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Last update: 24-05-2007
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Procedural time limits - Austria

 

TABLE OF CONTENTS

1. Various types of deadline applicable under the various procedural rules in civil matters 1.
2. List of the various days listed as non-working days under Regulation (EC, Euratom) No 1182/71 of 3 June 1971 2.
3. What are the applicable general rules on time limits for the various civil procedures? 3.
4. When an act or a formality has to be carried out within a given period, what is the starting point, ie, the initial moment from which the period runs (“terminus a quo”) of this act or this formality? 4.
4.a) Can the starting point at which the period runs be affected or modified by the method of transmission or service of documents (personal service by a bailiff or postal service)? 4.a)
5. From when does this period begin to run? 5.
5.a) When such a period is expressed in days, does the actual date of the act, of the event, the decision or the date of service and/or intimation which begins it count? 5.a)
5.b) When a time limit is expressed in days, does the indicated number of days include calendar days or only working days? 5.b)
5.c) When such a period is expressed in months or in years? 5.c)
5.d) When do such deadlines expire? 5.d)
6. If the period expires on a Saturday, Sunday or a public holiday or non-working day, is it extended until the first following working day? 6.
7. When the request is taken to a court which has its seat in the mainland territory of the Member State (in the case of Member States that comprise entities apart from the metropolis or have geographically separate entities), are deadlines extended for persons who live/reside in one of these entities or for those who live/reside abroad? If so, for how long? 7.
8. Conversely, when the request is taken to a court which has its seat in one of the entities which are geographically distinct from the mainland, are deadlines extended for persons who live/reside in one of these entities or for those who live/reside abroad? 8.
9. Are there time limits for appeals specific to certain civil matters? 9.
10. Can courts, in an emergency or for any other reason, shorten appearance deadlines or set a particular date for appearance? Conversely, can such periods be extended? 10.
11. When an act intended for a party in a place where he/she would benefit from an extension of a time limit is notified in a place where those who reside there do not benefit from such an extension, does this person lose the benefit of such a time limit? 11.
12. What are the sanctions in the event of failure to comply with deadlines? 12.
13. If the deadline expires, what remedies are available to defaulting parties? 13.

 

1. Various types of deadline applicable under the various procedural rules in civil matters

There are various kinds of deadline under Austrian law.

Firstly, a distinction is drawn between procedural and substantive deadlines. Procedural deadlines (deadlines for action) are deadlines by which a party to the legal action or a person associated with it in some other way can or must carry out a particular legal measure. Substantive deadlines are deadlines by which a particular event must have taken place if certain substantive consequences are to follow on from it under the legal system (e.g. the deadline for complaints in matters of possession under Section 454 of the Judicial Code [ZPO] or the deadlines for giving notice under the law on renting under Section 560 of the Judicial Code). An important point is that the time taken by the postal service is not included in procedural deadlines (the situation is different for substantive deadlines). This means that, where a procedural deadline is concerned, an action is brought in time if it is posted on the last day of the period allowed (date as postmarked), even if it does not reach the court until a long time after the deadline.

Legal, judicial and inquiry deadlines:

Under Austrian law, a distinction is also drawn between situations in which the period allowed is directly determined by the law (e.g. deadlines for bringing actions) and those in which it is determined by the judge in accordance with the requirements of the individual case (e.g. the deadline for lodging security to cover costs). The inquiry deadlines represent a combination of both situations; in this case the law merely stipulates a particular framework (minimum and maximum duration or an approximate value, as in Section 257(1) of the Judicial Code, for the convening of a preparatory meeting).

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Absolute deadlines are determined by the time at which they end (usually a calendar day); whereas the beginning and duration are given relative deadlines.

Deadlines can usually be extended by the judge (extensible deadlines). Exceptional cases in which the law prohibits extension are known as non‑extensible or mandatory deadlines (e.g. deadlines for commencing actions).

The distinction between changeable and non‑changeable deadlines is based on whether reversion to the previous state of affairs is possible in the event of failure to meet a deadline. As a general rule, deadlines can be altered; however, if reversion to the previous situation is prohibited - an exceptional situation - the deadline is known as a preclusive period or ad hoc deadline. Procedural preclusive periods include the deadline for complaints relating to revocation and for complaints concerning the resumption of proceedings (Section 534 of the Judicial Code).

2. List of the various days listed as non-working days under Regulation (EC, Euratom) No 1182/71 of 3 June 1971

The non-working days in Austria are Saturday, Sunday, Good Friday and legal holidays: New Year's Day (1.1.), Epiphany (6.1.), Easter Monday, May Day (1.5.), Ascension Day, Whit Monday, Corpus Christi, Assumption (15.8.), Austrian National Day (26.10.), All Saints' Day (1.11.), the feast of the Immaculate Conception (8.12.), Christmas Day (25.12.) and St Stephen's Day (26.12.).

3. What are the applicable general rules on time limits for the various civil procedures?

Most provisions relating to deadlines may be found in Sections 123-129 and Sections 140-143 of the Judicial Code (ZPO) and Section 89 of the Court Organisation Act (GOG).

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4. When an act or a formality has to be carried out within a given period, what is the starting point, ie, the initial moment from which the period runs (“terminus a quo”) of this act or this formality?

The starting point is generally the moment at which the service of the decision determining or giving rise to the deadline takes effect; in other cases it is the moment at which that decision is announced (Section 124 of the Judicial Code).

4.a) Can the starting point at which the period runs be affected or modified by the method of transmission or service of documents (personal service by a bailiff or postal service)?

No. As set out under point 4, the day of service is generally the event giving rise to a procedural deadline. This has nothing to do with the way in which service is carried out.

5. From when does this period begin to run?

The limited period starts with the service or announcement of the decision stipulating or giving rise to the said period.

5.a) When such a period is expressed in days, does the actual date of the act, of the event, the decision or the date of service and/or intimation which begins it count?

No, the limited period does not include the day on which the event giving rise to that period (e.g. service of the relevant document) occurs.

Does the starting time for any time limit depend in any way on the receipt by or knowledge of the action by the recipient? If so, how?

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No.

5.b) When a time limit is expressed in days, does the indicated number of days include calendar days or only working days?

Time limits are calculated in calendar days.

For example, if a person must act or is served a document on Monday, 4 April 2005 and he or she is requested to answer within 14 days of service, does this mean that he or she is required to answer before:

i) Tuesday, 19 April (the last day available for the answer is Monday, 18 April).

5.c) When such a period is expressed in months or in years?

Time limits are calculated in calendar days in these cases too.

5.d) When do such deadlines expire?

Periods of one week, one month or one year end on the day in the last week or month which corresponds in name or number to the first day of the period in question (Section 125(2) of the Judicial Code). If there is no such day in the last month of the period in question (if, for example, a one-month period begins on 31 January), the period ends on the last day of the last month (Section 125(2) of the Judicial Code). Non-working days have no bearing on the beginning and the duration of limited periods of time.

Are there any starting points for time limits which apply exceptionally or particularly in certain civil procedures?

No.

6. If the period expires on a Saturday, Sunday or a public holiday or non-working day, is it extended until the first following working day?

Yes. If the period expires on a Saturday, Sunday, public holiday or Good Friday, it does not end until the first following working day.

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Is this extension applicable even when the period in question has a future event as a starting point?

Yes.

7. When the request is taken to a court which has its seat in the mainland territory of the Member State (in the case of Member States that comprise entities apart from the metropolis or have geographically separate entities), are deadlines extended for persons who live/reside in one of these entities or for those who live/reside abroad? If so, for how long?

This does not apply to Austria.

8. Conversely, when the request is taken to a court which has its seat in one of the entities which are geographically distinct from the mainland, are deadlines extended for persons who live/reside in one of these entities or for those who live/reside abroad?

This does not apply to Austria.

9. Are there time limits for appeals specific to certain civil matters?

The deadlines for appeal depend, as a matter of principle, on the type of decision (judgment or decision) and the nature of the case. In civil cases the deadline for one type of appeal (Rekurs) is generally 14 days, while the deadline for another type (Berufung) is four weeks.

10. Can courts, in an emergency or for any other reason, shorten appearance deadlines or set a particular date for appearance? Conversely, can such periods be extended?

Deadlines can usually be extended by the court. In those exceptional cases in which the law prohibits extension, they are known as non-extensible or mandatory deadlines (e.g. appeal deadlines).

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All deadlines can be shortened by agreement between the parties concerned, for which documentary evidence must be produced. The court can decide to shorten a deadline at the request of one of the parties if it is credibly demonstrated that this is needed in order to avoid potential substantial drawbacks, and if the party whose actions are subject to that deadline is readily able to take the legal proceedings concerned within the shortened deadline (Section 129 of the Judicial Code).

A deadline can be extended on request if the party benefiting from the extension has unavoidable and very serious reasons for being unable to carry out the legal proceedings covered by the deadline in good time, and, in particular, if it would suffer irreparable damage if the deadline were not extended (Section 128(2) of the Judicial Code). Deadlines cannot be extended on the basis of an agreement between the parties (Section 128(1) of the Judicial Code).

11. When an act intended for a party in a place where he/she would benefit from an extension of a time limit is notified in a place where those who reside there do not benefit from such an extension, does this person lose the benefit of such a time limit?

No, because the issue at stake here is the timeliness of legal proceedings in relation to an Austrian court.

12. What are the sanctions in the event of failure to comply with deadlines?

As a general rule, failure to comply with an element of legal proceedings results in the party concerned being excluded from the following stage of legal proceedings (preclusive effect, Section 144 of the Judicial Code). There are some exceptions, including Section 289(2) of the Judicial Code (concerning the consequences of failure to appear for the hearing of the evidence) and Section 491 of the Judicial Code (concerning the consequences of failure to appear for appeal proceedings).

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Delayed legal proceedings are generally be rejected on legal grounds, although in some cases they may be rejected on the basis of an application only.

Failure to comply may also have particular consequences in addition to its usual results. These vary very considerably. The most significant particular consequence of failure to comply is that where one party fails to comply, the other party can apply for a judgment by default on grounds of failure to comply (Sections 396 and 442 of the Judicial Code). To give a further example, under Section 170 of the Judicial Code, failure by both parties to appear in court results in the suspension of proceedings (for at least three months). Should the complainant in matrimonial proceedings fail to appear, the complaint is declared withdrawn but not abandoned, at the request of the accused party (Section 460 Z 5 of the Judicial Code).

13. If the deadline expires, what remedies are available to defaulting parties?

The following remedies are available to expunge the legal consequences of failure to appear in court or to carry out an act that comprises part of legal proceedings:

  1. Reversion to the previous state of affairs (Sections 146 ff of the Judicial Code)
  2. An appeal (Widerspruch) (Sections 397a and 442a of the Judicial Code)
  3. An appeal (Berufung) (Sections 461 ff of the Judicial Code)
  1. Reversion to the previous state of affairs is a legal remedy against the consequences of failure to appear in court or to take part in a legal act subject to a deadline which can be used in cases where the party or its representative has failed to comply owing to an unforeseen or unavoidable event and the party or its representative is not responsible, or is responsible to a minor degree only (slight negligence) for the failure to comply. This appeal must be submitted within a fortnight of the removal of the obstacle.
  2. An appeal (Widerspruch) is a legal remedy designed to expunge a judgment on failure to comply under Section 396 and/or Section 442 of the Judicial Code. As a rule, appeals should be submitted to the trial court within a non-extensible period of 14 days from the notification of the judgment concerning failure to comply, in the form of a preparatory document.
  3. An appeal (Berufung) can be lodged against a judgment concerning failure to comply on the grounds that there has been no failure to comply, as one of the grounds for invalidity referred to in Section 477 (1 Z 4) and Z 5 of the Judicial Code (incorrect notification and/or failure to represent the party taking part in the procedure) is present.

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Last update: 24-05-2007

 
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