Hermann Knott
Advogado
Alemanha

Christoph von Donat
Advogado
Alemanha

 

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Índice

Is state aid to start-ups and SMEs becoming illegal if the company is sold?
1. The basics of EU state aid law and national state aid law relevant for M&A transactions
2. Recovery of a subsidy as a result of the loss of SME status in the context of share deals
2.1. Recoverability of the grantv
2.1.1. Assessment under EU state aid law
2.1.1.1. Loss of SME status
2.1.1.2. Relevant point in time for the existence of the exemption requirements
2.1.1.3. Duration of the existence of the conditions for exemption
2.1.2. Distinction between EU state aid law and national law
2.1.3. Assessment including relevant provisions of German administrative law
2.1.3.1. Relevant point in time for the existence of SME status
2.1.3.2 No cessation of purpose due to project-related funding
2.1.3.3 Maximum: repayment of the SME surcharge
2.2. Procedural aspects
3. Recovery of a subsidy due to the loss of the SME status in the case of an acquisition of assets (Asset-Deal)
3.1. Law governing recovery in the case of an asset deal
3.2. Recovery from the acquirer
4. Consideration of EU funding law in the case of funding from the European Regional Development Fund
5. Practical recommendations in the context of a business acquisition – Provisions regarding State Aid in the Acquisition Agreement
5.1. Guarantee and indemnity
5.2. Statute of limitations; ten-year period for recovery under EU state aid law 148
5.3. Seller's duty to inform, participation of the seller in the proceedings concerning a possible recovery
6. Evaluation and outlook