Procedural and substantive interruption and suspension of time limits

Austria

On Monday, 16th March 2020, the Federal Act on provisional measures to prevent the dissemination of COVID-19 (COVID-19-Measures Act) came into effect in Austria.

The Federal Ministry of Justice subsequently issued a decree ordering Austrian authorities and courts to reduce their party traffic to a minimum. As a result, courts immediately adjourned all non-urgent proceedings or postponed them indefinitely. Only civil proceedings to review the legality of custodial measures and criminal proceedings, which involve detention and accommodation measures, continue to be conducted as closed sessions.

The Federal Ministry of Justice also instructed the courts to discontinue the enforcement of judgments, unless the enforcement is urgent and irreparable damage is imminent. The assessment of urgency is at the discretion of the competent Higher Regional Courts.

By way of the 2nd COVID-19 Act these measures have now been extended and a so-called moratorium on time limits for administrative and civil proceedings has been adopted. This law came into effect on 22nd March 2020 and in summary provides for the following:

Civil and administrative proceedings, including proceedings in front of administrative courts (including the Highest Administrative Court and Constitutional Court)

  • All procedural (judicial and statutory) time limits in administrative (incl. tax) and civil proceedings, as well as proceedings in front of the Highest Administrative Court and the Constitutional Court, are interrupted as of 22nd March 2020 until 30th April 2020. These deadlines will start to run anew on Friday 1st May 2020.

    Examples:

    • On Monday, 16.03.2020, an action for payment of a purchase price due was served on the defendant via mail. The four-week time limit to submit the statement of the defense begins to run on this day. On 22.03.2020 the moratorium on time limits comes into force. The four-week period for filing the statement of defense begins to run anew on 1.5.2020 and thus the statement of defense must be submitted to the competent court no later than Friday, 29.05.2020, 12 pm (midnight).
    • On Thursday, 16.04.2020, a penal decision for illegal employment of foreigners is served. The four-week period for lodging an appeal with the Administrative Court will not begin to run until 01.05.2020. The limit to submit an appeal ends on Friday, 29.05.2020.
  • The interruption of time limits does not apply within the scope of the Epidemic Diseases Act!
  • Courts and administrative authorities may lay down exceptions by way of (court) orders (non-appealable in civil proceedings) and establish different (i.e. shorter) interruptions of time limits. Courts and administrative authorities may only make use of this exemption if the continuation of the proceedings is urgently necessary in order to avert danger to life and limb, security and freedom or to prevent substantial and irreparable damage to a party to the proceedings; for example, proceedings on interim measures.
  • Substantive law time limits (including deadlines in administrative proceedings within which applications must be filed) are suspended until 30th April 2020, in particular statutes of limitations, the period for filing an action for trespass, the period to contest decisions of municipalities acting as a conciliation bodies in tenancy cases or the period for filing a claim for wrongful dismissal. In contrast to the procedural time limits described above, these time limits do not begin to run completely anew on 1st May 2020, but do not continue to run or do not begin to run for the duration of the moratorium on time limits (suspension of continuation of the time limit).

    Examples:

    • As the spouse wanted to enter the joint marital home on Monday, 16.03.2020, he/she noticed that his/her partner had single-handedly exchanged the locks to the joint marital home. Therefore, the spouse was no longer able to enter its marital home, which is a violation of property. The spouse violated in his/her rights must file a claim for trespass in court within 30 days of becoming aware of the exchange of locks. The time moratorium comes into force on 22.03.2020. The continuation of the time limit is thus suspended: Up until the first day of the suspension coming into effect, five days of the period for bringing an action for trespass have already expired. The remaining 25 days of the time limit continue to run as of the 01.05.2020. Thus, the action for trespass must be received by the competent court on 25.05.2020 at the latest.
    • A company has accepted a delivery of defective goods on 22.03.2018 and immediately sent a notice of defects to its contractual partner. The remedies of repair or replacement are not feasible, and the company therefore wishes to rescind the purchase contract and reclaim the purchase price. The (statutory) time limit to assert warranty claims for movables is 2 years from the date of acceptance of delivery. The time moratorium comes into force on 22.03.2020 and the continuation of the time limit is thereby suspended: The claim for refund of the purchase price would have to be received by the competent court on Friday, 01.05.2020 the latest. As this is a public holiday, the period actually ends on the next working day, i.e. on 04.05.2020.

      Alternative: The delivery was accepted on 29.03.2018. The time moratorium comes into force on 22.03.2020 and the continuation of the time limit is thereby suspended: The action to rescind the purchase contract and for refund of the purchase price must be received by the competent court on Friday, 08.05.2020.

      Attention: Substantive law time limits, which do not concern submissions to courts (but e.g. notifications towards contractual partners), (e.g. obligations to give notice of defects, the presumption of the defectiveness of goods, etc.) remain unaffected by the 2nd COVID-19 Act, as far as can currently be assessed.

    • The application for an extension of a residence permit valid until 22.04.2020 can be put forward until 01.06.2020.

      Attention
      : The moratorium on time limits does not (explicitly) stipulate that temporary entitlements are thereby extended; e.g. the validity of the residence permit is not (explicitly) extended by the 2nd COVID-19 Act.

Insolvency proceedings

  • The period for filing an insolvency petition is extended to 120 days from the occurrence of insolvency or overindebtedness (instead of the usual 60 days). What remains unchanged: This period is intended to enable the debtor to carry out restructuring efforts in or out of court if there is a chance of restructuring or at least reasonable belief to examine such a chance. In this context, the receipt of grants from the COVID-19 crisis management fund and hardship fund (which can be expected to vary for each company and sector) may also impact the assessment of insolvency. This period is still a maximum period and filing for insolvency can therefore be deemed as belated even before expiry of the 120 days time limit.
  • The following applies during ongoing restructuring proceedings: A qualified reminder of a creditor to a debtor in default with the fulfilment of the restructuring plan after 22.03.2020 will not trigger any legal effects until 30.04.2020 (in particular this will not lead to the revival of the full claims). The extent to which such a qualified reminder will have legal effects after the 30.04.2020 has not been clarified by the legislator.

Criminal proceedings

  • For criminal proceedings, the 2nd COVID-19 Act does not provide for a general moratorium on time limits until 30th April 2020. It does, however, authorize the Federal Ministry of Justice to issue decrees ordering the interruption of specific statutory time limits whilst the measures to prevent the dissemination of COVID-19 are in effect. This means that the Federal Ministry of Justice can autonomously order the interruption of deadlines until a certain date by way of a decree. For instance the following time limits can be interrupted: time limits for filing appeals and other legal remedies (e.g. complaints against court decisions, appeals against violations of procedural rights by the public prosecutor's office, complaints of nullity and appeals against criminal convictions, etc.) or the maximum duration of investigation proceedings (currently three years). It is to be expected that the Federal Ministry of Justice will order an interruption of time limits until 30.04.2020.

A further extension of the interruption or suspension of time limits can be effected by decree of the Federal Ministry of Justice (for time limits in civil and criminal matters) or of the Federal Chancellor (for time limits in administrative matters; a shortening is also possible), should this be necessary to contain the COVID-19 pandemic.