OGH refers 1st COVID-19-JuBG to ECJ

Feb 10, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) referred the question to the European Court of Justice (ECJ) for a preliminary ruling whether the interruption of all procedural time limits pursuant to Sec. 1 (1) of the 1st COVID-19 Accompanying Justice Act (COVID-19-Justiz-Begleitgesetz, 1. COVID-19-JuBG) is in conflict with the 30-day time limit for the opposition against a European order for payment (Art 16 (2) of the Regulation (EC) No 1896/2006 creating a European order for payment procedure).

The 1st COVID-19-JuBG interrupted "all procedural time limits whose event triggering the time limit falls in the period after the entry into force of this Federal Act, as well as procedural time limits that have not yet expired by the entry into force of this Federal Act, until the expiry of 30 April 2020".

Art 26 of Regulation (EC) No 1896/2006 provides that all procedural issues not explicitly regulated in it are governed by national rules. According to Art 20, however, a review of the order for payment can be requested if an objection was not possible due to force majeure or extraordinary circumstances.

It is disputed whether this review procedure supersedes the interruption of the time limit of the 1st COVID-19-JuBG. On the one hand, it is argued that Art 20 of Regulation (EC) No 1896/2006 takes into account situations such as the COVID-19 pandemic in the abstract and that a recourse to national law is not permissible especially for cases of force majeure - which the COVID-19 pandemic can be regarded as. On the other hand, it is argued that the Regulation (EC) No 1896/2006 only regulates the length of the objection period and that any interruptions of this period remain unregulated at European level. Moreover, Art 20 only aims at "fairness in individual cases" and does not contain any regulation of an exceptional situation such as the COVID-19 pandemic.

A solution to this question was not evident to the OGH on the basis of the wording of Art 20 and 26 of the Regulation (EC) No 1896/2006, which is why the ECJ must now decide.

OGH 1 Ob 203/20i (27.11.2020)