Covid-Hilfen – lawyer: Exclusion of companies unlawful
Posted On March 18, 2021
Companies that have lost major completed financial criminal proceedings in the past five years cannot get corona aid. But this is unconstitutional, says an expert report commissioned by Gerald Zmuegg, owner of the Viennese consulting firm “Finanzombudsmann”. 40,000 companies are affected by the exclusion – even companies that have had a different owner in the meantime.
“Thousands of companies are left with nothing, due to clearly unconstitutional unequal treatment and double punishment,” said Zmuegg to the APA. In the interest of his 35 affected customers he will now speak to the Ministry of Finance and the Chamber of Commerce (WKÖ). The companies missed aid payments amounting to 16 million euros, and 700 jobs are threatened.
The government must correct the mistake. Zmuegg advises affected companies to get in touch and take action, as claims expire after three years.
If no viable solution can be found, “there is the possibility of a complaint to the Constitutional Court (VfGH) and the assertion of claims against the republic in civil law”, so the “Finance Ombudsman”. The appeal to the European Court of Human Rights (ECHR) is then obvious.
According to the 22-page report by a Viennese law firm, which is available to the APA, state aid is subject to constitutional requirements such as the principle of equality and the principle of objectivity. The Covid-19 aid would have a clear funding purpose, namely to support companies that suffer economic losses as a result of the official corona measures.
Double punishment for financial proceedings that have already been canceled is excessive and clearly contradicts Article 7 of the European Convention on Human Rights (ECHR). “It is undeniable that the complete withdrawal or the non-granting of the Covid-19-related subsidies is a massive economic disadvantage that (at least de facto) has a punishing quality,” said the lawyer in his expertise. “This is especially true if the sanction is justified with the failure to conduct itself as an act.”
It is constitutionally questionable to link the aid to the “good tax behavior” of the companies. An explicit legal authorization for this is not recognizable. As a result, the exemptions provided for in the ordinances of the Ministry of Finance are “in their entirety arbitrary and violate the constitutionally proven principle of equality.”
In response to an APA request, the Ministry of Finance said: “We have been helping as quickly as possible and as accommodatingly as necessary since the beginning of the crisis. Minor financial offenses are deliberately not a reason for exclusion from funding.”
According to the ministry, only companies with major financial offenses are excluded. The current legal situation is as follows: “If the applicant company or its executive bodies were imposed on the applicant company or its executive bodies in the last five years prior to filing the application, legally binding financial penalties or corresponding association fines due to intent, this leads to exclusion from the right to apply.” This does not apply “to mere financial offenses or to cases in which a financial penalty or association fine of up to 10,000 euros has been imposed.”