Subsidies

Subsidies

There are various subsidy schemes for entrepreneurs. For the government, this is a useful tool for achieving policy goals or stimulating activities. Entrepreneurs can receive reimbursement for specific business activities and associated costs in various areas. Typically, a subsidy process begins with an application, followed by a decision from the competent government authority. We assist organizations with, among other things:

• Assistance with grant applications
• European subsidy schemes (such as Horizon Europe & Eurostars)
• Dutch subsidy schemes WBSO, MIA, EIA, MIT
• Subsidy decisions
• Recoveries
• Objection and appeal (following, for example, a revocation decision or rejection of the application)

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of subsidies. Contact us to discuss the possibilities.

Subsidy law within administrative law: Title 4.2 of the General Administrative Law Act (Awb)

Subsidies fall under administrative law. The general rules are set out in Title 4.2 of the General Administrative Law Act (Articles 4:21 to 4:80 Awb). According to Article 4:21 Awb, a subsidy is an entitlement to financial resources provided by an administrative body for specific activities, other than as payment for delivered goods or services. Pursuant to Article 4:23 Awb, an administrative body may in principle only grant a subsidy if there is a statutory basis for doing so, for example in a subsidy regulation or a ministerial decree. An exception applies to incidental subsidies. Those who understand the legal structure of a regulation are in a stronger position during the application process as well as in the event of a potential dispute. Whether you are an international group or the baker on the corner: our lawyers and in-house counsel translate the regulations to your specific situation.

Granting of subsidies, subsidy ceiling and grounds for refusal

A subsidy process often involves two decisions: first, the granting of the subsidy (a conditional commitment) and later, the determination of the subsidy amount (the final amount). The subsidy ceiling plays a role in the granting process: pursuant to Article 4:25 of the General Administrative Law Act (Awb), an administrative body may refuse an application as soon as the available budget has been exhausted, even if the application meets the requirements on its merits. In addition, Article 4:35 of the Awb contains general grounds for refusal, for example, if there is good reason to assume that the activities will not take place or that the applicant has provided incorrect or incomplete information. We assess whether a refusal is justified and whether the administrative body has sufficiently substantiated its decision.

Subsidy determination and reduction

Following the completion of the subsidized activities, the subsidy determination takes place. Pursuant to Article 4:46 of the General Administrative Law Act (Awb), the administrative body in principle determines the subsidy in accordance with the grant, provided that the activities have been performed and the obligations have been met. If this is not (fully) the case, the subsidy may be determined at a lower amount. The Administrative Jurisdiction Division of the Council of State increasingly reviews such a decision against the principle of proportionality: a lower determination must be proportionate to the nature and severity of the shortcoming. We assess whether a (lower) determination stands and, if necessary, present a defense on the matter.

Withdrawal, amendment and recovery

A granted subsidy may be withdrawn or amended under certain circumstances. Prior to the final determination, Article 4:48 of the General Administrative Law Act (Awb) offers this possibility, for example if the activities have not been performed or obligations have not been met. After the final determination, withdrawal is only possible to a limited extent pursuant to Article 4:49 of the Awb, including in cases of incorrect data that have led to an excessive determination. Amounts paid unduly may be recovered pursuant to Article 4:57 of the Awb; in principle, this power lapses five years after the final determination. Recovery decisions can be far-reaching, especially involving large amounts. We assist both applicants and administrative bodies, ranging from international corporations to local entrepreneurs.

State aid and European frameworks

Subsidies to enterprises can qualify as state aid within the meaning of Article 107 of the Treaty on the Functioning of the European Union (TFEU). In principle, the government must recover unlawful state aid, with interest. Therefore, we assess whether a subsidy falls within an exemption, such as the General Block Exemption Regulation or the de minimis rule, and how European schemes like Horizon Europe and Eurostars relate to national instruments such as the WBSO, MIA, EIA, and MIT. This prevents an awarded subsidy from having to be repaid at a later stage.

Objection and appeal against subsidy decisions

The ordinary administrative legal procedure is available against a subsidy decision (a rejection, reduction, withdrawal, or recovery). You must lodge an objection with the administrative body within six weeks of the decision's notification (Articles 6:7 and 7:1 of the General Administrative Law Act). If the administrative body maintains its position, you may appeal to the District Court (Article 8:1 of the General Administrative Law Act) and subsequently to the Administrative Jurisdiction Division of the Council of State. Time limits are fatal: being late generally results in inadmissibility. Our lawyers and legal experts monitor the deadlines and handle the procedure from objection up to and including the appeal.

Frequently asked questions about subsidies

What is the difference between granting a subsidy and determining a subsidy?

The grant is a conditional commitment in advance; the determination establishes the final amount after the fact on the basis of Article 4:46 of the General Administrative Law Act (Awb). An unconditional entitlement to payment arises only upon the determination.

Can the government reclaim a subsidy that has already been paid out?

Yes. In the event of incorrect data or failure to comply with obligations, the subsidy may be withdrawn (Articles 4:48 and 4:49 of the General Administrative Law Act) and the amount reclaimed (Article 4:57 of the General Administrative Law Act), in principle up to five years after the determination.

Within what timeframe must I file an objection?

Within six weeks of the announcement of the decision (Article 6:7 of the General Administrative Law Act). This deadline is strict; late submission almost always leads to inadmissibility.

Who do you work for?

Across the full spectrum: from an international corporation to the baker on the corner. Our mixed teams of lawyers and in-house counsel switch between advice and litigation.

More about administrative law

Subsidies form one subject within our broader practice area of ​​Administrative Law. We also advise on and litigate enforcement decisions, public access to government information (Woo/Wob) , and environmental law. Contact us to discuss your subsidy issue.