OVG: Unlawful reclaim of Corona emergency aid


Because things had to be done very quickly, the country made mistakes in spring 2020. The OVG NRW decided that the recovery of Corona aid because of these errors was unlawful. However, the country gets back any aid that is not needed.

In the dispute over the recovery of Corona emergency aid, the North Rhine-Westphalian Higher Administrative Court (OVG) in Münster decided on Friday that the recovery claims were unlawful and the recovery notices should therefore be revoked. The Higher Administrative Court thus agreed with the view of the administrative courts from the previous instance. However, according to the court’s instructions, the state can reissue the final decisions and thus reclaim overpaid amounts (ruling of March 17, 2023, Az. 4 A 1986/22, etc.). The court did not allow an appeal. Complaints can be lodged with the Federal Administrative Court in Leipzig.

The plaintiff recipients of emergency aid, including a tax consultant, the owner of a cosmetics studio and the operator of a fast-food restaurant, each received 9,000 euros in emergency aid as self-employed or entrepreneurs in spring 2020. Federal and state aid programs were intended to prevent the economy from collapsing during the first lockdown.

A few months later, the state sent final decisions and each demanded back around 7,000 euros. Due to the time pressure, there were wording errors – and they would have led to understandable, false expectations among the recipients of the notifications, according to the OVG. It remained unclear whether the help was intended to replace lost sales, payment problems or maintenance.

Ambiguous wording is at the expense of the country

The funds from state and federal programs based on EU law were intended exclusively to alleviate financial emergencies caused by the pandemic. This was intended to bridge liquidity bottlenecks in particular. However, the feedback procedure later initiated by the state found no basis in the approval notices, the OVG. The state had requested information that was ultimately unsuitable for determining the correct amount of funding. “The extent to which funding was actually used during the approval period as part of the earmarking of the funding could not be stated there,” says the reasoning for the judgment.

“If something is formulated in a misleading way, it’s at the expense of the state,” said presiding judge Wolf Sarnighausen. In the oral hearing, which lasted more than seven hours, he criticized both the country and the expectations of some applicants. Although the country had formulation problems, it should have been clear to everyone that too much money had to be repaid.

He admitted to the country that the mistakes were made under great time pressure, “in the interest of quick help”. The country had made contradictory statements. For example, the information in the application did not match the ministry’s information pages, at least for a short time.

Immediate aid is intended to bridge bottlenecks, but not to compensate for loss of sales

According to the court, the state cannot reclaim the aid used to compensate for bottlenecks. However, it is justified to finally determine the emergency aid to which the recipients are ultimately entitled in the form of new final decisions to be issued and thus to reclaim the overpaid amounts on this new basis. All recipients could have been confident that they would not have to repay funds that were legitimately used to alleviate financial emergencies or to bridge liquidity bottlenecks. “But objective recipients of the approval notices also had to insist that the emergency aid could only be used in its entirety to compensate for the economic bottlenecks caused directly by the corona pandemic, that appropriate use of funds had to be proven and documented in individual reviews, and that funds that were not required for the purpose had to be determined and repaid afterwards were,” according to the OVG.

During the hearing, one of the plaintiff entrepreneurs had repeatedly pointed out his loss of sales during the pandemic. According to the court, however, there is and was no evidence in the emergency aid procedure that the money was intended to compensate for lost sales. It is – and the court emphasized this several times – solely about alleviating the financial hardship of a company or the self-employed in connection with the corona pandemic.

Around 2,500 lawsuits of a similar nature are now pending at the seven administrative courts in the state of North Rhine-Westphalia. The path now shown by the OVG is necessary, said the presiding judge, because the state was unable to work with the decisions of the administrative courts, which, among other things, came out too differently.

Economics Minister Mona Neubaur (Bündnis 90/Grüne) announced on Friday evening: “The judgments will contribute to legal certainty and clarity for the procedures in the NRW emergency aid 2020.” It is of great importance to everyone involved that fundamental legal issues relating to emergency aid in North Rhine-Westphalia have been clarified for the first time. “Next, we will carefully evaluate the detailed reasons for the judgment announced by the Senate and examine the effects,” said the minister.

dpa/acr/LTO editors