Everyday procedural law is determined by time limits. These are also necessary in order to limit the time available to the parties and their legal representatives and thus ensure the progress of the proceedings. However, anyone who misses a deadline is punished by law with the loss of procedural rights or even the loss of the case. Under certain circumstances, restitutio in integrum can offer a way out.
The legal institution of restitutio in integrum is not only found in civil law (Section 146 ZPO), but also in administrative law (Section 71 AVG, Section 208 BAO, Section 46 VwGG, Section 33 VwGvG) and in criminal court proceedings (Section 364 StPO), although it should be noted that the provisions of the ZPO have been adopted almost word for word, which is why the decisions of the Supreme Court on Section 146 ff ZPO are of the greatest importance. However, there are subtle differences depending on the area of law (e.g. tenancy law, employment law, company law, etc.) and the highest court (Administrative Court, Supreme Court, etc.), which cannot be generalized and would go beyond the scope of this article.
Pursuant to Section 146 ZPO, a party who was prevented by an unforeseen or unavoidable event from appearing on time at a hearing or from performing a procedural act in due time may make up for the procedural act if it was missed only due to a lesser degree of negligence.
Restitutio in integrum is intended to put the party in the same position as if they had not missed the deadline. The first requirement is that the missed procedural act is made up for at the same time as the application for reinstatement (VwGH Ra 2016/19/0370). The application for reinstatement must be submitted within 14 days of the (possible) removal of the obstacle (Section 148 (2) ZPO). If, for example, an error is involved, the time limit begins to run as soon as the error is possibly clarified if the clarification was not provided due to conspicuous carelessness (OGH 3 Ob 60/13i)
In the application itself, the unforeseen or unavoidable event and also the beginning and end of the same must be sufficiently specified to prove timeliness (VwGH Ra 2016/12/0026), also because new reasons submitted after the deadline has expired can no longer be taken into account due to the contingency maxim applicable in the reinstatement procedure (see OGH 1 Ob 157/14s). The grounds for reinstatement and also the lack of fault or at least only minor fault must be made credible in the application (Section 149 (1) ZPO), i.e. presented as sufficiently probable (LVwG NÖ LVwG-AV-966/002-2016). As the evidence must be available, inquiries to authorities (see Rechberger in Rechberger4§ 274 ZPO Rz 4) are not possible. However, affidavits from law firm employees, for example, are popular and admissible.
As the reinstatement of rights requires the expiry of a deadline, it cannot be applied for if the deadline has not even begun to run. Therefore, if the notification was not legally effective, for example because it was placed in the wrong mailbox, it is also not possible to reinstate the service (see BFg RV /75000839/2017). In this case, legally effective service must first be obtained.
As already mentioned, an unforeseen or unavoidable event is required for an application for reinstatement to be granted. An event is unavoidable if an average person could not have prevented its occurrence; an unforeseen event is one that was not actually expected to occur and could not have been expected to occur. Of course, the personal circumstances of the party must be taken into account (see Liebhart, Wiedereinsetzung in den vorigen Stand, ÖJZ 2018/120).
The central point of most applications for reinstatement is fault. As already explained, only a lesser degree of negligence may be present, which is to be equated with the more common phrase “slight negligence”. According to case law, slight negligence describes behavior that is based on a mistake that can occasionally be made even by a careful person. Gross negligence, on the other hand, occurs when such a mistake would never have been made by a prudent person in this situation. In practice, however, a stricter standard is sometimes applied, especially when it comes to professional party representatives or entrepreneurs.
The question of whether gross or slight negligence exists in an individual case can only be answered by considering the person of the applicant. A different standard of care must be applied to a lawyer than to a legal layperson; what can be expected of an entrepreneur does not necessarily have to be expected of a private individual. In this respect, a corresponding distinction must also be made when assessing fault.
For a lawyer, the standard of a conscientious and prudent lawyer applies when assessing fault. Among other things, case law requires such a lawyer to set up the most efficient organization possible with control mechanisms in order to prevent failure to meet deadlines (see VwGH 2013/03/0094). Particularly in administrative court proceedings, detailed submissions must be made regarding the control mechanisms and the course of the control. If this is not done, the reinstatement will generally not be granted. In addition, the lawyer must verify the date of service (VfGH 1600/2016) and the correct addressing of an appeal (VwGH 2014/08/0001) despite the client’s descriptions.
The high demands placed on a lawyer are also reflected in a decision by the Administrative Court of September 18, 2013, in which it did not consider even a “serious illness” and the age-related forgetfulness of a lawyer at the age of 84 to be a lesser degree of negligence on the basis of the standard applicable to lawyers (VwGH 2013/03/0094). It is therefore not surprising that legal errors are only considered slight negligence in exceptional cases, for example in the case of completely new problems and at least a justifiable legal opinion.
A popular argument used by lawyers in applications for reinstatement is a one-off error by a law firm employee despite sufficient supervision by a lawyer. However, the case law refers to work that is part of the respective employee’s area of responsibility. Therefore, if an entrepreneur, who usually has nothing to do with legal matters, commissions one of his employees to deal with a payment order, this requires supervision by the entrepreneur (LGZ Wien MietSlg 67.611). Nevertheless, the office organization of an entrepreneur is not subject to the same requirements as that of a lawyer. The misplacement of a penalty order in the course of relocation therefore justifies, for example, reinstatement (BFG RV/7500095/2017).
Although the standard of care for legal laypersons must be set low, this does not mean that all carelessness would be counted as slight negligence. On the contrary, failing to report a change of residence while proceedings are ongoing (VfGH 2753/2016), for example, constitutes conspicuous carelessness, because it should already be known from everyday knowledge that service cannot be effected without notification of the new place of residence. Furthermore, it is also reasonable to expect a legal layperson to seek assistance in good time. For this reason, a lack of German language skills (LGZ Wien MietSlg 68.563), language difficulties and failure to contact a lawyer (VfGH 21/2015) are not grounds for reinstatement. Even delays due to illness only fulfill the requirements for reinstatement if this leads to an inability to dispose or has at least impaired the ability to dispose to such an extent that the failure to act to meet the deadline can be regarded as a minor oversight (VwGH Ra 2014/05/0005). Bedriddenness and the need for rest are not sufficient in themselves (VwGH Ro 2014/06/0009).
Conclusion: In addition to some formal hurdles, the central point of an application for reinstatement is usually fault, in which the person of the applicant and their circumstances must be taken into account. While lawyers are advised to make submissions on efficient office organization, especially in administrative proceedings, entrepreneurs should also pursue the proper completion of tasks. Legal laypersons should promptly turn to competent authorities for help and information in the event of ignorance.