Innovations introduced by the 2. COVID-19 Act

In a constitutional state, legislative initiatives usually take time to be submitted to the legislative body and passed by it (at federal level: National Council and Federal Council): Ministerial draft à in the best-case evaluation procedure à government billsà parliamentary procedure. It can also be faster if parliamentarians submit so-called initiative motions. As far as can be seen, however, in recent years Austria has never passed so many such drastic laws, and certainly not as quickly, as has been the case since the beginning of the COVID-19 crisis.

After the adoption of the COVID-19 Act on Sunday, March 15, 2020, the time had come again the following Friday / Saturday (March 20 / 21, 2020): The 2. COVID-19 Act was whipped through. This is a collective amendment with 39 amendments and five new federal laws (Federal Law Gazette I No. 16/2020). It is nice, if the constitutional state works even in times of crisis.

In the following, we briefly summarize the main legal changes for you (the masculine form is used for better readability):

1.
Amendments to the employment laws

In particular, with regard to the entry prohibitions issued on the basis of the COVID-19-Measures Act, the legislator was forced to amend certain employment law provisions. In addition, legally mandated suspensions of deadlines were adopted to ensure that the protection of employee claims can sufficiently be guaranteed under the current circumstances:

• General Civil Code (ABGB): It was clarified that employers who are affected by a measure based on the COVID-19-Measures Act are generally obliged to continued payment of salaries. However, the affected employers have the possibility to unilaterally order the use of holiday or time credits within certain limits.
• Labour Constitution Act (ArbVG), Employment Law Harmonization Act (AVRAG), Equal Treatment Act (GlBG): In order to ensure that employee claims do not become statute-barred or lapse based on statutory provisions, collective bargaining agreement provisions or due to contractual limitations during the crisis, a suspension of current or newly started expiry periods until 30 April 2020 has been introduced. In addition, a suspension of the deadlines until 30 April 2020 concerning the challenge of terminations or dismissals (pursuant to Sections 105 (4) or 107 ArbVG) or for certain claims arising from the Equal Treatment Act (GlBG) has been adopted.
• ArbVG: With regard to the fact that, if a works council exists, a shop agreement for Corona-short time work needs to be concluded including provisions that holiday and time credits must be used up by the employees, the works council has been authorised to conclude such agreements.
• AVRAG: Further, for the specifically created option of agreed subsidised time-off during the crisis a special provision for people who need to take care of people with disabilities was included besides the applicability for people who need to take care of children under 14 years of age.

Please find detailed information here 

2.
Amendments to laws relating to taxes and duties

2.1
Stamp Duty Act 1957

The amendment introduces a comprehensive exemption from fees and federal administrative charges for deeds and official acts (thus it is an exemption from fixed fees, but not from stamp duties imposed on legal transactions) that are directly or indirectly related to incidences following from COVID-19 measures. This is to ensure, for example, that no fees or federal administrative duties or charges are payable for applications for support payments under the Epidemic Act 1950. The exemption is to take effect retroactively and cover both future procedures and those already in progress at the time of entry into force.

2.2
Tobacco Tax Act 1995

The gradual increase of the tobacco tax rates for tobacco products as defined in the Tobacco Tax Act was postponed from 1 April 2020 to 1 October 2020. The increase of the volume-based tax element in three stages (1 Oct 2020, 1 Apr 2021, 1 Apr 2022) at EUR 5 per 1,000 units and the reduction of the value-based tax element in three stages at 1.5% of the retail selling price remain unchanged.

2.3
Federal Fiscal Code

In pending administrative proceedings of the tax authorities, all deadlines provided for the ordinary appeal procedure (7th Section, Subsection A) which have not yet expired by 16 March 2020 or whose period begins between 16 March 2020 and 30 April 2020 shall be interrupted until the end of 30 April 2020. They shall restart on 1 May 2020. This concerns the time limits for appeals (Bescheidbeschwerden), submission requests (Vorlageanträge) and complaints about measures (Maßnahmenbeschwerden), but not any other deadlines.

The tax authority may declare in the relevant proceedings that a deadline is not interrupted and set a new reasonable deadline.

In addition, the Federal Minister of Finance was authorised to extend the interruption of the deadlines until 30 April 2020 by regulation until 31 December 2020 at the latest or to provide for further general exceptions to the interruption, insofar as this is necessary to prevent and combat the dissemination of COVID-19.

Where, as a result of measures taken to prevent the dissemination of COVID-19, freedom of movement or interpersonal contact is restricted, oral hearings and interrogations, with the exception of audio-visual interrogations, shall be conducted only to the extent strictly necessary to maintain the proper administration of justice. The same applies to oral communication between the authorities and the parties involved, including the receipt of oral submissions, and with other persons in the course of the proceedings. Where it is absolutely necessary to hold an interrogation or oral hearing, they may be held in the absence of all other parties, using appropriate technical means of communication.

The following applies to provincial and municipal taxes: If, as a result of the appearance and dissemination of COVID-19, the activity of an authority ceases, the higher authority in question shall, at the request of one of the parties involved, designate another competent authority in the same country to decide the matter. This is only the case if during the aforementioned interruption of deadlines, procedural steps are to be taken which are urgently necessary to prevent substantial and irretrievable damage to one of the parties involved.

2.4
Tax Criminal Code

Based on § 1 of the COVID-19 Judicial Act, an interruption of time limits should also apply to tax criminal proceedings.

The period for objection (§ 145 (1)), the period for appeal (§ 150 (2)) and the period for filing an appeal (§ 150 (4)) will be suspended if the period has not yet expired on 16 March 2020 (thus retroactively) or has started to run between 16 March 2020 and 30 April 2020. The periods shall begin to run anew on 1 May 2020.

In the respective proceedings, the criminal tax authority may declare that a deadline is not interrupted, but instead that a new reasonable deadline applies.

In addition, it is provided that according to the new Act to Prevent the Dissemination of COVID-19, oral hearings, with the exception of audio-visual hearings, are only to be conducted to the extent that this is absolutely necessary to maintain an orderly administration of criminal justice in financial matters (§ 265a (4)). Similar provisions are to be implemented for party transactions.

Finally, the Federal Minister of Finance is bestowed with the authority – analogous to the Federal Fiscal Act limited until 31 December 2020 – to issue Regulations, on the basis of which, inter alia, the interruption of time limits pursuant to mentioned provision can be extended; further general exceptions to the interruption or further provisions can be provided, e.g., a Regulation can also exclude consequences of default in the event of non-compliance with deadlines and determine whether and how procedural disadvantages arising from the failure to meet deadlines or dates can be avoided or eliminated.

3.
Amendments to the procedural rules in the public law sector

3.1
Federal Act on accompanying measures to COVID-19 in administrative proceedings, in proceedings before the Administrative Courts and in proceedings before the Higher Administrative court and the Constitutional Court

The COVID-19 crisis also affects the work of administrative authorities, administrative courts and the Higher courts of public law (VfGH, VwGH).

The legislator reacts as follows:

• Periods in pending proceedings and limitation periods shall in principle be interrupted until the end of 30 April 2020. This applies to all periods whose event triggering the period falls within the period after the entry into force of this Federal Act (22 March 2020, 0:00 o´clock), as well as periods that have not yet expired by the time this Federal Act enters into force. They shall begin to run again on 1 May 2020. However, there are certain exceptions (outside the scope of application of the Administrative Procedure Act, not in the case of time limits under the Epidemics Act, by decision in individual cases, etc.).
• The period from the entry into force of this Federal Act until the end of 30 April 2020 shall not be included in the period in which an application initiating proceedings (section 13 para. 8 AVG) is to be filed.

In addition, the Federal Chancellor was authorised to extend or shorten the interruption of time limits or to provide for further general exceptions to the interruption by ordinance, insofar as this is necessary to prevent and combat the spread of COVID-19.

In addition, this new Federal Act contains special provisions concerning

• oral hearings (mündliche Verhandlungen und Vernehmungen),
• oral communication between authorities and parties, and
• termination of the activity of an authority as a result of COVID-19,

when measures must be taken to prevent the spread of COVID-19 that restrict freedom of movement or interpersonal contact.

3.2
Higher Administrative Court Act 1985 and Constitutional Court Act 1953

According to the new legal situation, the Higher Administrative Court can carry out consultations and resolutions in form of circulation resolutions.

In contrast, the Constitutional Court only has this possibility (optionally also by means of telecommunications) if it "cannot meet within a reasonable period of time in case of extraordinary circumstances. In addition, the Constitutional Court may, upon request, extend the period for repairing the legal situation (law or ordinance) following a quashing decision if, in the case of extraordinary circumstances, a succession regulation cannot be issued in time for legal or factual reasons.

3.3
Federal Constitutional Act

The Federal Government also has the possibility now, of passing a resolution by a circulation resolution or in a videoconference. In addition, it is explicitly anchored that decisions of the federal government must be made unanimously.

4.
Amendments to the civil procedural rules

4.1. Governance of the Judicial System and Procedural Deadlines – Austrian Federal Act on Covid-19-Measures for the Judicial System

In order to manage the current crisis situation for the judicial system the law establishes special provisions for civil proceedings for a transitional period (until 31 December 2020) (see in detail). Among others, the "procedural rules for the crisis" cover the following areas:

• Interruption of all statutory and judicial deadlines which have not yet expired on 22 March 2020 or which start to run thereafter until the end of 30 April 2020. Those deadlines will start to run again on 1 May 2020. The law, however, provides for certain exceptions (e.g. deadlines to comply with a judicial order (Leistungsfristen), deadlines in regard to the Federal Act on the Compulsory Hospitalisation of mentally ill People, Unterbringungsgesetz, or under the Epidemic Act 1950).
• Suspension of certain deadlines to initiate proceedings. The period between 22 March 2020 and 30 April 2020 is not taken into account for the period during which an action or an application should be filed with a court or a declaration should be submitted therewith. According to the explanatory remarks to the law, this covers deadlines for the statute of limitation , but also, for example, the deadline to submit the annual accounting documents to the court or the deadline to file an action due to the unlawful interference with the use of property.

The general restrictions on the freedom of movement and the restrictions for social contacts also have an impact on oral hearings. During this period

• only absolutely necessary oral hearings shall take place,
• appropriate technical means of communication (video or telephone conferences) shall be used instead, and
• decisions and documents that have to be served physically shall be processed by the court in urgent cases only.
• Service of process by means of the Electronic Court Filing System will continue.

These special provisions do not apply in Arbitration Proceedings. Here, it is up to the arbitrators and the arbitral tribunal how they deal with COVID-19 in pending arbitrations. Certain institutions have already reacted. On its website the Vienna International Arbitral Centre (VIAC) has published a checklist for the conduct of (oral) hearings. On 17 March 2020 the Secretariat of the ICC International Court of Arbitration announced that all oral hearings that should have taken place at the ICC Hearing Centre in Paris until 13 April 2020 have been postponed or cancelled.

4.2
Enforcement Act

§ 200b now allows - under certain circumstances - to suspend enforcement acts in case of an epidemic or pandemic. Previously, this was already possible in the event of a natural catastrophe (high flood, avalanches, pressure resulting from snow, landslide, mountain slide, hurricane, earthquake or similar, comparably major disasters).

4.3
Service of Process Act

A new Section 26a of the Service of Process Act (Zustellgesetz) provides for facilitations that avoid contact between the postman and the addressee. It is no longer necessary for the postman to physically hand over the document and obtain the recipient’s signature to confirm the service. It is for now sufficient to place the document into the mailbox (Abgabeeinrichtung or Abgabestelle) or to leave it at an appropriate location, e.g. at the apartment door, at the house or the garden door. Thereafter, the addressee shall be notified directly in writing, orally (e.g. via the intercom or through the apartment door) or by telephone.

5.
Insolvency code

According to the Austrian Insolvency Code, directors are obliged to file for insolvency proceedings without undue delay, but at the latest within 60 days, as soon as one of the reasons to file for insolvency is in place (i.e. illiquidity or over-indebtedness). Already under the current rules, this period is prolonged to 120 days if the insolvency is at least indirectly caused by a natural disaster. Now it is explicitly clarified that the longer period also applies in case of epidemics or pandemics. This amendment aims to facilitate restructuring efforts in particular with a view to announced governmental support, which may not be available quick enough within the 60 days period.

The current amendments do not change, however, that a company may continue its business operations during this 60/120-day period only if attempts to rescue the business are being seriously pursued and appear promising. All creditors must in principle be treated equally; therefore, it would be inadmissible at this stage to pay in full aggressive or particularly important creditors while leaving out others. It may also be inadmissible to provide (additional) collateral to keep credit lines open. On the other hand, it is permissible to make reasonable payments with an immediate exchange (Zug-um-Zug) and those that are absolutely necessary for the continuation of the business operations. Therefore, despite the prolongation of the period to 120 days, continuing the operations and trying to rescue the business remains challenging from the legal perspective and is associated with risks for directors. These amendments therefore appear not as far reaching as measures apparently considered in other jurisdictions (which aim to further relieve directors form personal liability in order to prevent overcautious directors from still applying for insolvency proceedings).

The right of creditors to file for insolvency remains untouched (so far). Public institutions such as social insurance and tax authorities have e.g. already indicated that they will be reluctant in that regard, though.

Finally, the amendments provide for certain support for debtor companies which are already subject to a court approved restructuring plan. Such companies shall be prevented from becoming insolvent again just because they cannot make quota payments under the restructuring plan on time due to the current crisis.

More details can be found here 

6.
Federal Act on Special Measures in Company Law Based on COVID-19 (COVID-19 Act on Company Law)

The legislator also facilitates the holding of shareholders' meetings and supervisory board meetings.

More details can be found here 

7.
Amendments to specific administrative laws in the COVID-19 crisis

7.1
COVID-19-Measures Act

Only a few days after the COVID-19 Act of Measures comes into force (16 March 2020), the first rectification is already underway:

The authorization for the responsible Federal Minister to issue prohibitions to enter certain business premises and places when COVID-19 occurs is being expanded: In the future, it will also be possible to prohibit entering workplaces as defined in Section 2 para 3 of the Employee Protection Act (ArbeitnehmerInnenschutzgesetz). According to the legal definition referred to, workplaces are

"workplaces inside buildings and workplaces outside. Several buildings of an employer located on the same premises or otherwise spatially connected to each other count together as one workplace. Construction sites within the meaning of this Federal Act are temporary or mobile construction sites where structural and civil engineering work is carried out. This includes in particular the following work: excavation, earthwork, actual building work, assembly and dismantling of prefabricated building elements, fitting out or installation, alterations, renovation, repairs, dismantling, demolition, maintenance, upkeep, painting and cleaning work, improvements. Foreign workplaces within the meaning of this Federal Act are all places outside workplaces where work other than construction work is carried out, in particular also the places in means of transport where work is carried out.

In addition, the legislator now expressly clarifies the relationship between prohibitions of entry on the basis of the COVID-19-Measures Act and the closure of establishments on the basis of the Epidemic Act 1959.

• Prohibition of entry does not constitute a closure of a business under the Epidemic Act 1959, but it also means that those companies affected by a prohibition of entry are not entitled to compensation for loss of earnings under Section 32 of the Epidemic Act 1959.
• Prohibitions to enter and closures are not mutually exclusive. In particular, a closure of business can also be issued after the ordering of entry prohibitions.

The amendment will enter into force retroactively from 16 March 2020. This is to underline that closures of business based on the Epidemic Law 1950, which will be issued after the entry into force of the ordinances under the COVID-19 Measures Act on 16 March 2020 (see in detail), are lawful.

7.2
Epidemic Act 1950

The Epidemic Act 1950 is supplemented by two paragraphs on "measures in the context of a pandemic":

• In accordance with the International Health Regulations, the Federal Minister responsible for health affairs will become the IGV contact point in Austria and has to decide on the following,

• what information is forwarded to the World Health Organisation (hereinafter referred to as the WHO), and
• to which authorities an information, which is transmitted by the WHO to the national IGV contact point, is forwarded.

In order to ensure the flow of information within Austria, the district administrative authorities and provincial governors are obliged to forward the necessary (personal) data to the Federal Minister.

• In addition, resources will be strengthened to the extent that, in times of a pandemic, scientific institutions, especially veterinary institutions, will be allowed to provide services for humans. However, such conduct has to be notified to the competent Ministry.

8.
Amendments to health law (life sciences)

8.1.
Health law: Mobilising resources in the event of a pandemic

Various legal provisions are adapted in order to mobilise additional personnel and other resources in the event of a pandemic. This concerns in particular the following measures for the duration of the pandemic:

Act on the Medical Profession 1988:

• Scientific institutions, especially veterinary institutions, may carry out laboratory diagnostic examinations for humans (such activities are usually reserved to medical doctors).
• Retired medical doctors, foreign medical doctors and medical residents (Turnusärzte) may carry out medical activities in cooperation with general practitioners or specialists authorised to practise their profession independently in Austria. However, such activities must be reported to the Austrian Medical Chamber (Österreichische Ärztekammer) in advance.

Paramedics Act:

• Paramedics may themselves perform the smear test from the nose and throat for diagnostic purposes.
• The legally prescribed mandatory requirement for continuing training / recertification is relaxed.

Health and Nursing Act:

• Persons who are generally not entitled to perform nursing services may assist with basic nursing care.
• Persons who have acquired a qualification in health care and nursing but who are not (yet) registered in the Register of Health Professionals (Gesundheitsberuferegister) may, under certain conditions, perform activities in the more advanced level (gehobener Dienst) of health care and nursing.
• Persons who are not fully trained may be used for activities in the care assistant professions (Pflegeassistenzberufe) under certain conditions.

Federal Act on the Regulation of Higher Medical-technical Services:

• Persons who have not yet completed their training or are not registered in the Register of Health Professionals (Gesundheitsberuferegister) may be used to work in a higher medical-technical service (MTD).
• Persons authorised to perform the medical-technical laboratory service may also carry out the laboratory methods arising in connection with the pandemic without a medical doctor's order.
• In addition, graduates of a science or veterinary medicine degree programme may be used for these activities.

Federal Act on Hospitals and Sanatoriums

• Medical care institutions for persons suffering from COVID-19 are not considered hospitals and therefore do not have to meet the strict legal requirements for hospitals.

8.2
Medical Devices Act

The Federal Minister of Social Affairs, Health Care and Consumer Protection is authorised, in crisis situations (e.g. pandemic), for a transitional period of up to a maximum of six months to

• enact deviating regulations for individual sections of the Medical Devices Act, and
• prescribe regulations on supply and provision obligations for manufacturers, authorised representatives and supply points (Abgabestellen) for medical devices.

However, this authorisation only applies within narrow limits, i.e. if the essential supply of the population would otherwise be seriously and substantially endangered. Furthermore, these crisis measures may only be maintained provided this is necessary due to the special situation (and provided that the protection of the life and health of humans and animals is ensured).

8.3
Pharmacy Law

In the event of a crisis, the locally competent district administrative authority is authorised to issue a deviating regulation - for a limited period of time - on the operating hours and emergency preparedness of pharmacies by ordinance or also on application.

9.
State support measures / state aid

9.1
Federal law on special support for small and medium-sized enterprises (SME support law)

A key policy objective is to support small and medium-sized enterprises (SMEs). To this end, various support measures are available for SMEs from inter alia:

• the Austria Wirtschaftsservice Gesellschaft mit beschränkter Haftung (aws): assumes liabilities and
• the Österreichische Hotel- und Tourismusbank Gesellschaft m.b.H. (ÖHT): assumes guarantees or grants loans.

However, these funding agencies in turn require security if liabilities are incurred or loans cannot be (fully) repaid. This security is provided by the fact that the state (BMF) assumes a contractual default liability towards aws and ÖHT.

Until now, this deficiency liability was capped to the extent that the BMF was only allowed to assume obligations up to a total outstanding liability (plus interest and costs) of EUR 750 million for aws and EUR 375 million for ÖHT.

With the current amendment to the law, the Federal Ministry of Finance, as part of the COVID-19 crisis management measures, is authorised to increase this total exposure by decree for a period of three months.

9.2
Federal Act on the Establishment of a Hardship Fund (Hardship Fund Act)

With this Act, the state creates a safety net for hardship cases in one-person companies (EPU), freelancers, non-profit organisations (NPO) and micro-enterprises. The funding volume amounts to EUR 1 billion, with the money coming from the COVID-19 crisis management fund. The support programme is handled by the Austrian Chamber of Commerce (WKÖ).

The Austrian Minister of Finance will issue a guideline for the handling of the Hardship Fund on the basis of the KMU Promotion Act (KMU-Förderungsgesetz) and regulate the following points, among others: Legal bases, aims; the object of the funding; calculation of the amount of funding; the personal and material requirements for obtaining funding; the extent and type of funding; the procedure; application (type, content and equipment of documents); decision; mode of payment; reporting (rights of control); discontinuation and reclaiming of funding; period of validity; evaluation.

Funding is provided in the form of a grant. Corresponding applications can be submitted online to the WKÖ.

Further information can be found at https://www.wko.at/service/haertefall-fonds-epu-kleinunternehmen.html.

10.
Telecommunications Act 2003: Warning in case of crisis by SMS can be enforced

Crises require rapid intervention by the authorities, but also rapid and barrier-free information for the persons affected.

Now that modern communication runs via mobile phone, it is obvious that authorities also warn the population by SMS (messages on mobile phones) "of impending or spreading major emergencies and disasters" and call on them to behave appropriately. Although this was already possible in the past, it required the voluntary participation of mobile operators.

The amendment creates the legal basis - for the time being only for a transitional period until 31 December 2020 - to be able to order and thus enforce public warnings / requests by SMS.

The authorities will continue to rely on voluntary action and informally request mobile operators to pass on official warnings to their customers in the event of a crisis. However, if the mobile operator fails to act, the authorities may issue an official decision, the non-observance of which - due to the special public interest in the warning - is threatened with an administrative fine of up to EUR 37,000.

Public warnings by SMS shall be easily received by end-users and shall be free of charge for them, provided that this is economically and technically reasonable and in accordance with relevant data protection legislation.

Please note: This newsletter merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The newsletter cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the newsletter.