COVID Aid: Repayment Looms

2. July 2026

The Austrian Supreme Court (OGH), in decision 1 Ob 23/26b of 28 April 2026, made a landmark finding: Austria’s COVID subsidy guidelines broadly exceeded the EU state-aid ceilings under the Temporary Framework — with the direct consequence that numerous companies now must repay significant multi-million-euro amounts to the federal government. Affected are all businesses that claimed multiple support programs cumulatively — fixed-cost subsidy, revenue replacement, and loss compensation — and thereby exceeded the EU per-company ceilings.

Real estate groups with multiple operating subsidiaries are particularly exposed: EU state-aid law does not look at the individual legal entity but at economically linked units, meaning aid should have been consolidated at group level — a requirement that was simply not correctly implemented in the Austrian funding guidelines, and one that most applicants neither knew nor could have known about.

The real grievance, however, lies elsewhere: the state made the error. The authorities issued the guidelines, reviewed the applications, approved them, and disbursed the payments — thereby creating a situation companies were entitled to rely on in good faith. Companies relied on these state directives — understandably, and with no reason to doubt the accuracy of the official guidance. The principle of legitimate reliance, a cornerstone of our legal system, should mean that there is no clawback on state assurances that were followed in good faith. Yet the OGH affirmed the repayment claim regardless, without visibly addressing the state’s substantial contributory fault — which, as a matter of legal policy, is more than unsatisfactory.