “compatible” label from the Commission. First, there has to be a serious economic disturbance in the economy of the Member State. The disturbance should not necessarily be global or EU-wide, but is has to be certainly wider than serious problems in one economic sector or one part of the given EU Member States. It goes without saying that the outbreak of the COVID-19 and its effects including the related lockdown measures caused serious disturbance in a short period of time all over Europe. Supply chains collapsed, transports were stopped, markets were suffering from both demand and supply side shocks, and the services sector has been hit as never seen before. Second, the Member State has to show that the measure effectively but also proportionately reacts to the serious disturbance and helps the undertakings hit by the crisis. Overcompensation has to be excluded, the beneficiaries cannot receive undue advantage. Furthermore, the positive effects of the measure must be properly balanced against the distortions of competition. In order to limit the distortions caused by the aid on the market to the minimum necessary the Member State has to apply some kind of safeguards depending on the type of the measure52. Third, the Commission also checks whether the measure is appropriate, e.g. targets the problem in the right way, but also whether it has significant positive impact. A measure with low budget reaching only a handful of beneficiaries has 50 See the judgment in case C-431/14 P Hellenic Republic v Commission (ECLI:EU:C:2016:145). 51 See judgment in case C-431/14 P Hellenic Republic v Commission paragraph 72. 52 This depends on the type of the aid granted. Obviously, smaller amounts have less distortive impact on competition, and so do loans and guarantees (compared to equity measures).
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