# C_2021278EN.01006602.xml

| 12.7.2021 | EN | Official Journal of the European Union | C 278/66 |
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12.7.2021

EN

Official Journal of the European Union

C 278/66

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Action brought on 25 May 2021 — Bastion Holding and Others v Commission

(Case T-289/21)

(2021/C 278/90)

Language of the case: English

Parties

Applicants: Bastion Holding BV (Amsterdam, Netherlands) and 35 other applicants (represented by: B. Braeken and X.Y.G. Versteeg, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | principally, annul Commission decision C(2021) 1872 final of 15 March 2021 concerning the third amendment of the direct grant scheme to support the fixed costs for enterprises affected by the COVID-19 outbreak (SA.62241 (2021/N)) — the Netherlands, in so far it relates to the maximum amount of EUR 600 000 for large undertakings; |
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principally, annul Commission decision C(2021) 1872 final of 15 March 2021 concerning the third amendment of the direct grant scheme to support the fixed costs for enterprises affected by the COVID-19 outbreak (SA.62241 (2021/N)) — the Netherlands, in so far it relates to the maximum amount of EUR 600 000 for large undertakings;

| — | alternatively, annul the said decision in its entirety; |
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alternatively, annul the said decision in its entirety;

| — | additionally, order the Commission to bear the costs. |
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additionally, order the Commission to bear the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on two pleas in law.

| 1. | First plea in law, alleging the failure of the Commission to open a formal investigation procedure by wrongly deciding that the State aid measure raises no doubts as to its compatibility with the internal market.






  — | Under this ground the applicants argue, first, that the State aid measure is not suitable to pursue its objective, which is to remedy a serious disturbance in the Dutch economy, by compensating the fixed costs of undertakings that have suffered a loss of turnover of 30 % as a result of the COVID-19 outbreak and the governmental measures subsequently imposed. The maximum amount of aid is, in the applicants’ view, inappropriate to attain the objective pursued by the State aid measure. The State aid measure grants a maximum of EUR 600 000 to large undertakings. Such an amount is insufficient to remedy a serious disturbance in the Dutch economy by ensuring that undertakings remain economically viable. Especially for large undertakings such as the applicants, EUR 600 000 is not enough to effectively respond to the loss of turnover suffered as a result of the COVID-19 outbreak. |
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1.

First plea in law, alleging the failure of the Commission to open a formal investigation procedure by wrongly deciding that the State aid measure raises no doubts as to its compatibility with the internal market.

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Under this ground the applicants argue, first, that the State aid measure is not suitable to pursue its objective, which is to remedy a serious disturbance in the Dutch economy, by compensating the fixed costs of undertakings that have suffered a loss of turnover of 30 % as a result of the COVID-19 outbreak and the governmental measures subsequently imposed. The maximum amount of aid is, in the applicants’ view, inappropriate to attain the objective pursued by the State aid measure. The State aid measure grants a maximum of EUR 600 000 to large undertakings. Such an amount is insufficient to remedy a serious disturbance in the Dutch economy by ensuring that undertakings remain economically viable. Especially for large undertakings such as the applicants, EUR 600 000 is not enough to effectively respond to the loss of turnover suffered as a result of the COVID-19 outbreak.

| — | Second, the applicants maintain that the State aid measure is disproportionate. The current scheme goes beyond what is necessary in order to prevent liquidity shortages faced by SMEs and support their fixed costs. In fact, the disproportionate amount granted to SMEs allows them to be more competitive, as they are not as restricted by their fixed costs. Additionally, SMEs that received aid are not required as much as the applicants to revert (1) to their equity capital in order to remain competitive. The applicants receive a maximum amount of EUR 600 000 to keep thirty-three hotels running. SMEs, on the other hand, are eligible to receive almost the same amount of aid to tackle the liquidity shortages of only a small or medium-sized hotel. |
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Second, the applicants maintain that the State aid measure is disproportionate. The current scheme goes beyond what is necessary in order to prevent liquidity shortages faced by SMEs and support their fixed costs. In fact, the disproportionate amount granted to SMEs allows them to be more competitive, as they are not as restricted by their fixed costs. Additionally, SMEs that received aid are not required as much as the applicants to revert (1) to their equity capital in order to remain competitive. The applicants receive a maximum amount of EUR 600 000 to keep thirty-three hotels running. SMEs, on the other hand, are eligible to receive almost the same amount of aid to tackle the liquidity shortages of only a small or medium-sized hotel.

| 2. | Second plea in law, alleging procedural shortcomings by the Commission, as the contested decision contains an inadequate statement of reasons.






  — | The second ground for annulment relates to procedural shortcomings of the contested decision. The decision, according to the applicants, contains an inadequate statement of reasons, since it does not address the (justification of the) disproportionate difference in maximised aid between SMEs and larger undertakings in any shape or form. Nor does it address the appropriateness of the measure itself, or the fact that SMEs were eligible to receive aid under two previous aid measures. By its decision, the Commission has thus not enabled the applicants to ascertain the reasons for deciding that the State aid measure was deemed compatible with the internal market. This violates Article 296 TFEU. |
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2.

Second plea in law, alleging procedural shortcomings by the Commission, as the contested decision contains an inadequate statement of reasons.

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The second ground for annulment relates to procedural shortcomings of the contested decision. The decision, according to the applicants, contains an inadequate statement of reasons, since it does not address the (justification of the) disproportionate difference in maximised aid between SMEs and larger undertakings in any shape or form. Nor does it address the appropriateness of the measure itself, or the fact that SMEs were eligible to receive aid under two previous aid measures. By its decision, the Commission has thus not enabled the applicants to ascertain the reasons for deciding that the State aid measure was deemed compatible with the internal market. This violates Article 296 TFEU.

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(1)  Editorial note: the application refers to the companies concerned being required to ‘consult’ their equity capital.

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