What are the effects of COVID-19 and the measures recently taken by the federal government on litigation proceedings?
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 will come 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 only to the extent necessary. Oral hearings should only be held if absolutely required to maintain the administration of justice.
Does COVID-19 lead to an interruption of litigation proceedings?
Pending proceedings are interrupted by law only if a court ceases its activities completely. Therefore, as long as the ordered limited operation can be maintained and electronic legal communication (elektronischer Rechtsverkehr) is functioning, all pending proceedings will continue.
However, it is be 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?
Already set hearings can be rescheduled ex officio or upon application. Some courts in Austria have already cancelled or rescheduled hearings to a later date. If a court decides not to cancel or reschedule a hearing on its own initiative, the parties may request a postponement. To be successful, applicant must prove a significant obstacle to attend the hearing (e.g. quarantine, curfew, affiliation to a risk group, unreasonably long travel time by public transportion). Given the current situation, courts will likely be generous in this regard.
Can deadlines be extended?
Generally, both deadlines set by law and deadlines set by judges can be extended upon application of a party. According to the wording of the law, the court shall grant such request if a party is prevented from carrying out the time-limited procedural step in due time for inevitable or very significant reasons. Such reasons could be, for example, illness of the party or its legal representative, but also other impairments in communication between lawyer and client and a thereof resulting limited flow of information. We assume that courts will approve such requests generously given the current situation. However, attention should be paid to the fact that certain statutory deadlines (Notfristen) cannot be extended by virtue of an express legal provision (in particular the deadline for objections against payment orders and the deadlines for appeals). In these cases, only a timely filed and approved application for interruption of the proceedings would be helpful.
What are the effects of a service of documents in the absence of recipient?
If judicial (or other) documents cannot be served at the delivery point (e.g. due to a temporary interruption of business), the document will be deposited for collection with the competent post office, the municipal office or the issuing authority. Documents may be deposited if the delivery agent (Zustellorgan) assumes that the recipient is present at the delivery point on a regular basis. Time of delivery is deemed to be the day on which the document can first be collected. As a result, documents may not be collected due to long-term business interruptions and, therefore, deadlines 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, we recommend placing a forwarding order (Nachsendeauftrag) or notifying the Austrian Post of a business’ absence (Ortsabwesenheit).
Is it possible to rectify missed procedural acts?
If a party has missed a hearing or a deadline, 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 step 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.