The Dutch Act on the recovery of state aid has entered into force!
Public authorities and aid recipients beware: the Dutch Act on the recovery of state aid has entered into force!
On 1 July 2018, the Dutch Act on the recovery of state aid entered into force. The Act provides a specific statutory basis and clear rules for the recovery of state aid by public authorities in the Netherlands. Hereinafter we outline the situations in which the Act applies (and does not apply) and summarise the way of recovery.
When does the Act apply?
The Act only relates to state aid:
- granted by an administrative body;
- other than by way of an agreement (e.g. via subsidy or unilateral decision); and
- of which the European Commission has decided that it constitutes unlawful aid; or
- of which the administrative body itself concludes (subsequently) that it was not notified to the European Commission contrary to the state aid rules.
If unlawful state aid has been granted by way of an agreement, the Act does not apply. In such case, recovery must take place in accordance with the provisions of civil law, and in particular the rules on undue payment:
- this can be done by presenting the case to the civil court and claim the amount that was unduly paid;
- this can also be done via a settlement, as a result of which the agreement is amended and no longer reflects unlawful state aid and any amount unduly paid is recovered.
The Act does however provide that, also when aid is granted by way of an agreement, interest must be paid.
Further, the Act does not apply to aid that has been granted by non-administrative bodies, such as public companies. Having said this, state aid will generally be granted by and administrative body.
The way of recovery
In case of recovery, the administrative body adopts a payment decision:
- if the aid recipient does not pay the amount due, the administrative body may use a warrant to recover this amount. This means that the administrative body does not need to go to court in case of non-payment.
- If there is a Commission decision ordering the recovery of aid, there is an obligation to recover the amount of the aid plus interest.
- If there is no Commission decision, but the administrative body itself concludes subsequently that aid was awarded and needs to be recovered, there also is an obligation to recover both the aid and interest.
We like to keep you informed about developments in the field of state aid. If you have any questions, please contact Marc Custers, Anneclaire Lombert or Maarten van Laar.