ruling of 23.01.2019 that legal facts do not constitute "events" within the meaning of Section 36 para. 2 no. 2 VwVfG and thus confirmed its decision of 31.07.2017. In the case of non-eligible expenditure, the grant notification must be partially revoked within one year.
What is at stake?
Grant notifications from the administration are regularly issued in conjunction with the state's - in this case Saxony's - General Auxiliary Provisions for Grants for Project Funding (ANBest-P). No. 2.1 of these stipulates that the grant is reduced if the eligible expenditure is reduced after it has been approved.
However, such a secondary condition is only applicable if it is compatible with the provisions of Section 36 para. 2 no. 2 VwVfG. According to this provision, the conditional issuance of an administrative act (in this case the grant notification) can only be made dependent on the uncertain occurrence of a future event. The court therefore had to decide whether the reduction in eligible expenditure was such an event.
How did the court decide?
The BVerwG first clarified that an event can only be an actual process that is perceptible to the senses and can be proven. This does not apply in particular to the perceptions of a party. In any case, an event is characterized by the fact that it can be affirmed without a legal assessment.
The decision as to whether eligible expenditure has been reduced is not such an event. It is not limited to determining the total costs incurred, but also requires a legal assessment of which of these costs are eligible for funding. Whether such an assessment is easy or difficult is irrelevant. In the decision of 31.07.2017, the court also stated that a legally binding decision also requires a legal assessment, meaning that this is not an event either.
As a result, this understanding means that the condition set out in no. 2.1 ANBest-P is not applicable, as an administrative act pursuant to Section 36 para. 2 no. 2 VwVfG can only be conditioned by an event, but not by a legal assessment. It follows from this that the effectiveness of a grant notification is initially independent of a reduction in the eligible expenditure.
What is the impact of this decision?
The ruling of the BVerwG means that the mere fact that an expenditure is not eligible for funding does not in itself lead to a reduction in the grant, but the grant notification must be partially revoked by the responsible authority. In doing so, the authority must adhere to the general procedural requirements, in particular the one-year deadline in Section 48 para. 4 VwVfG in conjunction with Section 49 para. 3 sentence 2. § Section 49 para. 3 sentence 2 VwVfG. This period begins to run at the latest when the person concerned is heard. An error by the authority regarding the applicability of No. 2.1 ANBest-P does not change this.
It should also be noted that the claim for reimbursement of the grant under No. 8.1 ANBest-P does not arise with the reduction of the eligible expenditure, but only with the revocation of the administrative act. Only then does the limitation period and the interest period pursuant to Section 49a para. 2 VwVfG begin to run.
Dr. Johannes Badenhop Leander Schmedemann