Subsidy fraud – Corona and criminal liability
Not only about the Corona virus itself, but also about criminal proceedings because of subsidy fraud and other offences in connection with Corona are reported almost daily.
Have you heard that in times of Corona you can easily claim financial help through the so-called Corona emergency aid and short-time allowance? Many of your acquaintances have already filed such applications for their businesses and now you are thinking that you too could take advantage of the opportunity? Particularly as times only quickly fill out an online application form. It is precisely this speed that can prove to be a pitfall.
Why it is worthwhile before an application for Corona emergency aid or also an application for short-time allowance to clarify all facts exactly and to call in a specialized lawyer, you read here. This much in advance: There is a risk that you will commit a criminal offense, namely at least subsidy fraud, as soon as you apply for subsidy. Precisely because federal financial assistance has been "knitted with a hot needle," there are significant uncertainties for applicants.
In addition, we address punitive risks under the Infection Protection Act (IfSG). Why, for example, you may not employ staff who have tested positive for Corona. Or what penalties you face if you open your business despite the ban, read the second part of this blog post.
Read this article for the latest news? You are looking for a lawyer for criminal law because you are under investigation? If you are charged with a violation of the Infection Protection Act or subsidy fraud? Have you received a summons or a hearing sheet as a defendant?? Do not hesitate and call me immediately! Together with you, I will develop a defense strategy in order to end the criminal proceedings as quickly as possible and with a positive outcome for you.
Corona emergency aid and short-time allowance
The federal and state governments have recognized that many companies are in a difficult financial situation due to the Corona pandemic and have created financial aid programs. These financial aids include loans, the short-time work allowance, but also the so-called Corona emergency aid.
This is intended to cushion financial bottlenecks and lost sales for solo self-employed workers and small businesses. These so-called Corona emergency subsidies are intended to prevent freelancers, small businesses and solo self-employed persons in particular from being placed in a situation that threatens their existence as a result of the effects of COVID-19.
The application for short-time allowance has also been simplified.
Prerequisite of the application for short-time work
An application for short-time allowance may only be filed, even in times of Corona, if there is a significant loss of work. If there is actually no work stoppage, one makes oneself punishable already with the application because of subsidy fraud (to the subsidy fraud more below).
For example, a work stoppage does not exist if you can keep your workers employed by changing their job duties (for example, cleaning up the warehouse).
Also, the loss of work must not be based on reasons that are customary in the industry, usual in the company or seasonal. Rather, the cause must be an unavoidable and only temporary event (in this case, the Corona pandemic).
Precondition of the Corona emergency aid from the federal government
Federal emergency aid requires that the companies and/or solo self-employed persons (the applicants) have fallen into an economic situation that threatens their existence due to the Corona crisis.
Note: At this point, only the emergency aid provided by the federal government is discussed, not the individual federal states. The federal states have decided on their own emergency aid and have different, sometimes divergent, requirements here. This requires an examination in the individual case. But here, too, it is generally the case that significant and often even existence-threatening losses in sales can be expected due to the Corona crisis. Mere loss of profit is usually not sufficient for this purpose.
What is such an existence-threatening economic situation??
Such a situation exists if the ongoing income is not expected to be sufficient to cover the liabilities (such as rent and loans) in the next three months. Federal emergency aid is not intended for private living expenses, such as rent for one's own apartment or health insurance contributions.
The foreseeability of the situation threatening the existence of the company is particularly problematic here. Although we all cannot see into the future, the applicant is required to make a prognosis decision at the time of application. This means that you must be able to state whether liabilities can no longer be covered at the time of application or whether and why it can be assumed that this will occur in the next few weeks (up to three months).
Application for Corona emergency aid
In order to be able to apply for emergency aid, online application forms have been set up. Promises of fast, uncomplicated and unbureaucratic assistance. After submitting an application, you should have the emergency aid money in your account within a few days.
This uncomplicated starting situation is tempting at first glance. However, a quick and uncomplicated application does not mean that a detailed examination will not be carried out afterwards.
What happens if false information is provided in the relevant applications and payouts are obtained as a result? Criminal proceedings (for subsidy fraud) will be the consequence.
Subsidy fraud, false affidavit, and other crimes in Corona Crisis
If you make false statements in a subsidy application, proceedings can very quickly be instituted against you for subsidy fraud under Section 264 (1) no. 1 StGB, false affidavit according to § 156 StGB and also other offences can be initiated.
Subsidy fraud according to § 264 StGB
Under Section 264 of the German Criminal Code, anyone who makes advantageous, incorrect or incomplete statements in the subsidy application process (including applications for Corona emergency aid and short-time working allowances) is liable to prosecution. If you claim that your company is in a financial emergency, although this is not true, you are committing subsidy fraud. Also, falsely claiming that the Corona Crisis resulted in a significant loss of work will make you liable to prosecution for fraud.
In addition to deliberate misrepresentation, even reckless conduct is punishable. Ignorance does not protect in this case thus before punishment! Carelessness is already a reckless act. For example, anyone who does not give any or sufficient thought to the application requirements or accepts information from an unreliable employee without verification.
Please note: Even if the Corona emergency aid or the short-time allowance is not paid out, i.e. the desired result is not achieved, you may still be liable to prosecution!
Penalty range for subsidy fraud – you can expect substantial prison sentences
If convicted of intentional subsidy fraud, you face at least a fine, but possibly also a prison sentence of up to five years.
For example, if one has submitted falsified receipts with the application, it is even a particularly serious case of subsidy fraud. Pursuant to Section 264, Paragraph 2, Sentence 2, no. 1 StGB threatens a prison sentence of up to ten years.
In case of a conviction for fraud, however, not only fines or imprisonment are threatened. In fact, the amounts of money obtained (through the Corona emergency aid or short-time allowance) will also be skimmed off. This means that the money obtained must be repaid.
Also, a conviction can lead to an entry in the certificate of good conduct. Especially for managing directors this is problematic.
If you are concerned that you have wrongly filed an application for Corona emergency assistance or short-time allowance, you should seek advice as soon as possible. Before the subsidy is paid out, there is, for example, the possibility to avoid punishment by so-called "active remorse", § 264 paragraph 6 StGB (German penal code).
False affirmation under oath, § 156 StGB
In addition to the criminal liability for subsidy fraud, there is also the risk of a conviction for false affirmation in lieu of an oath according to § 156 StGB (German penal code). In Berlin, at the end of the online application for Corona emergency aid, applicants are required to affirm in lieu of an oath that they have provided the information to the best of their knowledge and belief and that it is true and accurate.
Offences according to the Infection Protection Act, §§ 74 and 75 IfSG
In the Corona crisis, male and female entrepreneurs should also be aware of the following offences of the infection protection law. The Infection Protection Act (IfSG) aims to prevent the further spread of certain diseases. For this it reaches in §§ 74, 75 IfSG to the dashing sword of the criminal law. As a penalty, in addition to a fine, a prison sentence of up to five years is possible.
According to these, for example, anyone who commits a criminal offense
- violates an employment ban for a person infected with Corona, §§ 75 paragraph 1 no. 2, 28 paragraph 1 sentence 1 and 2, 31 in conjunction with 32 sentence 1 IfSG and the Corona Ordinance
- Hosts a public or non-public event or operates a swimming pool in violation of the Corona Ordinance, §§ 75(1) no. 1, 28 paragraph 1 sentence 2 in conjunction with § 32 sentence 1 and § 1 paragraph 1 Corona Ordinance.