Administrative law: On the requirements for Corona emergency aid and current problems regarding the repayment
Many traders in Germany are faced with the financial challenge that emergency corona aid is to be repaid. However, the Higher Administrative Court of North Rhine-Westphalia has now ruled in favor of those affected.
VON ALESSA HUTH
Federal and state aid programs were intended to prevent the economy from collapsing during the first lockdown. Entrepreneurs and the self-employed therefore received corresponding amounts in spring 2020.
Prerequisites for emergency aid
From a legal point of view, the emergency aid represents a so-called “grant”. Grants of this type do not have to be repaid in principle. However, this only applies if there was a “liquidity bottleneck” during the funding period, ie the total income was less than the total expenditure (e.g. rent payments).
repayment notices
So that the required money could reach those affected quickly, a complex formal procedure was dispensed with, so that the aid could be paid out without extensive checks.
The applications were only checked afterwards and recipients of grants had to state their income and expenditure during the funding period.
Corona aid has been reclaimed since 2020. A subsequent check had shown that numerous self-employed and small entrepreneurs had no liquidity bottlenecks or no “financial emergency”, so that there was no entitlement to funding at all.
On the current decision of the OVG NRW
However, in its judgment of March 17, 2022 (Az.: 4 A 1986/22), the Higher Administrative Court of North Rhine-Westphalia decided in favor of those affected that the repayment notices should be annulled.
In particular, it found that the recovery was unlawful for formal reasons alone.
Due to the time pressure in the context of the payment of the emergency aid, there were wording errors: The confirmation procedure that was carried out later was not announced at all in the approval notices. The court is therefore convinced that the wording errors meant that it was unclear to the recipients of the notifications whether the Corona aid was intended to compensate for lost sales, general payment problems or maintenance.
The ambiguous wording is therefore fundamentally at the expense of the state.
The Higher Administrative Court of North Rhine-Westphalia found in particular that the recipients of the aid could rely on being able to use the funds to compensate for financial difficulties in general.
On the other hand, however, the court also came to the conclusion that, objectively speaking, recipients of the aid could expect to have to prove what the emergency aid was actually used for. It was apparent to the recipient that the emergency aid would have to be repaid if it was not used for the intended purpose.
In particular, the court made it clear that the money paid should not compensate for lost sales, but should really only alleviate the financial distress of a company or a self-employed person. The state of North Rhine-Westphalia can therefore issue new notices that specifically determine the emergency aid that is ultimately due, so that overpaid amounts could in principle be reclaimed in the future.
Alessa Huth
lawyer
The author of this article, lawyer Alessa Huth, works at the law firm Hillmann & Partner mbB in Oldenburg, specializing in administrative law, construction law and travel law. Contact: Tel.: 0441 / 36 13 33 61; Internet: www.hillmann-partner.de; Email: [email protected]
