Considerations for state aid recipients in Austria

Considerations for aid recipients

Is there a legal right for businesses to obtain state aid or is the granting of aid completely within the authorities’ discretion?

There is no general legal right under Austrian law to receive state aid. However, if an undertaking fulfils the conditions set out in the state aid scheme in question, the authority may not decide freely but is bound by the principles of non-discrimination and equal treatment. Therefore, the position of the undertaking is relatively strong in this context and may lead to an entitlement to aid, even though it is not explicitly stipulated in the scheme.

What are the main criteria the national authorities will consider before making an award?

Austrian law does not set out criteria that national authorities need to consider before making an award of state aid. Generally, it depends on the purpose of the particular state aid scheme and whether the funding guidelines stipulate specific criteria. As in many jurisdictions, the authorities will often take innovation, employment and environmental issues into account.

What are the main strategic considerations and best practices for successful applications for aid?

Generally, there is public interest in supporting businesses, especially SMEs, innovations, employment and the environment. Therefore, Austria launched databases where the vast majority of available subsidies are listed. Its objective is to provide all state aid available for businesses on one single platform. This database is not fully implemented yet.

If the potential recipient applies for aid based on an existing scheme, then the most important aspect is to show that the relevant criteria are met. The authority is bound by the principles of equal treatment and non-discrimination; thus if the applicant can demonstrate that the criteria are met, the application is likely to succeed.

If the application is made for ad hoc aid, the application has a considerably poorer prognosis because the authority may argue that the award would raise EU law issues.

How may unsuccessful applicants challenge national authorities’ refusal to grant aid?

If the refusal to grant aid is an administrative decision, often one may be entitled to launch an appeal within the administrative system. Questions regarding the competence of the administrative court or authority depend on the body that denied the aid.

However, it is also possible that aid is awarded in private-sector administration. In this case, the authority does not issue a notice but renders its decision with an informal letter, which may be challenged before civil courts.

To what extent is the aid recipient involved in the EU investigation and notification process?

There is no publicly available information on this issue, but generally there is no formal right for the aid recipient to be involved in the EU notification process. The EU State Aid Law department is responsible for all types of notifications. It notifies both ad hoc aid and schemes via the EC’s State Aid Notifications Interactive system. From a practical perspective, the EU State Aid Law department may be willing to interact with the applicant in ad hoc aid cases when the applicant holds the expertise necessary to succeed in the notification proceedings before the EC.