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annul, pursuant to the first paragraph of Article 264 TFEU, the decision of the defendant of 20 November 2020 (State aid No SA.59289), as amended by the decision of the defendant of 12 February 2021 (State aid No SA.61744);

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order the defendant to pay the applicant’s costs.

1.

The German aid scheme ‘Bundesregelung Fixkostenhilfe 2020’ approved by the defendant is incompatible with the internal market, as it distorts competition without that being exceptionally justified in the present case. The defendant made a manifest error of assessment by deciding that an aid scheme requiring a company-wide decrease in turnover of at least 30 % was compatible with the internal market pursuant to Article 107(3)(b) TFEU. The application of the aid scheme at the level of the company would make companies, such as the applicant, which have several business areas that have been affected to varying degrees by the COVID-19 pandemic, with the store-based business having sustained a loss in turnover significantly exceeding 30 % due to closure, ineligible to apply solely because another business area does not sustain any losses in turnover and the calculation of an arithmetic mean of the turnover of different business areas leads to the 30 % threshold not being reached. Consequently, those companies, unlike companies with only one business area, might receive aid only for a fraction of the eligible period or none at all and would have to cross-finance the uncovered fixed costs of their closed business area from their other business areas. That leads to a distortion in competition both in relation to competitors in the business area affected by the pandemic and in relation to competitors in the business area unaffected by the pandemic.

2.

The defendant infringed the applicant’s procedural rights under Article 108(2) TFEU by not giving the applicant the opportunity to raise its doubts as to the compatibility of the aid scheme with the internal market in the preliminary review procedure.