May Official Submissions be Submitted by Email?

Nov 15, 2024 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has ruled on the question of whether submissions must be sent to the specific email address provided by an authority on their website.

In May 2023, in the case at hand, the appellant had received a penalty charge notice, on the front page of which the email address ‘strafen.bhmd@noel.gv.at’ was provided. The authority provided a different email address on their website, namely ‘post.@noel.gv.at’. The appellant sent his appeal to the email address mentioned in the notice.

However, he then received a penal order on 1 August 2023. Again, the email address ‘strafen.bhmd@noel.gv.at’ was provided on the first page of the document.

The appellant submitted his complaint by email to ‘strafen.bhmd@noel.gv.at’ on 18 August 2023. The Regional Administrative Court took the legal view that only the email address of the authority as published on the Internet must be used and rejected the appellant’s complaint as out of time.

The VwGH, to which the case was referred, did not share the legal view of the Regional Administrative Court.

Pursuant to Section 13 (2) of the Austrian General Administrative Procedures Act (Allgemeines Verwaltungsverfahrensgesetz, hereinafter AVG), written submissions may be sent to an authority by email. However, emails may be subject to ‘organisational restrictions’. For this reason, the respective authority has the right to publish online which email address must be used.

In the present case, the authority concerned had issued a notice based on Article 13(2) AVG in which it specified the email address as ‘post.@noel.gv.at’ for electronic submissions.

Nevertheless, in the course of the administrative penal proceedings against the appellant, the authority, which had previously published on its website that the use of it email address was currently limited, had informed the complainant in bold print on each official document sent to him (the penalty charge notice, the request for his justification, the final decision imposing a fine), that its email address was ‘strafen.bhmd@noel.gv.at’. Consequently, the appellant was justified in sending his appeal to that specific email address.

Therefore, the VwGH overturned the decision of the Regional Administrative Court dismissing the defendant’s complaint.

VwGH Ra 2024/02/0049 (18 April 2024)