This article shall guide you through the current legal situation.
Be assured: court practice continues - with certain restrictions
It is indispensable that the conduct of justice must be upheld; however, with certain restrictions:
As a reaction to the coronavirus crisis, the Ministry of Justice has issued the Decree on dealing with the current corona pandemic ("Corona Decree") followed by the implementation of an Ordinance by which the Rules of Procedure for courts of I. and II. Instance were amended ("Corona Ordinance") and the second law on COVID-19.
Pursuant to the newly implemented rules, court administration shall be limited to the utmost necessary. Only those court`s members – including judges – are called to work at courthouses whose presence is absolutely necessary for the courts` functioning.
Likewise, courts limit their accessibility to the public; namely, only urgent matters shall be handled in person upon appointment.
How can parties exercise their rights?
However, the restrictions on the courts` administration must not keep parties from exercising their procedural rights. Parties may inter alia
- access court files either in person upon appointment;
- submit written applications or other documents in person or through postal service; and
- address concerns or issues to the courts in person upon appointment (only in urgent matters) or by phone.
In any case, parties may perform their rights through lawyers being electronically connected to courts and having access to electronic court files.
Do oral hearings still take place?
As a rule, Austrian courts require the attendance of parties or, at the very least, the lawyers representing them at oral court hearings. However, due to the coronavirus crisis in civil matters, oral hearings shall be held only if it is absolutely necessary for upholding justice. Whether an oral hearing shall be held has to be decided by the competent judge for each case individually. Judges are also required to assess whether already scheduled oral hearings shall be postponed.
Are deadlines affected?
Pursuant to the law on COVID-19 judicial deadlines shall be interrupted until 30 April 2020. This means that time shall start running afresh as of 1 May 2020. However, the competent judge can rule individually that a specific deadline shall not be covered by this rule. In such a case, the judge has to set a new reasonable deadline instead.
Further, any time limit for initiating court proceedings shall be suspended until 30 April 2020. This means that the time period between 22 March 2020 and 30 April 2020 shall not be counted when calculating the end of the time limit.
However, the above explicitly applies only to judicial deadlines. Any other deadlines shall not be affected.
Can documents be served on companies even when shut down?
The postal service shall not be affected by the measures implemented by the Corona Decree and the Corona Ordinance. This means that the court will continue to serve court documents as usual.
Pursuant to the Federal Act on the Service of Official Documents (Zustellgesetz, "Service of Documents Act") court documents can effectively been served
- on the parties or a representative duly authorised to accept delivery;
- on a substitute present at the place of delivery;
- by leaving court documents at the place of delivery;
- by depositing court documents at the delivery services` branch office or at the local municipality office.
However, the service of documents can only be effective provided that the postman has reason to assume that the addressee or representative is normally present at the place of delivery. From our experience, postmen generally assume this to be the case. Consequently, there is a high risk that court documents will be served on companies even when shut down.
If a court document was served by deposit, the service becomes effective as of the first date the court document can be collected. However, a company`s shut down can affect the effectiveness of the service depending on if and when a representative or authorised substitute is present at the company`s address:
- If the notice of deposit is detected within the period of collection, the company can simply collect the deposited court document. The service becomes effective as of the first date following the day of "return to the companies` address"; i.e. when a representative or any other authorised person returns to the companies` address.
- If the notice of deposit is detected only after the period of collection has lapsed, the service does not become effective. However, please note that due to lack of information the court will proceed as if the service has been served properly. It is up to the company to claim the ineffectiveness of service; this within due time, namely within 14 days after obtaining knowledge of the existence of the court document.
Are enforcement proceedings affected?
In general, the same rules for civil procedures shall also apply to enforcement proceedings. Simply put, enforcement proceedings shall be executed as usual; however, certain restrictions shall apply:
- In order to avoid infections, bailiffs shall refrain from actions which require particularly close physical contact to parties.
- Bank transfers shall be given preference over cash.
Further, the debtor can request to postpone enforcement proceedings even without the imposition of security, if
- it has been affected by the coronavirus personally;
- it, thereby, suffered economic difficulties which have led to the initiation of enforcement proceedings;
- the pending enforcement would destroy its economic existence;
- there is no risk of serious damage to the creditor, i.e. his claim becomes fully or partially irrecoverable.
If enforcement proceedings are postponed, creditors may request continuation of proceedings as soon as the said conditions are no longer met; the latest after one year.
Until when shall the newly implemented measures apply?
The measures implemented by the Corona Decree and the Corona Ordinance shall be valid until 13 April 2020; for deadlines respectively until 30 April 2020. However, if the coronavirus crisis does not draw to an end, we expect these measures to be prolonged or even stricter measures to be ordered.
This article is part of our coronavirus-focused legal updates – visit our coronavirus infocorner to get more info!