During the Corona period, entrepreneurs were able to apply for aid to maintain their operations. In many cases, the aid is now being demanded back in whole or in part. However, the legal framework for granting aid and reclaiming it is often not transparent for the entrepreneur.
UWhat kind of aid is this?
- Corona emergency aid
- Bridging aid I
- Bridging aid II
- Bridging aid III
- Bridging aid III plus
- Bridging aid IV
- November help
- Restart assistance
- Restart help plus
Under what conditions can the aid be reclaimed?
The aid granted can only be reclaimed if the corresponding approval decision is legally revoked.
If no untrue information was provided when submitting the application, the approval notice can only be revoked under the conditions of Section 49 VwVfG (in the version of the respective federal state).
These requirements must be examined in detail on a case-by-case basis. In particular, the original approval notice must clearly and unambiguously show that
- that this is only a provisional approval of the aid,
and - under what specific conditions the approval notice can be revoked.
Provisional nature of the approval
In order for the approval decision to be revoked, its revocation must be specified in the decision. It is sufficient if the authority describes the decision as “provisional” or states that a decision on the “final” approval will be made later.
Description of the requirements for revocation in the notice
Furthermore, the notice itself must state the conditions under which the approval notice can be revoked.
The relevant requirements must be stated in an understandable and transparent manner.
It is permissible to refer to the relevant guidelines in the notice, provided they are publicly available. The guidelines in the version valid at the time the original decision was issued must be used as a basis for assessing legality. Subsequent changes to the guidelines are irrelevant.
Ambiguities have a detrimental effect on the authority. This has the “formulation sovereignty” regarding the revocation reservations and is therefore in its own hands to formulate them in an understandable and transparent manner.
So-called failure of purpose
If the authority wants to make the final destination of the aid dependent on the aid being used for a specific purpose, the corresponding purpose must also be listed in the decision.
This purpose alone applies in the wording listed in the notice.
Mere expectations of the authority as to how the aid is to be used are irrelevant.
If the Corona emergency aid was granted to overcome “liquidity difficulties”, its reclaim cannot be justified by the fact that the entrepreneur did not use the aid for ongoing costs, but rather for investments.
Which deadlines must be observed?
Upon receipt of a cancellation notice, an objection must be lodged or an action brought before the administrative court within one month (depending on the federal state).
Once this period has expired, the notice of cancellation becomes final.
How should the chances of success be assessed?
The chances of success cannot be assessed across the board, but require an examination on a case-by-case basis. The legal implications of this are complex.
