The procedure before the courts
Table of contents
The procedure in the court of first instance
In contrast to other court procedures, insured persons as plaintiffs in social law procedures do not run the risk of court fees (section 77 ASGG). The expenses shall generally be assumed by the social security providers.
Which court has jurisdiction?
To contest the decision (i.e., the ruling) of the social security provider, the insured must file a suit against the ruling of the social security provider before the regional courts acting as "labor and social courts" (in Vienna: Labor and Social Court). The local competent court is the court of the district where the insured (i.e., the plaintiff) has his/her residence or customary abode. There are special rules on jurisdiction that apply to the insured person’s residence or customary abode in certain countries (e.g., Germany, Liechtenstein). In these cases the plaintiff also has choices in terms of the competent court.
If there is neither a residence nor a customary abode in Austria or in one of these countries, jurisdiction shall then be based on the domicile of the social security provider, i.e., the domicile of the defendant (section 7 ASGG).
When must the suit be filed?
The suit (section 82 ASGG) must be filed within four weeks of the issuing of the ruling (section 67 ASGG). It can either be introduced in court or brought before the social security provider acting as the defendant.
If the suit is brought forth in a timely fashion, the ruling of the insurance provider in the context of the claim shall cease to have effect (section 71 Abs. 1 ASGG). This means that the court will make a new ruling on the request, at least as far as the contested points are concerned! Meanwhile, the insurance provider must still continue to render any services in the contested ruling to which it has already agreed until the legally binding conclusion of the procedure (section 71 Abs. 2 ASGG).
Suit may also be filed if the social security provider was in default and has not ruled on the health insurance benefits issue within a time period of three months (motion for default). The Parties do not have to be represented before the court of first instance (section 39(3) ASGG). The procedure shall be conducted in accordance with the Civil Process Regulation (ZPO) and the Labor and Social Court Act (ASGG).
Conclusion of the procedure
The procedure concludes with a court judgment or, in civil process matters, a court order. The procedure may also be resolved at any time through a court settlement.
The procedure in the court of second instance
Both the insured and the social security provider may appeal judgments of the court of first instance before the competent higher regional court. Recourse against court orders may be brought before the court that issued the order in dispute.
The appeal must be made within four weeks after the pronouncement of the judgment, and recourse must be brought within fourteen days or four weeks, depending on the matter. The procedure shall be conducted in accordance with the Civil Process Regulation (ZPO) and the Labor and Social Court Act (ASGG). The Parties must be represented by qualified individuals (lawyer, functionaries of interest group organizations) (section 40 ASGG).
The higher regional court will decide with a judgment or an order.
Within four weeks an appeal may be lodged against the judgment of the upper regional court before the Austrian Supreme Court, but only within certain limits. An order of the higher regional court may be contested with recourse or order granting leave to appeal within two or four weeks, respectively.
The procedure in the court of third instance
The Austrian Supreme Court also rules in the form of a judgment or an order. The procedure shall be conducted in accordance with the Civil Process Regulation (ZPO). There are no further legal measures that can be taken against the decision of the Austrian Supreme Court.