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What are the effects of Covid-19 and the measures recently taken by the federal government on litigation proceedings?

Date: 
Wednesday, 8 April 2020

Overview

Questions and answers:

Will the civil courts remain in operation?

As of 16 March 2020, a regulation amending the rules of procedure for courts of first and second instance came into force. This regulation provides for a restriction of court services limited to the strict minimum. In the implementation decree, the Federal Ministry of Justice clarified that the courts will remain in operation to the extent necessary. Oral hearings should only be held if absolutely necessary to maintain the administration of justice.

In the recently passed 2nd Covid-19 Act, it was added that, in urgent cases, court hearings can also be held using technical means of communication, in particular by way of video conferences or, in exceptional cases, also via telephone conferences. This legal provision was necessary as the direct taking of evidence is an essential principle of the Austrian Code of Civil Procedure. Therefore, whenever quick court decisions are necessary, i.e. especially in family law proceedings or decisions on preliminary injunctions, "tele-court hearings" can be held.

The digitalisation of our court system is well advanced. Court rulings using electronic legal communication (elektronischer Rechtsverkehr) will, therefore, remain possible. Thus, attorneys will also still be able to file, for example, actions and applications for enforcement. Decisions on these applications should also remain possible. The 4th Covid-19 Act, which entered into force on 5 April 2020, clarified that - contrary to the initial provision in the Federal Act on Accompanying Measures for Covid-19 in the Judiciary (Bundesgesetz betreffend Begleitmaßnahmen zu Covid-19 in der Justiz) – also physical judicial service of documents shall be carried out. This applies, for example, to actions including the order to file an answer to the statement of claims and conditional payment orders.

What are the effects of the Corona Acts on procedural deadlines (prozessuale Fristen)?

The 2nd Covid-19 Act orders a legal interruption (Unterbrechung) of procedural deadlines in civil cases (civil litigation, non-litigious proceedings, matters concerning the land and commercial register and enforcement proceedings). The initial inclusion of deadlines in insolvency proceedings was repealed by the 4th Covid-19 Act. The reason was that insolvency proceedings should continue to be processed quickly and without undue delays.

The interruption concerns all "procedural deadlines" (verfahrensrechtliche Fristen), i.e. all statutory deadlines (Notfristen) and other deadlines set by law or judges. By virtue of an express legal provision, the interruption does not concern performance deadlines (Leistungsfristen) (e.g. a payment deadline set in a judgment). Enforceable decisions and judgments must therefore still be complied with.

It is currently planned that procedural deadlines will be interrupted from Monday, 23 March 2020, until 30 April 2020 and will restart to run on 1 May 2020. The 4th Covid-19 Act clarified that 1 May 2020 is considered the day of the event triggering the commencement of the time limit (Tag des fristauslösenden Ereignisses). This deadline may be extended by order of the Federal Minister of Justice. In exceptional cases, the court may order that a particular deadline shall not be interrupted. In such a scenario, the court must immediately determine a new appropriate deadline, whereby it should take into account the deadlines set by law.

The interruption of deadlines does not alter the fact that proceedings remain pending. It is, therefore, still possible to file submissions. Also the service of documents is still possible.

What are the effects of the Corona Acts on substantive deadlines (materiellrechtliche Fristen)?

For substantive deadlines, the Act does not order an interruption, but a suspension (Hemmung). Therefore, the period from Monday, 23 March 2020, to 30 April 2020 is not to be included in the period within which an action or application must be filed or a declaration must be made. If necessary, the Federal Minister of Justice may also extend this period.

This suspension of deadlines concerns, for example, limitation periods, the deadline for an action for disturbance of possession (Besitzstörungsklage), appeals to the court against a decision of the social insurance agency (Sozialversicherungsträger), appeals to the conciliation body (Schlichtungsstelle) under Section 40 of the Act on Tenancy Law (Mietrechtsgesetz), but also, for example, appeals against termination in labour law disputes.

Are there any changes regarding the law on the service of documents (Zustellrecht)? What are the effects of a service of documents in the absence of recipient?

The 2nd Covid-19 Act provides for some facilitations of service. During the designated period of interruption, the delivery agent (Zustellorgan) may leave court documents at the delivery point (for example, by dropping them in the mailbox) - instead of physically serving them or depositing them. Service shall be deemed to have been effected at that moment. This provision serves to avoid direct contact between the delivery agent and the recipient. The recipient must be informed of such a delivery in writing (e.g. by affixing a notice to the front door) or orally (via intercom or telephone).

As a result, documents may not be collected due to long-term business interruptions and, therefore, deadlines or hearings may be missed. Hence, even in the event of remote work or temporary closure of the company, it is advisable to check incoming mail regularly. If this is impossible or not wanted, one should place a forwarding order (Nachsendeauftrag) or notify the Austrian Post of the business' absence (Ortsabwesenheit).

Is it possible to rectify missed procedural acts?

If a party has missed a hearing or a deadline which has been extended by the 2nd Covid-19 Act, under certain circumstances, the court may allow this procedural act to be rectified via so-called "restitutio in integrum" (Wiedereinsetzung in den vorigen Stand). The affected party must prove in its application that it was prevented from carrying out the procedural act in due time due to an unforeseen or unavoidable event. Sudden illness or travel impediments, but also a lack of knowledge regarding a delivered document without the party's fault will probably be sufficient.

Does Covid-19 lead to an interruption of civil proceedings?

It is possible that individual courts have to cease their activities completely and cannot even maintain the ordered limited operation. The Federal Minister of Justice would announce such discontinuation on "www.justiz.gv.at". Proceedings pending before the respective court would then be deemed interrupted (irrespective of the Covid-19 Acts). In urgent cases, the parties may apply to the higher regional court (Oberlandesgericht) (in certain exceptions to the Supreme Court) to have the case transferred to another court.

Moreover, it is possible that a party is prevented from participating in the proceedings due to quarantine or curfew. In this case, the court may - upon application - order an interruption of the proceedings until cessation of the obstacle. It is required that - due to the prevention of taking part in the proceedings - the party is at risk of facing procedural disadvantages. It must be examined in each individual case whether or not this requirement is met. As a result of a granted interruption of the proceedings, no court hearings will take place and procedural deadlines will be interrupted.

Can already set hearings be rescheduled?

Most of the courts have already cancelled almost all of the upcoming hearings. Should the court have overlooked the cancellation or postponement of a hearing, the parties may file such request. A reference to the 2nd Covid-19 Act will be sufficient. Should a court nevertheless want to hold a hearing, the respective party would have to prove a significant obstacle in its application (e.g. quarantine, curfew, affiliation to a risk group, unreasonably long travel time by public transportation).

Your contact persons:

Florian Kremslehner
Head of the Civil Litigation Practice Group
T +43-1-533 4795-18
florian.kremslehner@dorda.at

 

Alexander Karl
Expert for Civil Litigation
T +43-1-533 4795-18
alexander.karl@dorda.at

 



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