THE LEVEL PLAYING FIELD IN CRISIS MODE 55 the growth path will return in a short time. The fourth amendment introduced additional leeway for aid grantors; for example, it became possible to disregard repaid aid for the purposes of the aid ceilings in Section 3.1 of the Temporary Framework. The Commission did not hesitate for long before it extended the Temporary Framework for the entire year of 2021. On 28 January 2021, the fifth amendment77, the last to date, came out, extending the Temporary Framework for the entire calendar year of 2021 because of the dire economic forecasts for 2021 and the second wave of infections78. Moreover, the Commission significantly raised the maximum aid amounts for “limited amounts of aid” (Section 3.1 aid, to 1.8 million euros, by more than double the previous figure) and “aid for uncovered fixed costs” (Section 3.12, to 10 million euros). Also, the conversion of aid instruments under Section 3.1 aid (e.g. from loans to grants) was allowed by the amendment (until the end of 2022, i.e. beyond the current expiry of the Temporary Framework), which meant even more freedom for aid grantors. 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 overcompensation79. 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 77 Communication from the Commission 5th Amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak and amendment to the Annex to the Communication from the Commission to the Member States on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to short term export-credit insurance C(2021) 564 final 28 January 2021 78 Point 5 of the fifth amendment. 79 Points 18-19 of the fifth amendment.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==