Managing director's liability is a treacherous matter: Since the company cannot be held liable under administrative law, according to section 9 of the Administrative Penalty Act (VStG) the bodies appointed to represent the company externally are liable for administrative offences committed by the company. This liability therefore primarily affects the managing directors. In the case at hand, the district authority served a penalty notice on the former managing director of the foreign corporation and imposed a fine on her totalling more than EUR 20,000.00 for offences under the Labour Contract Amendment Act (AVRAG).
Notice must contain information on right of appeal
Such penalty decisions by administrative authorities may be appealed to the administrative court (Bescheidbeschwerde) pursuant to Art 130 para 1 subpara 1 and 132 para 1 subpara 1 of the Federal Constitution (B-VG), which may be filed within one month of the notification of the decision. Pursuant to section 58 (1) of the General Administrative Procedure Act (AVG), every decision must contain information on the right of appeal. Pursuant to section 61 (1) AVG, the information on the right of appeal must state,
- whether an appeal may be lodged against the decision,
- if the answer is in the affirmative: what the content and form of this appeal must be and
- with which authority and
- the time limit within which it is to be lodged.
However, the penalty notice served on the defendant did not contain any instructions on how to appeal, so that the defendant, who was no longer the managing director of the company at the time of the administrative offences, was subsequently unable to appeal. Only after consulting a lawyer did it turn out that she would have had the possibility to file an appeal, but had missed the deadline for filing an appeal because the administrative authority had not informed her of this.
Restitutio in integrum
If a party in administrative proceedings misses a time limit for appeal because the decision does not contain any information on the right of appeal, no time limit for appeal or incorrectly states that no appeal is admissible, reinstatement into the previous state is to be granted upon application of this party pursuant to section 71 para 1 subpara 2 AVG in conjunction with section 24 VStG. Pursuant to section 71 (2) AVG, this application must be filed within two weeks after the party has become aware of the admissibility of the appeal. At the same time, the omitted procedural act (appeal to the administrative court) must be made up for.
Attorney-at-law Balazs Esztegar represented the former managing director in the proceedings for restitutio in integrum and stated that
the complainant would have filed the admissible appeal in due time if the contested penalty decision had contained an appeal instruction in conformity with the law.
The administrative authority granted the application for restitutio in integrum against the failure to observe the time limit for appeal, so that the administrative court will subsequently deal with the substance of the complaint.