BEIRA Corona Task Force Update

Overview of legal measures to mitigate the financial impact of the Coronavirus crisis on companies (as per 5 May 2020)

The Austrian legislator has continued to react to the "COVID-19" pandemic, in order to, inter alia, restart the operation of courts and administrative authorities. Therefore, thirteen legislative packages, the 6th to 18th COVID-19 Act, were introduced by the government in the National Council on 28 April 2020 and subsequently passed.

Existing measures, which we discussed in our overview of 17 March 2020 and in the updates of 20 March 2020, 27 March 2020 and 10 April 2020, remain in place and are only amended or supplemented by the new COVID-19 Acts. The following is an overview of relevant measures implemented by the new legislative packages.
 

ASSISTANCE MEASURES FOR AFFECTED COMPANIES

COVID-19 Assistance Fund

Within the framework of the 18th COVID-19 Act, the legislator amended, inter alia, the ABBAG Act, stipulating that in connection with financial measures pursuant to Section 2 paragraph 2 number 7 of the ABBAG Act (i.e., guarantees, direct loans or direct grants from the COVID 19 Assistance Fund) (i) non-assignment clauses in favour of the financing bank or funding agency have a binding effect on all third parties and (ii) liabilities assumed by ABBAG or COFAG are not subject to the written form requirement (which otherwise applies to sureties/liabilities).

COVID-19 Aid Audit Act

In addition, within the framework of the 18th COVID-19 Act, the legislator enacted the COVID-19 Aid Audit Act, which regulates in detail the requirements for the tax offices (as appraisers and not as tax authorities) for the subsequent audit of state aid measures received from the COVID 19 Assistance Fund, the COVID-19 Hardship Fund or from short-time work subsidies.

Epidemics Act

Within the framework of the 16th COVID-19 Act, the legislator amended the Epidemics Act, inter alia, by granting the Minister of Health a statutory power to regulate the calculation of the amount of compensation or remuneration for loss of earnings under the Epidemics Act in order to ensure uniform administrative management by the district administrative authorities throughout Austria.

In addition, the legislator attempted to clarify the powers of public authorities in the area of the Epidemics Act, according to which regulations covering the entire territory of Austria are to be issued by the Minister of Health. Conflicting regulations of state governors or district administrative authorities shall then cease to be effective unless otherwise stipulated in the respective regulation by the Minister of Health.

The relevance of this clarification is at least questionable, since it only refers to regulations issued by the Minister of Health under the Epidemics Act, whereas the previous COVID-19 regulations were not issued under the Epidemics Act, but under the specially created COVID 19 Measures Act.
 

PROCEDURES AND DEADLINES

Civil Court Procedures

Within the framework of the 8th COVID-19 Act, the legislator has, inter alia, recast Section 3 of the 1st Act on supporting measures to COVID-19 in the justice system. Now the law provides that until the end of 2020, hearings in civil court procedures can be held without the personal presence of the parties or their representatives by means of suitable technical means of communication for word and image transmission (e.g. by means of video conferences) if the parties consent thereto. However, the parties' consent shall be deemed to have been given if they do not object within a period of time set by the court.

In certain proceedings (hospitalisation, nursing home residence and adult protection cases as well as proceedings under the Tuberculosis Act and the Epidemics Act) the parties' consent is not required at all.

All parties, witnesses, experts, interpreters and other persons to be called upon may also request to participate in the proceedings by suitable technical means of communication if they certify an increased health risk posed by COVID-19 for themselves or for persons with whom they are necessarily in contact, be it privately or professionally.

If a party or a witness does not have suitable technical means of communication at its disposal, such party not represented by an attorney may request adjournment, such party represented by an attorney and such witness may request provisional refrainment from questioning. In any case, according to the legal materials, no person is required to acquire suitable technical means of communication.

The revised provision also regulates some technical matters related to the minutes of the court hearing, the costs and the conclusion of (out-of-court) settlements.

Finally, special provisions are laid down for enforcement and insolvency proceedings, according to which the parties' consent to hold court hearings in such proceedings by way of video conferences is not required; however, persons to be heard or to be present at such hearings may, within one week of service of the summons, certify that they do not have the suitable technical means of communication. This would prevent the holding of a hearing, questioning, creditors' meeting or creditors' committee meeting.

Administrative Procedures

The legislator has laid down similar rules for administrative procedures in the 12th COVID-19 Act, which, inter alia, recasts Section 3 of the COVID-19 Act on supporting measures to COVID-19 in administrative law.

For example, official acts may only be performed in the presence of more than one other person if a distance of at least one meter can be maintained between the persons present. Persons who do not wear a mouth and nose protector can be excluded from official acts. The public authority may also conduct hearings, questionings, inspections, taking of evidence or similar acts using suitable technical means of communication for the transmission of words and images (e.g. by means of video conferences).

The parties and other persons involved, witnesses, experts, interpreters and other persons to be called upon to participate in an official act have to be given the opportunity to participate using suitable technical means of communication. If no suitable technical means of communication are available to them, the official act may be performed in their absence, in which case they shall be given the opportunity to exercise their rights or to participate in establishing the facts of the case in other suitable ways (including the possibility of raising objections at a later date).
 

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