OVG Münster: NRW loses appeal for Corona emergency aid

The Higher Administrative Court today ruled in three test cases on Corona aid for small businesses. The country wanted money back from many – but has now lost the appeal.

Hundreds of small business owners and the self-employed have this Friday Muenster looked: The Higher Administrative Court negotiated the Corona emergency aid. “This is an important judgment that many people are waiting for nationwide,” said Reiner Hermann, spokesman for the immediate aid interest group in advance. Now the judgment is there .

However, the judgment only has an impact on the 1,600 procedures in the first instance – if the state does not withdraw and recalculate the decisions there anyway. The approximately 225,000 recipients who have not complained have to repay at least part of the funding.

And that’s what the OVG was about: In the spring of 2020, the state government launched the largest aid program in state history. Within a few days, around 4.5 billion euros were transferred to over 430,000 small business owners and the self-employed. “As quickly and easily as possible” was the goal at the time. Most received 9,000 euros each, some also 15,000 or 25,000 euros.

Land often ended up demanding money back

NRW was the only federal state to have paid out the funding as a lump sum and not first checked the expected need. That happened later, after the fact. The district governments asked those affected to communicate their actual needs. As a result, so-called final decisions were sent – final statements, often with refunds.

The country based the final settlement on the actual economic minus – the so-called liquidity bottleneck. If an entrepreneur had less income because of the contact restrictions, but also saved expenses, this was added up.

First instance found the plaintiffs right

The result: tens of thousands of them should pay several thousand euros back to the state treasury. On the other hand, many have complained – currently around 1,600 lawsuits are still pending, according to the ministry. The Higher Administrative Court is now deciding in three test cases.

In the first instance, the administrative court Dusseldorf upheld the plaintiffs. The reasoning: When the country paid out the money in spring 2020, it had already set the conditions. The funding was made dependent on the loss of sales, not on the liquidity bottleneck.

OVG judgment probably relevant nationwide

The country only referred to the liquidity bottleneck, i.e. the actual loss, later when the repayment was made. According to the administrative court, it was no longer possible to simply change the funding conditions. According to the Düsseldorf judges, the final invoices are therefore illegal and so are the claims for reimbursement.

Although the judgment is only groundbreaking for the cases in North Rhine-Westphalia, it should also be an important pointer for the entire federal territory. In other federal states, such as Baden-Württemberg, there are also waves of lawsuits.

Anyone who has not complained should have to pay in any case

Shortly before the OVG hearing, a press release from the state government caused great disillusionment. According to a cabinet decision made on Tuesday this week, the country no longer wants to touch the final bills, against which no lawsuits have been filed.

This means that around 225,000 people affected should repay at least part of the funding. And it doesn’t matter whether the OVG finds the calculation basis illegal on Friday or not. For those affected, this means that they will probably actually have to pay back the money. Your final decisions are now final.

But that is not unfair hardship, according to the ministry. “After the completion of the feedback procedure with the final decision, every applicant would have had the opportunity to file a complaint against the decision of the district government and have it reviewed by the administrative courts,” said Economics Minister Mona Neubaur (Greens).

The announcement caused resentment among those affected

According to the interest group, some small business owners and self-employed people have reacted to this news with anger and annoyance. For a responsible industry association, the Federal Association of Liberal Professions, this is a fatal signal.

According to the association, many self-employed people felt unfairly treated during the pandemic. This is reinforced “by the sometimes brisk repayment practice of the authorities without a sense of proportion,” according to CEO Peter Klotzki.

We will also report on this topic on March 17th, 2023 in the radio news, including on WDR5.