Judgment of the General Court Second Chamber, Extended Composition, 21 December 2022, Falke v Commission, T-306/21

• Date: 21 December 2022
• Year: 2022

46

Those clarifications having been made, the General Court dismisses the various complaints

challenging the appropriateness, necessity and proportionality of the eligibility criterion for the aid

scheme approved by the contested decision.

In that context, the Court emphasises in particular that, while the applicants are entitled to challenge

the necessity of that eligibility criterion, which has its origin in the Temporary Framework, by

proposing an alternative criterion that has been applied by the Commission in other decisions, such a

complaint may only be upheld if that alternative criterion clearly demonstrates that the eligibility

criterion at issue is not necessary. Furthermore, the applicants’ proposal to use the losses incurred in

the business areas affected by the COVID-19 pandemic as an alternative eligibility criterion, without

taking into account the situation of the undertaking concerned as a whole, would have greater

budgetary implications for Germany than the eligibility criterion used by the Commission. It must

therefore be held that the alternative criterion proposed by the applicants does not constitute an

‘equally appropriate’ measure capable of demonstrating that the eligibility criterion used by the

Commission was not necessary.

In terms of the restrictive effects on competition that the eligibility criterion for the approved aid

scheme entails, according to the applicants, for undertakings for which only certain activities were

affected by the COVID-19 pandemic and which, consequently, had to devote some of their resources

from activities not affected by the pandemic to the financing of the affected activities, the Court finds

that that criterion does not, in any event, give rise to restrictive effects on competition that are

manifestly disproportionate to the objective pursued by the German aid scheme of ensuring the

viability of the undertakings affected by the COVID-19 pandemic.

Moreover, contrary to what the applicants asserted, it cannot be held that the Commission failed to

fulfil its obligation to carry out an individual examination of the notified aid scheme. In that regard,

the applicants have failed to demonstrate the existence of exceptional circumstances specific to the

approved aid scheme that would have justified the Commission not applying, in the contested

decision, the eligibility criterion set out in the Temporary Framework.

In the second place, the General Court also rejects the applicants’ plea alleging infringement of

Article 108(2) TFEU. The applicants claimed, in essence, that, by having validated the notified aid

scheme without initiating the formal examination procedure, the Commission had infringed the

applicants’ procedural rights under that provision.

On that point, the Court notes that this plea is, in reality, subsidiary in the event that it did not

examine the complaints relating to the merits of the assessment of the notified aid scheme. However,

in so far as those complaints have been examined, that plea is deprived of its stated purpose.

Moreover, in so far as that plea repeats in condensed form the arguments raised in the complaints

relating to the merits of the assessment of the aid, it lacks any independent content.

In the light of those considerations, the Court dismisses the applicants’ actions.

Judgment of the General Court (Second Chamber, Extended Composition), 21 December

2022, Falke v Commission, T-306/21

(State aid – Framework system to grant support for uncovered fixed costs in the context of the COVID-19

pandemic in Germany – Decision not to raise any objections – Temporary Framework for State aid

measures – Individual examination of the aid scheme notified – Measure aimed at remedying a serious

disturbance in the economy of a Member State – Proportionality)

On 17 November 2020, the Federal Republic of Germany notified the European Commission of an aid

scheme to provide support to undertakings for their uncovered fixed costs in the context of the