VwGH: Emails That End in Authority’s Spam Are Deemed Delivered

Nov 10, 2023 Benn-Ibler Rechtsanwälte

Appeals sent by email that end up in an authority’s spam folder are also considered delivered, the Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has ruled.

The legal representative of the complainant submitted appeals against several penal orders to the competent municipal authority by email. However, the authority rejected these appeals as being late because they had ‘not arrived at the email address of the authority, i.e., the Department of Administrative Criminal Law.’ The appeals ended up in the authority’s spam quarantine folder because the legal representative’s email provider was on the administrative authority’s spam list.

The regional administrative court took the view that the objections had been sent to the authority in good time. It did not matter in which of the authority’s email folders the objections had been received. Whether the authority had read or noted the emails was also irrelevant.

The VwGH rejected the authority’s appeal against this decision as follows:

The objections were sent to the email address published on the Internet by the authority concerned. It could also not be established that any published technical requirements or organisational restrictions of electronic communication were not complied with.

According to the case law of the VwGH, an email is to be deemed received by the authority if it is received on the server that the authority has designated to receive emails addressed to it and is thus in the authority’s electronic domain.

It is also irrelevant that the employees of the competent department of the local authority did not have direct access to the email, if the requirements and restrictions announced in accordance with Section 13(2) of the Austrian Administrative Proceedings Act (AVG) were met and the email was stored in the electronic disposal area of another subdivision of the authority (here: in the spam quarantine set up for the administrative authority’s Development & IT office).

VwGH Ra 2022/03/0097 (20 June 2023)