In addition to preparing documents to submit to the courts, Austrian lawyers are also required to navigate which submission method a court considers legally acceptable for a particular case. One field of law where this has posed a challenge involves “other applications concerning the land registry” pursuant to Article 448 para. 4 Rules on Court Procedure (“Geschäftsordnung der Gerichte 1. Instanz”).

Generally, according to Austrian Law, lawyers are required to file all submissions to the courts electronically, via a program specially developed for sending correspondence safely between the courts and lawyers. This program is called “WEB-ERV”. However, there are exceptions to this rule. According to Article 10 para. 1 Law on Electronic Submission (“ERV 2006”) in conjunction with Article 448 para. 4 Rules on Court Procedure, for example, “other applications concerning the land registry” are not to be filed electronically.

Our firm recently handled a case involving an application for enforcement proceedings and the foreclosure sale of property. Because an application for foreclosure falls under the category of “other applications concerning the land registry” a submission via WEB-ERV would normally be inadmissible. However, we submitted our application via WEB-ERV but along with it, submitted the execution title in its original form. The execution court accepted the application and approved the compulsory sale.

The debtor, however, appealed the court’s decision to accept the application on the grounds that the electronic form of submission was unacceptable according to Article 10 para. 1 Law on Electronic Submission.

The Federal Court for Civil Matters of Vienna, as Appeal Court, denied the appeal stating that no relevant procedural violation was apparent. Such procedural violations only occur when, in theory, circumstances could be deemed sufficient for the court to have come to an alternative decision. Because no difference exists between a request to open execution proceedings submitted electronically over WEB-ERV (when the original execution title has been presented), and a request submitted via standard postage service, the proceedings were not defective and the appeal was denied. Although the submission method was not completely accurate, the decision of the court would have remained the same had the application been submitted via standard mail. When the execution court receives a submission via WEB-ERV, it simply prints it onto paper. Therefore, electronic submissions and applications sent via mail have the same content.

In summary, according to the Federal Court of Civil Law Matters in Vienna, an execution application to gain approval for the foreclosure sale of a property– although categorized as „other applications concerning the land registry” – can also be submitted electronically. However, the submitting counsel is still required to present the original of the execution title.

If you have a matter involving Austrian civil law or any other legal matter that you would like to discuss with one of our Austrian or international attorneys, please contact me at melanie.perchtold (at) specht-partner.com