The commercial law firm Orth Kluth successfully represented an emergency aid recipient before the Münster Higher Administrative Court on behalf of the Interessengemeinschaft-NRW Soforthilfe. The state of North Rhine-Westphalia has thus lost the appeals against the first-instance judgments of the Düsseldorf Administrative Court in the Corona Emergency Aid 2020 case. According to the legal opinion of the Higher Administrative Court of Münster, the re-registration procedure carried out by the state was also unlawful.

According to the oral reasons for the judgment, the feedback procedure violates both the requirements set out in the grant notice itself and data protection regulations. The OVG Münster expressly disagreed with the state’s argument that the notifications were provisional with regard to the purpose of the grant. The OVG Münster thus clarified in the plaintiffs’ favor that the state is not entitled to subsequently intervene in the grant notice to correct it.

The state of North Rhine-Westphalia therefore only has the option of carrying out a proof of use procedure before the tax offices with the applicable deadlines, as provided for in the notice and thus successfully demanded by the plaintiffs and also by IG-Soforthilfe NRW.

Although it would not have been legally necessary, the OVG Münster commented in detail at the hearing on what needs to be taken into account in the context of this where-used list procedure.

Surprisingly, the OVG Münster took a significantly different position than the state, IG-NRW Soforthilfe and the courts of first instance. Loss of sales alone should not be sufficient to be allowed to keep the emergency aid funds. On the other hand, the use was not limited to pure liquidity bottlenecks. The possible use can probably best be described as “liquidity bottleneck plus”. In addition, an overall view of the approval period, as previously envisaged by the state, is inadmissible. Instead, a much more fragmented approach is likely to be taken. Based on the content of the oral hearing, our cautious assessment is that this approach could lead to some recipients of emergency aid being allowed to keep even more funds than if they were assessed purely on the basis of lost sales. Conversely, however, it will also be the case that other recipients of emergency aid will be worse off than if they were assessed on the basis of lost sales. However, the OVG Münster has spoken out quite clearly in favor of the view represented by the plaintiffs that living expenses can be deducted for those entrepreneurs who received their notice before April 1, 2020, 13:30; IG-NRW Soforthilfe in particular has long fought for this. However, the exact details will only be available in the written reasons for the ruling.

The Orth Kluth team led by Düsseldorf partner Dr. Michael Sitsen and senior associate Dr. Kerstin Bogusch represented a plaintiff operating a cosmetics studio in the appeal proceedings on behalf of IG-NRW Soforthilfe founded by Reiner Hermann. The state of North Rhine-Westphalia was advised by the law firms Wolter Hoppenberg and Redeker.

Advisors Orth Kluth: Dr. Kerstin Bogusch, Dr. Michael Sitsen (both lead), Mandy Beck, Marieke Schwarz (all public law and Düsseldorf), Felix Meurer (data protection law, Berlin).