COVID-19 Phase 2 and environmental procedural law

Introduction
Scope of application
Key elements of Section 3 of COVID-19-VwBG
Official acts in physical presence of other persons
Remote official acts
Official acts in absence of parties
Remote oral hearing and maintenance of party standing
Comment


Introduction

Procedural simplifications under the COVID-19 Phase 2 aim to contribute to reducing the backlog of files on the one hand and protecting health on the other. To this end, all official acts – even oral hearings – can be conducted remotely for the first time in Austria, which seems to be in line with relevant European Court of Human Rights (ECtHR) case law. However, the new temporary COVID-19 special procedural law may trigger delays in administrative law procedures, including procedures under Austrian environmental laws.

According to the Administrative COVID-19 Accompanying Law (COVID-19-VwBG),(1) temporary special procedural law for administrative authority proceedings, administrative courts, the Supreme Administrative Court and the Constitutional Court has been standardised since 22 March 2020. Section 3 of the COVID-19-VwBG(2) adapts the requirements for official acts and public communication with authorities to reflect the restricted freedom of movement and contact. The 12th COVID-19 Act,(3) amending Section 3, entered into force on 15 May 2020.

Under the 12th COVID-19 Act, the competent administrative authorities are free to carry out official acts, including oral hearings, using suitable audiovisual equipment (abbreviated as 'remote official acts') until 31 December 2020. Hearings already scheduled have not been postponed ex lege. Rather, it is up to the competent administrative authority or court to take the necessary precautions (eg, rescheduling an oral hearing by means video conference).

This article examines how the revised version of Section 3 of the COVID-19-VwBG affects environmental law procedures (eg, water, environmental impact assessment, waste, construction and conservation).

Scope of application

For official acts issued between 22 March 2020 and 14 May 2020, the original version of Section 3 of the COVID-19-VwBG as amended by Federal Law Gazette (I 2020/16) was to be applied ('Section 3 of the previous COVID-19-VwBG'). In the so-called 'COVID-19-lockdown phase' or 'COVID-19 Phase 1', Section 3 of the previous COVID-19-VwBG provided for official acts to be held in person only as far as necessary to maintain orderly administration.(4)

Under the 12th COVID-19 Act (in force since 15 May 2020), Section 3 now contains provisions for oral hearings, questioning, judicial inspection and the taking of evidence and the like ('official acts'), as well as for oral communication between the authorities and parties and other persons ('oral communication'). In addition to the examples mentioned in Section 3, the non-exhaustive enumeration of official acts also includes official acts in large-scale proceedings such as the public debate of projects requiring permits under environmental laws.(5)

According to Section 6(1), Section 3 will in principle be applied in administrative court proceedings. Therefore, the legislation indicates that the amended Section 3 is not only valid for all pending official administrative authority proceedings to which the Administrative Procedure Acts (ie, the General Administrative Procedure Act (AVG), the Administrative Criminal Law and the Administrative Enforcement Act) are applied, but also for administrative court proceedings if the AVG is applied at least in part.(6) Second, Section 6(1) is a constitutional provision and refers to Sections 1 to 5 dynamically. If, in contrast, a static reference in Section 6(1) is (questionably) assumed, Section 3 of the previous COVID-19-VwBG would still have to apply to administrative court proceedings.

The Administrative Procedure Acts are generally to be applied by (environmental) authorities in their administrative(7) proceedings and administrative courts(8) in environmental legal protection proceedings (eg, procedures under the Environmental Impact Assessment Law, the Forest Act and the Water or Air Pollution Control Law). Environmental proceedings under provincial administrative rules and regulations also fall within the scope of Section 3 (eg, permit procedures under conservation law, regional planning or construction law). It follows that according to the current legal situation, the temporary procedural law under Section 3 must be applied in all relevant environmental law proceedings until 31 December 2020.

Key elements of Section 3 of COVID-19-VwBG

Under the 12th COVID-19 Act, the updated Section 3 determines:

• the rules of conduct to carry out official acts in the physical presence of other persons (eg, local judicial inspections). The administrative officer in charge of the official act must ensure that the participants in the official act comply with the rules of conduct applicable for entering the place of the official act (thus for entering public places). Before a violation of the rules of conduct can be punished (eg, administrative penalties or expulsion from proceedings), the person concerned must be reprimanded (Section 3(1)).
• a margin of appreciation for the competent administrative authority to carry out remote (audiovisual) official acts (eg by videoconference) and decide which persons should be physically present and who should participate via suitable audiovisual technology (Section 3(2)).
• the rights of persons without technical equipment to participate remotely in official acts (Sections 3(3) and (4)).
• the different rules for minutes of remote official acts. The signature of the officer in charge of the official act is sufficient (Section 3(5)).
• the principle to communicate with the authority in writing. In the case of written submissions, the authority will be authorised to set an adequate period within which a submission in due time will be deemed to have been filed correctly from the beginning. The authority must only communicate orally with the parties in the course of proceedings if:
  • it is absolutely necessary to maintain proper administration; and
  • with respect to the special circumstances of the case, it is impossible to do so in any way other than by means of oral communication.

Verbal submissions that make a written submission unreasonable are excluded from restricted oral communication in the case of imminent danger or other obstacles (eg, language barriers). Such submissions are to be accepted by the authority (Section 3(6)).

Official acts in physical presence of other persons

The competent administrative authority can decide whether and how an official act is performed in the physical presence of other persons. The authority decides whether remote official acts are carried out and which persons are physically present and which persons participate remotely via audiovisual technology.

As of 3 July 2020, pursuant to the recently(9) amended Section 3(1), the rules of conduct for entering the place of an official act apply according to the respectively applicable implementing regulation under the COVID-19 measures Act.(10) At present, the officer in charge of the official act is basically required to ensure that only the minimum distance of one metre is observed; there is no longer an obligation to wear a mask.(11)

Provided that the rules of conduct are observed, it is permissible for all participants, individual participants or no participants to be present at the office of the officer in charge of the official act. However, the authorities (or courts) are not completely free in their assessment, as Article 6 of the European Convention on Human Rights (ECHR) sets out several procedural guarantees, including the equality of arms, the right to be heard, immediacy, the right to trial within a reasonable time or orality. Above all, the ECHR is enshrined as federal constitutional law in Austria.(12)

To avoid procedural errors in administrative law proceedings, divided official acts in which some parties are present while others are connected remotely via audiovisual equipment should be scheduled and carried out with special caution.

Remote official acts

Constitutional requirements
Hitherto, remote questioning has been admissible as a means of taking direct evidence on considerations of efficiency (in particular procedural economy). Since 15 May 2020 other official acts, including oral hearings, can be conducted remotely until 31 December 2020. However, such COVID-19 health protection measures must comply with ECtHR case law, according to which the use of audiovisual technology is admissible in (administrative) criminal proceedings and complies with the principles of a fair trial as defined in Article 6 of the ECHR, which requires:

• a legitimate objective (eg, speeding up proceedings in specific cases, reducing the backlog of files held by the competent authority and maintaining public safety and health protection);(13)
• the comprehensibility of the procedure,(14) as the ECHR grants rights that are effective in practice;(15)
• (active/passive) visual and auditory contact with all participants (ie, each participant must see and hear the others and be seen and heard also);(16)
• no technical deficiencies – if they occur, they should be reported immediately in the procedure, since subsequent complaints can be irrelevant;(17) and
• protection of the right to an effective defence by confidential exchange with a legal representative.(18)

Under the abovementioned requirements, remote official acts are at the discretion of the deciding authority and do not require the parties' consent.

Subjective right to participate
According to Section 3(3), there is no compulsory right to a remote (audiovisual) official act, but there is a right for parties and other persons involved to participate in an appropriate manner to exercise their rights or contribute towards ascertaining the facts of the case. It is irrelevant whether this is accomplished in the context of physical or remote participation in an official act or "in any other appropriate manner" (eg, in the context of the written hearing of the parties). Only if a party is given no opportunity to exercise its rights or contribute will its subjective right to be heard have been violated.

Place of official acts
Pursuant to Section 3(2)(2), a remote oral hearing may be held at a place deemed most feasible according to the circumstances or at the office of the authority instead of a hearing onsite (this requirement usually exists for hearings in construction permitting procedures). Evidence and judicial inspections, which in principle would have to be carried out onsite in the course of an oral hearing, must be carried out before a remote oral hearing. Thus, parties can still comment on the result of the taking of evidence and the concentration effect of the oral hearing is maintained.

Official acts in absence of parties

Any authority planning to perform a remote (audiovisual) official act must request the parties and other persons involved to indicate whether equipment for audiovisual transmissions is available. The request to give notice of availability can be made in the summons or information (official announcement) of a remote official act.

If the parties or persons involved do not have the necessary technical equipment, the competent administrative authority may perform the official act in their absence. In this case, the authority must grant the absent party or persons an opportunity to exercise their rights or contribute towards ascertaining the facts of the case in any other appropriate manner. This should apply irrespective of whether the absent party or persons have previously met their obligation to disclose its technical possibilities.

Already the lack of technical requirements on the part of only one party leads to comprehensive subsequent steps to be taken after performing an official act in order to preserve the hearing of the parties. A party's claim that it has insufficient or non-existent technical equipment can thus lead to considerable procedural delays. The intended function of the administration and the acceleration of pending proceedings by means of remote (audiovisual) official acts can therefore be guaranteed only if it is ensured in advance that all parties and other persons involved have suitable technical equipment. At least in multiparty proceedings (eg, procedures under the water, environmental impact assessment, nature protection or waste laws), oral hearings should be held in the physical presence of all parties, if possible.

Remote oral hearing and maintenance of party standing

According to Section 42(1) of the AVG, parties lose their party status (preclusion) in principle, if an oral hearing has been duly announced and they have raised no objections by the end thereof. Section 3(4) of the COVID-19-VwBG provides for an extended period to present objections under strict requirements. Following this temporary procedural provision, the authority will continue to give persons involved the opportunity to raise objections after the end of the oral hearing if:

• it is provided by law that parties may raise objections at the latest during the oral hearing;(19)
• a remote (audiovisual) oral hearing is held;
• the parties have not yet raised objections in due time;
• they have stated, at the latest on the day before the remote oral hearing, that they do not have technical equipment for the transmission of words and images;
• they did not participate at all in the remote oral hearing; and
• they file an application to raise objections within three days of the date of the remote oral hearing.

In such circumstances, the authority must transmit the minutes of the remote oral hearing to the persons fulfilling these requirements, informing them that they are free to raise objections within a reasonable period to be determined at the same time. If such objections are not raised in time, the preclusion consequences of Section 42(1) of the AVG (exceptionally only after the expiry of the deadline set by the authority) apply and the defaulting persons will lose party standing.

The authority must refer to the consequences of preclusion in accordance with Section 3(4) sentence 4. However, according to the wording of this provision ('request'), the time of the official reference remains unclear. The time may be clarified only by the system in Section 3: from a pragmatic point of view, a reference in the request to disclose the technical possibilities as defined in Section 3(3) would be sufficient, while in practice, the reference should be included both in the request as defined in Section 3(3) and in the notice on the official special period for subsequent objections being transmitted together with the minutes of the hearing as defined in Section 3(4).

This special provision on preclusion highlights the difficulties of remote oral hearings: the statement by only one party that it lacks suitable technical equipment for the transmission of words and images is enough to render the remote oral hearing ineffective.

Comment

The updated Section 3 of the COVID-19-VwBG reveals the tension between procedural flexibility and acceleration on the one hand and the right to a fair trial on the other. Provided that remote oral hearings are used in accordance with the Constitution (especially Article 6 of the ECHR), Section 3 will be consistent with ECtHR case law.

In standard administrative procedures, this provision should be able to provide the desired acceleration of proceedings. However, in more complex environmental proceedings (eg, environmental impact assessments), Section 3 could turn out to be a gateway for procedural errors and delays. Therefore, in multiparty proceedings especially, oral hearings in the physical presence of all parties should be preferable to remote oral hearings, unless the provisions on large-scale proceedings apply.

For more information on this topic please contact Andreas Lopatka at Schoenherr by telephone (+43 1 53437 50215) or email (a.lopatka@schoenherr.eu). The Schoenherr website can be accessed at www.schoenherr.eu.

Endnotes

(1) Administrative COVID-19-Accompanying Law, Federal Law Gazette I 2020/16 as amended by Federal Law Gazette I 2020/42.

(2) Sections without legal title refer to the COVID-19-VwBG as amended by Federal Law Gazette I 2020/42.

(3) Federal Law Gazette I 2020/42.

(4) For further details please see "Implications of COVID-19 for legal procedures under Austrian Environmental Law".

(5) IA 2nd COVID-19 Act, 397/A 27. GP 32; Section 44a et seq. General Administrative Procedure Act (AVG).

(6) IA 12th COVID-19 Act, 437/A 27. GP 4 ("indirect scope of application"); IA 2nd COVID-19 Act, 397/A 27 GP 32.

(7) Article I, Article II EGVG; however, see for example Section 3(1)(4), Section 5 and Section 8(3, 5) of the Environmental Information Act: a notification by a body required to provide information, if this is a legal entity without official status, is not a pending administrative proceeding within the meaning of COVID-19-VwBG.

(8) Sections 17 and 38 of the Proceedings of Administrative Courts Act (VwGVG).

(9) Federal Law Gazette I 2020/59.

(10) Federal Law Gazette I 2020/12, as amended.

(11) Sections 1 and 11 of the COVID-19-loosening regulation, Federal Law Gazette II 2020/197, as amended.

(12) Federal Law Gazette 1964/59.

(13) ECtHR 5 October 2006, 45106/04, Marcello/Italy, 67, 70, 72; ECtHR 11 February 2003, 5398/03, Rip-pe/Germany.

(14) ECtHR 16 February 2016, 27236/05, Yevdokimov and others/Russia, 42 f.

(15) ECtHR 2 November 2010, 21272/03, Sakhnovskiy/Russia, 95.

(16) ECtHR 16 February 2016, 27236/05, Yevdokimov and others/Russia, 42 f; ECtHR 2 November 2010, 21272/03, Sakhnovskiy/Russia, 56, 95, 98.

(17) ECtHR 5 October 2006, 45106/04, Marcello/Italy, 74; ECtHR 23 February 1994, 16757/90, Stanford/UK, 24, 27.

(18) ECtHR 2 November 2010, 21272/03, Sakhnovskiy/Russia, 95 ff.

(19) Special provisions on preclusion in large-scale proceedings are not linked to the oral hearing and are therefore not affected by Section 3(4).