The amount and importance of discretionary government transfers (state subsidies) in the Finnish economy has increased significantly during the corona pandemic. At the same time, suspicions of abuse related to the use of state subsidies have also increased.
AASA-LAW has special expertise in issues related to discretionary government transfers or state aid law. We have provided legal service to state aid recipients and also to state aid authorities (e.g The Housing Finance and Development Centre of Finland [ARA] and the Ministry of Defence).
According to subsections 1 and 2 of Section 13 of the Act on Discretionary Government Transfers (State Aid Act), state aid may only be used for the purpose specified in the state aid decision. The recipient of the state aid must comply with the conditions and restrictions adopted in the state aid decision in the aided project or activity. In addition, the state aid recipient must provide the state aid authority with correct and sufficient information in order to monitor compliance with the conditions of the state aid decision (Section 14 of the State Aid Act).
Conditions for claw back of discretionary Government transfers
Pursuant to Section 21 subsection 1 of the State Aid Act, State aid authorities must issue a decision ordering the discontinuation of the payment of a discretionary Government transfer and the claw back of a transfer already paid if the recipient of the transfer has: 1) neglected to repay a transfer or part thereof which under section 20 must be repaid; 2) used the transfer for a purpose essentially The state aid authority’s recovery obligation in the cases referred to in section 21, subsection 1, point 3 of the State Aid Act exists only if the false or misleading information given on behalf of the aid recipient was capable of substantially affecting the receipt, amount or conditions of the state aid. different from that for which it was granted; 3) provided the State Aid authority with false or misleading information in a matter that was critical to the granting of the transfer, its amount or terms, or concealed such information; or 4) otherwise essentially violated provisions concerning the use of transfers or terms included in the transfer decision in a manner comparable to paragraphs 1–3.
Correspondingly, the obligation for claw back according to Section 21, subsection 1, paragraph 4 of the State Grants Act arises only if the recipient of the aid has essentially violated the regulations regarding the use of the grant or the conditions of the grant decision. It has been held in the legal literature that such a material breach should occur due to mistake or misconduct.
According to the preliminaries of the State Aid Act, essential violations must be considered to be violations due to which the state aid would not have been granted in the amount of the state aid decision. Correspondingly, using a state aid for a purpose for which it was not granted at all or for which it would have been granted significantly less is an essential violation as meant by the section.
In the jurisprudence of the Supreme Administrative Court of Finland, financial management contrary to the terms of the aid decision has led to the claw back of aid, when the aid decision has contained an express condition on the separation of the project’s accounting from the aid recipient’s other accounting (ECLI:FI:KHO:2016:T3375).
In the decision 2016:T3375 of the Supreme Administrative Court, it was also stated that the accounting information related to the aid recipient’s project is generally an important part of the aid recipient’s reporting obligation and the state aid authority’s supervisory task. The court emphasized that the project’s accounting must be organized so that the project’s expenses and income can be verified in a reliable and transparent manner, and the connection between the expenses and the implementation of the project can be easily clarified.
False information referred to in section 21, subsection 1, paragraph 3 of the State Aid Act, refers to information that does not correspond to the facts at the time the information was provided. Misleading information, on the other hand, refers to information and the way it is presented, due to which the state aid authority does not get an essentially correct and sufficient picture of the fulfillment of the criteria for granting the aid and the purpose of use of the aid.
False and misleading information referred to in the State Aid Act has been assessed, for example, in Supreme Administrative Court’s decision 2017:T3644 (ECLI:FI:KHO:2017:T3644). The case involved a situation where, based on the inspection it carried out, the state aid grantor considered that the division of the company’s salary costs between the financed project and the company’s business was unclear. Since the grant recipient had billed salary costs to the project, for which it did not demonstrate the monitoring and allocation of working time in accordance with the terms of the funding decision, the court considered that the aid recipient had provided the state aid grantor with information which has not, in essential parts, obtained a correct and sufficient picture of the fulfillment of the criteria for granting the state aid and which therefore were misleading as referred to in section 21, subsection 1, paragraph 3 of the State Aid Act.
In the same case, the beneficiary was also considered to be responsible for the correctness of the information they provided, despite the fact that the error regarding it was caused by the human error of an external actor.
In legal practice, it has been considered that even simple accounting errors can mean that the conditions for mandatory claw back are at hand. In Supreme Administrative Court’s decision 2016:T337516, the state aid had been used for the purpose for which they were granted, and the claw back was based solely on the incorrect and inconsistent way of carrying out the accounting. The court considered that the deficiencies in the project’s accounting were essential, and stated that, taking into account the recipient’s obligations regarding the project’s accounting and the explicit condition of the aid decision on the separation of projects accounting from other accounting, the authority should have, based on Section 21, subsection 1, paragraphs 3 and 4 of the State Aid Act, ordered the claw back of the granted state aid due to accounting deficiencies.
In addition to mandatory claw back, Section 22 of the State Aid Act provides for discretionary claw back. According to the subsection, paragraph 1, State aid authorities may issue a decision ordering the discontinuation of the payment of a discretionary Government transfer and the claw back of a transfer or part thereof already paid, if: 1) the transfer recipient has violated section 12(4), or section 13 or 14;
In the situations stipulated in the provision, the recipient of the state aid has acted contrary to the obligations regarding the use of the state aid or violated the obligations of the recipient of the state aid to provide correct and sufficient information.
Discretionary claw back refers to the procedure of the recipient, which is not always essential to the extent that it would systematically result in the recovery of the aid. The authority’s assessment of expediency is therefore linked in particular to the assessment of the essentiality of the situation.
For example, in the decision of the Supreme Administrative Court 2018:T1620 (ECLI:FI:KHO:2018:T1260), the court has held that because the recipient of the aid has neglected to comply with the conditions of the state subsidy decision regarding working time records in the subsidized project, the authority could order the claw back of aid based on Section 22, subsection 1, paragraph 1 of the State Subsidy Act.
Examination of the matter and responsibilities of the parties
Claw back is a matter initiated by the state aid authority, which is treated as a normal administrative matter. Since the granting of state aid and other related decisions are administrative matters, the provisions of the Administrative Procedure Act apply to recovery matters as a general law, such as the provisions of Chapter 6 on the examining of the case and the provisions of Chapter 7 on the deciding a matter, in addition to the State Aid Act.
In its claw back decisions, the state aid authority must also take into account the legal principles of administration according to Section 6 of the Administrative Procedure Act, which set substantial quality requirements for administrative activities. When initiating claw back of the state aid, the authorities must take into account the principle of proportionality in particular, as it is a significant restrictive or negative decision of the authorities. In addition, the principle of protection of legitimate expectations is also actualized in situations where the assistance granted by the authority is clawed back. Along with the principle of proportionality and the principle of protection of legitimate expectations, other legal principles according to § 6 of the Administrative Act naturally also apply in claw back situations.
Based on the official principle of administrative law, the main responsibility for investigating the matter rests with the authorities. In accordance with Section 31, subsection 1 of the Administration Procedure Act, [a]n authority shall ensure that a matter is sufficiently and appropriately examined, by acquiring the information and evidence necessary for a decision to be made on the matter.
Regardless of the fact that the authority has the primary obligation to find out the information required for its binding decision, the State Aid Act has set extensive obligations for the recipient of the aid to provide correct and sufficient information.
Sections 12 and 14 of the State Aid Act apply in particular to the aid recipient’s obligation to clarify. According to Section 12, subsection 1 of the State Aid Act, the aid can be paid after an acceptable statement has been presented to the state aid authority about the use of the aid. In addition, according to section 12, subsection 4, the recipient of a state aid must provide the state aid authority with correct and sufficient information in order to pay the aid. According to the rationale of the law, the recipient of the state aid is obliged to ensure that the information regarding the conditions for payment is provided with sufficient scope and correct content, so that the state aid authority can get a correct picture of the fulfillment of the conditions for payment of the grant based solely on the information provided by the recipient of the grant.
Section 14 of the State Aid Act, on the other hand, stipulates that the recipient of a state aid must provide the state aid authority with correct and sufficient information in order to monitor compliance with the conditions of the aid decision. In addition, the recipient of the state grant must immediately notify the state aid authority of a change affecting the realization of the purpose of use of the aid or any other change affecting the use of the state aid. According to the rationale of the law, correct and sufficient information in this context means information that is factually correct and that gives a correct and sufficient picture of the use of the aid and compliance with the terms of the grant decision and related financial matters. The section obliges the recipient of the aid to give a possibly negative statement from his own point of view.
In addition to the responsibilities of the grant recipient, the state aid authority has, according to Section 15 of the State Aid Act, an explicit duty as a state aid authority to take care of the appropriate and sufficient supervision of the state aid by obtaining data on the use and monitoring of the state aid and other information, as well as by conducting inspections if necessary. According to the rationale of the law, the appropriateness of supervision means that with the help of supervision, reasonable certainty must be obtained that the grant is used in the right way and ensure correct and sufficient information about the use of the grant and its effectiveness.
The goal of the State Aid Authority’s supervision is to state with sufficient certainty, e.g. whether the conditions for granting, using and paying the state aid have existed and whether the aid has been used in a manner required by good financial management.
However, taking into account the provisions of the State Aid Act, the recipient of the grant has an active notification obligation in the investigation of the matter. In legal practice, it has been considered that it is the responsibility of the recipient of the aid to ensure the appropriate use of the state aid, as well as to correct an unclear or misleading statement about the use of the state grant.
In accordance with the principle of proportionality, the starting point for the claw back of the paid state aid is that the authority limits the recovery to the amount corresponding to the error or abuse. However, the measure may be directed at the entire granted state aid, if the aid would not have been granted at all under the circumstances of the situation or if, as a result of an error, the state aid cannot be used in essential parts in accordance with the state aid decision.
According to legal guidance from legal practice, recovery should be limited to only those costs for which no reliable explanation of their connection to the supported project has been presented.
Pursuant to Section 26 of the State Aid Act, the state aid authority may also decide that a part of the amount to be recovered, the interest calculated on it, or late payment interest shall not be recovered will not be clawed back if repayment in full is unreasonable in the light of the financial standing and circumstances of the recipient of the discretionary Government transfer or the type of the property procured using the transfer or the procedure on which repayment or claw back is based or because of a change in circumstances.
In the situations referred to in the section, the state aid authority has been considered to have wide discretion regarding the reasonableness of recovery (e.g. ECLI:FI:KHO:2020:T2214).
However, legal practice has taken a particularly negative view of rationalizing the claw back of state aids, if it is a state aid that has been received unjustifiably. In the decision-making practice of the Supreme Administrative Court, it has been considered that the provisions of Section 20 of the State Aid Act regarding the return of the grant, Section 21 of the recovery and the set-off of the state aid of Section 30 form a regulation on the obligation to return an unjustified benefit. According to the Supreme Administrative Court’s policy, this obligation does not depend on the reason why the state aid has been received excessively or unjustifiably, whether the reason is the actions of the state aid authority or the recipient of the state aid.
For example, in the decision of Supreme Administrative Court 2009:T45 (ECLI:FI:KHO:2009:T45), the court has not considered the full recovery of state subsidies to be unreasonable, even in those situations when the received aid was based on erroneous aid decisions of the authority. Since the claw back was based on the unjustified benefit received and its return, the original aid decisions did not form a protection of trust for the aid recipient towards the decisions. However, due to an official error, the amount to be recovered was moderated in terms of the interest to be paid on the amount.
Furthermore, in the decision of Supreme Administrative Court 2013:T128 (ECLI:FI:KHO:2013:T128) the Supreme Administrative Court considered e.g. the fact that the monitoring of the use of state aid had not been organized in an appropriate manner in accordance with the State Aid Act as relevant in terms of reasonable recovery. Reasons in favor of rationalization were also considered to be open to interpretation of the state aid application and decision, as well as the fact that the authority had given the recipient of the aid conflicting advice about the state aid decision. In its decision, the Supreme Court held that errors and weaknesses in the state aid authority’s procedures do not constitute grounds for not recovering state aid if the aid has not been used in accordance with the state aid conditions or the State Aid Act.
On the basis of the cases of the Supreme Administrative Court, it can be stated that the recipient of the state aid themself has a strict reporting and review obligation in matters related to the use of the aid.
Suspension of the payment of the state aid
According to Section 19 of the State Aid Act, the state aid authority may, by its decision, order the suspension of the payment of the state aid if there is a reasonable reason to suspect that the recipient of the state aid does not proceed in the manner referred to in section 12, subsection 4, or in sections 13 or 14, or the grounds on which the state aid has been granted, have substantially changed.
According to the detailed rationale of the State Aid Act, the suspension of payment is intended as a temporary security measure, which allows the payment of the granted state aid to be suspended while the matter is investigated in more detail. A decision must be made to suspend the payment. After the investigation, the state aid authority must make a decision on continuing the payment or stopping the payment of the state aid and recovering it.
Suspension of payment requires a justified suspicion of a procedure contrary to the behavioral obligations set in the State Aid Act. Based on the law, the payment cannot be suspended for any doubt, but the state aid authority must have sufficient and reasonably acceptable grounds for its action. However, the legal section does not require that the state aid authority have sufficient proof of an illegal procedure, but a reasonable and generally acceptable suspicion justifies the state aid authority to start suspending the payment.
A decision to suspend the payment of the state subsidy is always followed by a decision to stop the payment of the subsidy or to continue the payment based on preliminary works. The decision to stop paying the grant ends the payment of the grant for an activity that is currently underway.