In the age of digitisation, communication by electronic means should be driven forward also in the relationship between enterprises and public authorities (administrative authorities and courts). While electronic delivery used to be the exception, it should be the rule in future.

Actually, a statutory obligation to receive documents served electronically by public authorities has applied to enterprises already since 1 December 2018. However, enterprises need not reckon with public authorities delivering documents electronically (with only a few exceptions, like the ‘Web-ERV’ service for electronic legal communication, which is mandatory for attorneys-at-law); this is due to the fact that up to now it has not been practicable for public authorities to deliver documents by electronic means because the ‘subscriber directory’ (Teilnehmerverzeichnis) created for the electronic service of documents will not be used before 1 December 2019. Until 31 December 2019, enterprises may also (still) object to electronic delivery.

As of 1 January 2020, however, subscribing to electronic delivery will be mandatory for enterprises (with few exemptions). So, if enterprises are not yet ready for electronic delivery, they must soon create the necessary pre-conditions and organise their internal processes in a way permitting the receipt and processing of documents delivered by public authorities electronically.

Obligation affecting most enterprises
The obligation to accept service of documents delivered electronically was created already by the Austrian Deregulation Act of 2017 (Deregulierungsgesetz 2017 (Federal Law Gazette I No. 40/2017)) and the related introduction of section 1b of the Austrian E‑Government Act (E‑Government-Gesetz, ‘E-‑GovG’). Due to the wide definition of enterprises (Unternehmen) in section 3(20) Austrian Federal Statistics Act of 2000 (Bundesstatistikgesetz 2000), which is incorporated by reference, this obligation is imposed on generally all enterprises in Austria irrespective of their size (exceptions to be described right away). Apart from companies and partnerships, it also affects natural persons such as sole proprietors, ‘free service contractors’ (freie Dienstnehmer) and self-employed persons (like medical doctors, for instance).

Although the legislative records show that the legislator intends the changes to the E-GovG to result in improving services and lessening the burden on enterprises, a new obligation is imposed on enterprises as of 1 January 2020.

As setting up the electronic mailbox relevant for electronic delivery is free of charge and most enterprises have the necessary IT equipment anyway (if only for everyday e-mail communication), just receiving documents is not associated with costs.

Exemptions from the obligation
From 1 January 2020 onwards, only the following enterprises shall be exempted from receiving documents by way of electronic delivery:

• those that cannot reasonably be expected to subscribe to electronic delivery because they lack the necessary technical equipment (no web-enabled hardware such as PC, laptop computer, tablet, smartphone) or have no internet access,
• those that are not obligated to file advance VAT returns because their revenues come below the threshold value (of currently EUR 30,000.00).

Functioning of electronic delivery
In future, electronic delivery will be effected via a central online mailbox for electronic documents. Material requirements are registration with and establishing access to the so-called Business Service Portal (Unternehmensserviceportal, ‘USP’. As soon as the enterprise has signed on to an electronic delivery service, established access to the USP and set up the electronic (online) mailbox, it can receive documents from public authorities and other enterprises via the free-of-charge electronic mailbox.

When an electronic document arrives, the enterprise will be notified by means of an e-mail or text message. Then it can download, forward, print and archive the document. Enterprises can also record periods during which they are ‘out-of-office’, specify document formats they are able to receive and record encryption certificates which permit the entire contents to be encrypted. Detailed information can be found mainly on the Digital Austria information platform.

Depending on whether proof of service is required, the following delivery systems are eligible for the electronic delivery of documents:

• Electronic delivery services (sections 29 et seq. Austrian Service of Documents Act (Zustellgesetz, ZuStG)) concerning service of documents with and without proof of service
• Electronic legal communication (Elektronischer Rechtsverkehr, ERV) (section 28(2) ZuStg in conjunction with 89a et seq. Court Organisation Act (Gerichtsorganisationsgesetz, GOG); mainly relevant for attorneys-at-law)
• Electronic communication system of a public authority (individual delivery solutions and/or platforms of individual public authorities permitting service of documents without proof of service) (section 37 ZuStG)
• The ‘Finanzonline’ platform (sections 98 et seq. Austrian Fiscal Code (Bundesabgabenordnung, BAO); for documents to be served by the tax authorities)
• E-mail (section 37 ZuStG; only to a limited degree and if no proof of service is required

Electronic delivery services
Currently (as at October 2019), the following electronic delivery services have been admitted:

Admitted electronic delivery service

• Hpc DUAL ZustellsystemeGmbH (admitted by administrative decision (Bescheid) dated 19/02/2017)
• sendhybrid ÖPBD GmbH formerly exthex GmbH (admitted by administrative decision (Bescheid) dated 11/02/2014)
• Österreichische Post AG formerly Online Post Austria GmbH formerly Electronic Bill Presentment and Payment GmbH (admitted by administrative decision (Bescheid) dated 25/06/2010)
• Bundesrechenzentrum GmbH (admitted by administrative decision (Bescheid) dated 03/03/2009)

Right to communication by electronic means
The E-GovG has also introduced a ‘right to communicate by electronic means’, which enterprises may claim as from 1 January 2020; it shall apply with respect to all the matters where the federal state is competent to make laws; these include electronic communication, and service of documents in general. This means that, in future, enterprises can demand that public authorities serve documents electronically. The only exemptions relate to matters which are ‘not suitable’ for being dealt with electronically.

Obligation and possible drawbacks
Although subscribing to the electronic service of documents is mandatory for enterprises, the law does not (yet) provide for administrative penalties to be imposed on enterprises that fail to subscribe to electronic delivery. If the service of documents to an enterprise is not possible by electronic means, the public authority shall serve document(s) by postal delivery. However, the question remains whether the public authority is in fact obligated to serve document(s) by postal delivery. If service by postal delivery is omitted, enterprises will be faced with the risk that decisions by public authorities (like Bescheide issued by administrative authorities) may be regarded as having been served although the enterprise did not actually receive them; this may result in negative consequences for the enterprise.

What enterprises need to do
Enterprises must create the technical environment enabling them to receive documents that are served by electronic delivery. Material steps to be taken in this context are registration with and establishing access to the USP and appointing authorised and responsible persons (USP administrators and authorised recipients of USP mail).

In addition, enterprises must create internal processes which ensure that the delivered documents are retrieved and processed, or forwarded to the competent persons or entities for processing, regularly and in a timely manner.

Summary and practical tips for enterprises
Except for few exemptions, enterprises will be obligated to subscribe to electronic delivery no later than by 1 January 2020.

Exemptions apply only to enterprises

• that cannot reasonably be expected to subscribe to electronic delivery (for lack of a computer, tablet, smartphone etc. or internet access),
• that are not obligated to file advance VAT returns because their revenues come below the threshold value (of currently EUR 30,000.00).    

If a public authority does not effect postal delivery, documents like Bescheide can be served with legal effect without the enterprise becoming aware that a matter has been dealt with, and this may have negative consequences.

Therefore, enterprises should take the following steps as soon as possible:

• Perform their registration with one of the admitted electronic delivery services by 30 November 2019 and the related registration with the USP to be able to receive electronic-delivery documents with proof of service (as from 1 December 2019 registration will be possible via the USP only).
• Appoint USP administrators and authorised recipients of USP mail who can retrieve delivered documents on behalf of the enterprise.
• Set up an e-mail account which is checked daily (this serves for summarised notifications that new documents have been delivered electronically).
• Create internal processes which ensure that the delivered documents are retrieved and processed, or forwarded to the competent persons or entities for processing, regularly and in a timely manner.
• Create internal processes which ensure that documents delivered electronically will be retrieved and processed also if employees are absent or leave the enterprise.