Guideline on processing late applications by COFAG under the law on state aid adopted – further payment of COVID-19 subsidies possible
During the COVID-19 pandemic, the BMF (Austrian Ministry of Finance) has paid out several aids in the form of COVID-19 subsidies pursuant to EU state aid law via the COVID-19 Finanzierungsagentur des Bundes GmbH (COFAG). In national implementation the granted application periods deviated from EU regulations resulting in initial applications submitted after 30 June 2022 not complying with EU state aid law. This especially concerns the revenue shortfall bonus III and the compensation for losses III. Therefore, COFAG did not further process such applications for the time being.
In August 2023, the Austrian Ministry of Finance was able to reach an agreement with the European Commission on handling this violation of EU state aid law. On 1 December 2023 the guideline on processing late applications by COFAG (“late application guideline”) was published. The guideline ensures processing late applications in accordance with EU state aid law as well as reclassification of subsidies having been granted based on late applications.
Application process
Based on the regulations for de-minimis state aid or damage compensation pursuant to the late application guideline, applicants may submit either (i) an application for reclassification for a revenue shortfall bonus III or a compensation for losses III already paid out, or (ii) a supplementary application for a revenue shortfall bonus III or compensation for losses III not yet paid out. Thus, only state aids which have already been applied for under the rules of the revenue shortfall bonus III or the compensation for losses III and comply with the respective eligibility criteria are granted under the late application guideline.
In case the applicant is part of a company group, it has to be checked whether the granted total state aids exceed the underlying EU State Aid Temporary Framework pursuant to section 3.1 (EUR 2.3 million in total) or section 3.12 (EUR 12 million in total). No supplementary application or application for reclassification within the meaning of the late application guideline may be submitted if the above-mentioned limits are exceeded.
The applicants themselves may submit supplementary applications or applications for reclassification based on the regulations for de-minimis state aid pursuant to the late application guideline. On the contrary, supplementary applications or applications for reclassification relating to a damage compensation have to be submitted by a tax advisor, auditor or accountant in the name and on behalf of the applicant. Additionally, a confirmation in form of an expert opinion by a tax advisor, auditor or accountant is required as well.
Applications may be submitted until 1 April 2024.
De-minimis state aid
The amount of the de-minimis state aid is capped at the amount of the underlying application for the revenue shortfall bonus III or the compensation for losses III and must not exceed the de-minimis limit determined for the applicant.
Damage compensation
Regarding damage compensation, the applicant has to determine the “damage” on the level of the individual company. Basically, the damage results from the loss of the selected period under review compared to 95% of the result of the comparison period and has to be calculated according to the guideline on compensation for losses III.
A period between 16 March 2020 and 31 March 2022 in which companies were subject to a lockdown measure can be selected as period under review. The corresponding period in 2019 has to be selected as compensation period.
The amount of the damage compensation corresponds to the relevant damage capped at the amount applied for according to the guideline on compensation for losses III or the guideline on the revenue shortfall bonus III.
Authors: Daniela Stastny / Stefan Ilic
