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04 May 2020
Parliament has introduced special temporary legal measures to prevent and control the spread of COVID-19 in Austria.(1) These measures encompass various fields of law (eg, civil, commercial, financial, criminal, epidemic, health, public and labour law) and were adopted gradually, widely entering into force on 16 March 2020, 22 March 2020 and 5 April 2020 (the First to Fifth COVID-19 Acts). Most of the COVID-19 Acts will expire on 31 December 2020. They provide a legal basis for ordinances taken or still to be taken ex officio by the competent ministers to provide further special measures against the COVID-19 pandemic and its economic consequences.
The special temporary legal regime also concerns procedural law to be applied in administrative and appeal procedures, including under the Environmental Law. In the context of local and personal quarantine measures – and the associated absences of officials and affected persons – a federal law (COVID-19-VwBG) was passed setting out special procedural regulations for administrative authorities, administrative courts, the Supreme Administrative Court and the Constitutional Court. The Second(2) and Fourth(3) COVID-19 Acts are pertinent for COVID-19-VwBG.
Despite the ongoing COVID-19 pandemic, these special procedural provisions aim to ensure that the procedures which are legally required are in place, and that the strict lockdown and social distancing restrictions do not disadvantage parties.
This article discusses the implications for the legal procedures set out in the Environmental Law resulting from the new temporary COVID-19-VwBG.
Outside the material scope of COVID-19-VwBG's application, the competent legislatures at both the federal and provincial level are still authorised to create corresponding procedural regulations. These regulations are similar to COVID-19-VwBG but may also determine special regulations deviating from it, such as for regional planning (eg, development concepts, zoning plans and development plans) and private sector administration.(4)
The key elements of the special temporary provisions are as follows:
Nearly all of these special temporary provisions are valid for proceedings before administrative authorities, administrative courts, the Supreme Administrative Court and the Constitutional Court. However, proceedings before the latter two courts are not to be interrupted.
As regards proceedings pending before the administrative authorities to which the Administrative Procedure Acts (ie, the AVG, the VStG or the VVG) apply (at least partially or subsidiarily), all procedural time limits are to be interrupted if:
The interruption of time limits also applies to proceedings pending before the administrative courts, the Supreme Administrative Court and the Constitutional Court.(10)
The interruption of a time limit means that it will start again after the relevant period. COVID-19-VwBG defines an 'interruption period' as starting when the law came into force (ie, 22 March 2020) until 30 April 2020. Hence, procedural time limits are interrupted and began to run anew from 1 May 2020 (if the time limit is counted in weeks, months or years) or 2 May 2020 (if the time limit is counted in days). The interruption occurs ex lege and thus without an individual's intervention.
However, the interruption of time limits applies only to procedural time limits and does not apply to:
A time limit's classification as a procedural or substantive may not be straightforward. In case of doubt, the Supreme Administrative Court has adopted a procedural time limit in its established case law.
A time limit will not be interrupted if the authority issues such a statement after careful consideration of all of the circumstances in the respective proceedings. In this case, the authority must simultaneously set a new, reasonable (shorter) time limit, which will begin with the notification of the decision on the time limit (which can, in principle, be appealed).
Example: EIA improvement order
If the Environmental Impact Assessment (EIA) authority issues an improvement order to a project applicant to complete their EIA permit application in due time, since the EIA authority must subsidiarily apply the General Administrative Procedure Act (AVG) according to Section 42 of the Environmental Impact Assessment Act 2000 (UVP-G) and this is a procedural time limit, the official improvement period is ex lege interrupted.
If the improvement period (eg, Section 5(2) of the UVP-G) was set at one month and began on 23 March 2020, it would normally end on 23 April 2020. However, the event triggering the time limit falls within the statutory interruption period. Therefore, due to the statutory interruption of the time limit according to Section 1(1) of COVID-19-VwBG, the monthly period starts anew from 1 May 2020 and ends on 1 June 2020.
The suspension of time limits for certain reasons (in this instance, the COVID-19 measures) will be lifted once those reasons cease to exist. The suspension period (ie, 22 March to 30 April 2020) is not included in the calculation of a time limit. However, time limits are to be extended from 1 May 2020 by the period affected by the suspension of the time limit (up to a maximum of 40 days).
According to the Fourth COVID-19 Act, it is not only the time limits for applications initiating proceedings that are suspended, but also those for the decision and limitation periods (concerning the limitation of prosecution, criminal liability and enforcement).
For applications initiating proceedings which are subject to a time limit, it may be difficult to determine whether a time limit for such an application or a procedural time limit is set out. This particularly applies to appeal periods. Whether a procedural period (interruption of time limit, Section 1 of the COVID-19-VwBG) or a period for filing a request to initiate proceedings (suspension of time limit, Section 2 of the COVID-19-VwBG) is fixed in the specific provision is important in this respect. Depending on the classification of a time limit, this can result in different expiry dates. In addition, it is questionable, in light of the principle of equality, that the wording of Section 2 of the COVID-19-VwBG includes only time limits and not end dates. The requirement of their equal treatment will again most likely have to be dealt with in future case law.
In addition to the suspension of time limits, official decision periods are regulated to compensate for the fact that the COVID-19 crisis is hindering the authorities' ability to deal with administrative matters quickly and easily. The time limits for decisions have been extended as follows:
Despite the temporary statutory right to a special decision period, the authorities must issue decisions without unnecessary delay.
Example: applications for water use rights renewals
Applications to renew a water use permit that have already been exercised (eg, for a waterpower plant) must be submitted no less than six months and no more than five years before the permit expires. If the application is filed in due time, the applicant (the holder of the water use permit) can renew the permit, provided that public interests are not infringed and the water use complies with the state of the art (Section 21(3) of the Austrian Water Act).
An application for the permit's renewal must be submitted in the normal way by 31 May 2020; otherwise, the water right will expire. Re-lending under water law involves the granting of a new right and an application initiating proceedings, which is subject to a time limit. Such an application is subject to the statutory suspension of time limits. The period was suspended on 22 March 2020 until the end of 30 April 2020. Therefore, the application time limit must be extended by the full period of the time limit's suspension (40 days) and does not end until 10 July 2020.
Procedural actions involving the authorities, which inevitably entail personal contact between the parties involved, are to be reduced to those which are necessary to maintain orderly administration. This applies to contacting the authorities orally and to oral hearings and interrogations.
Negotiations already scheduled are not suspended ex lege. Necessary oral hearings and questioning are to be conducted using suitable technical means of communication (ie, video or telephone conference), even in the absence of all other parties involved.
Provided that the competent authority ceases its activity (de facto and thus de iure), the procedures will be interrupted. Upon request of a party to the proceedings, a transfer of competence (with the exception of proceedings before the Supreme Administrative Court and the Constitutional Court) to another competent authority, if possible on the merits, may be approved by means of an administrative decision. It is not specified when a cessation of activity can be assumed for a specific authority (presumably the shutdown of the entire official operation or an absolute emergency operation) or to what extent the substantive decision is transferred in the case of urgent procedural acts that cannot be postponed.
It is unclear whether appeals can be properly lodged with the competent body during the relevant interruption or suspension period, even though the appeal period does not run during that period. Given that COVID-19-VwBG's purpose is to avoid legal subjects being disadvantaged, such an appeal could be admissible.
The 12th COVID-19 Act will supplement and clarify provisions on procedures in the presence (eg, minimum distance, principle obligation to wear a mask) and absence (official assessment in compliance with procedural rights, such as a fair trial) of persons according to § 3 COVID-19-VwBG.(11) For example, the authorities will have to accept oral submissions because of imminent danger or a requester's mental restriction.
The federal government has justified its exceptional measures by referring to the current exceptional circumstances brought about by COVID-19. The Environmental Law is among the laws affected by this and has largely been subject to objectively justified temporary provisions.
The lack of clarity of provisions can most likely be attributed to the immense time pressure on the legislature. However, such clarity ought to be met by the Sixth to 18th COVID-19 Acts, which will be announced in the Federal Law Gazette on 5 May 2020 at the earliest.
In the interest of legal certainty and clarity, the competent legislature for special procedural provisions outside the scope of COVID-19-VwBG should strive to comply with spirit of COVID-19-VwBG.
For more information on this topic please contact Andreas Lopatka at Schoenherr by telephone (+43 1 53437 50215) or email (email@example.com). The Schoenherr website can be accessed at www.schoenherr.eu.
(1) For further details please see "Austria: Questions, answers and practical examples on the COVID-19 special procedural regulations for administrative authorities, VwG, VwGH and VfGH (including update to the 4th COVID-19 Act)" (in German).
(4) Please see Styrian State Law Gazette 2020/35 and the commentary in the circulars of the Office of the Styrian Provincial Government of 8 April 2020 (GZ ABT03VD-56493/2020-49 and GZ ABT13-10.00-1/2004-1131). For further special procedural provisions at the provincial level please see Tyrolian State Law Gazette 2020/51 and Upper Austrian State Law Gazette 2020/35. For the Vorarlberg Nature Conservation Act, see Vorarlberg State Law Gazette 2020/19.
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