Bailiffs in Austria

Bailiffs in Austria

Professional Activities and Legal Framework

The institution of Gerichtsvollzieher in Austria is a court matter. Gerichtsvollzieher are considered to be public civil servants and they do not act as an independent profession.

Functions and powers of the Gerichtsvollzieher

Activities of enforcement, which are not reserved for judge or judicial officials (Rechtsfleger) are performed by enforcement officials who have to follow the assignments issued by the Court (§ 24 section 1 EO). Incumbent upon the Gerichtsvollzieher is, most of all, the actual enforcement of foreclosure, but numerous other powers befit him too, the enforcement of execution on mobile things in particular is to a great extent in the hand of the Gerichtsvollzieher.

Duties

The official duties of the Gerichtsvollzieher, who is a civil servant are regulated in the Act regulating the service of civil servants (BDG). Apart from the “purely official” obligation to attend to his tasks loyally, conscientiously and impartially, observing the system of laws in its current version, the civil servant has to take care that the confidence which the general public has in the objective performance of his official tasks is being maintained. Violations of official duties can be punished under disciplinary law. The BDG also regulates the obligation to maintain official secrecy and it contains provisions on official titles and the titles during employment. For Gerichtsvollzieher who are not civil servants, the Act on contract officials (Vertragsbedienstetengesetz) lays down the official duties. There too a regulation on the maintenance of the official secret exists. Official titles do not exist in the cases of contract officials.

Powers

The Gerichtsvollzieher is authorized, as far as this is required for the purpose of execution, to search the premises of the person affected , his containers and – if necessary, of course with the required respect for the person – even the clothing worn by the person affected. He may arrange for the opening of locked doors to house, flat and rooms as well as to locked containers regardless of minor damage. However, doors to house and flat may be opened through a change of lock only if the key for the new lock can be obtained at any time (by the person affected) – e.g. from a neighbour (but this is not applicable in the case of execution of eviction). If in the course of these activities of enforcement neither the person affected is present nor an adult person belonging to his family or appointed by him for the care of his premises, then two trustworthy adult persons have to be enlisted as witnesses during enforcement. Persons who disturb actions of execution or behave in an inappropriate way can be removed by the Gerichtsvollzieher. The Gerichtsvollzieher himself does not exert physical violence, he rather may enlist immediately, in order to remove resistance, the support of organs of security (§ 26 section 2 EO).
Payment

The Gerichtsvollzieher is entitled to receive payments and other services which had to be compelled through foreclosure, to effectively issue receipts for the received, and to give to the person owing the duty, if he through his service has fulfilled the obligation, the corresponding deeds of debt. The creditor may also arrange that the giving to the person affected of a deed, a sum of money or another thing, which is incumbent upon him as a return service, be done in a legally effective way by the Gerichtsvollzieher (§ 25 section 2 EO). The enforcement organs are also entitled to receive cheques as payment (§ 25 section 3 EO, § 253 a section 2 EO).
The taking away of money by the Gerichtsvollzieher counts as payment by the person affected (§ 261 section 1 EO), if the money is immediately given to the creditor who instigates recovery, otherwise the giving of money to the creditor counts as payment. Through most recent legislation the function of collection by the Gerichtsvollzieher in the process of execution on mobile things in particular has been substantially raised in status.
Other tasks

The tasks which are in the context of the individual types of execution assigned to the Gerichtsvollzieher, embrace in particular:

The performance of execution on mobile things (§ 253 EO), seizure and exploitation of mobile things
The reception of the register of assets (in which the person affected has to inform comprehensively about the situation of his assets), if the execution of mobile things has yielded no success (§§ 47 section 2, no. 1 EO, 253 a EO)
The handing over of real estate to the administrator in enforcement (§ 99 section 2 EO)
The performance of the execution of eviction (Delogierung) according to § 349 EO
The performance of arrest in the case of activities breaching a duty of toleration or omission (§§ 355, 360 section 2 EO) and
The exploitation of a claim based on a savings deed (§ 319 a EO), but not its enforcement in the courts

It is however necessary to point out in this context that at the time being a project at the Federal Ministry of Justice deals with possible increases of efficiency in the area of the procedure of execution on mobile things and that in this process the activity of the Gerichtsvollzieher too is being subjected to a thorough review.

Access to the profession

Gerichtsvollzieher are officials of the intermediate service, they need to have the mandatory [minimum] school degree. Intermediate school certificate or university degree are not required. After six years of uninterrupted or at least predominant employment as Gerichtsvollzieher and after completion of the professional exam they can become officials of the professional service. The objects of the professional exam are, inter alia, the provisions of the code of execution [Exekutionsordnung, EO] and the Enforcement and Road Toll Act [Vollzugs- und WegegebĂŒhrengesetz].

Other entry requirements include:

personal suitability and respectability
Austrian citizenship
sufficient demand.

The provisions of training are currently being revised and amended, inter alia to take account of the increased use of information technology.

Mobility

Bailliffs are covered by the general Directives on mutual recognition of diplomas, unless they can show that their activities are exempt under the Treaty exceptions to free movement to be found in Articles 39 (4) or 45 EC. This is unlikely as the European Commission reportedly (Law Society Gazette) has recently decided (November 2000) that notaries are not to be considered as immune from the effects of the free movement articles of the Treaty.

Legal Education

Legal Training

Mandatory training is organized and carried out in a decentralized way, by the subordinate service authorities (personnel departments) that is, the presidents of the higher regional courts. Voluntary measures of post basic training (e.g., nationwide conferences of all Gerichtsvollzieher) are being organized by the Federal Ministry of Justice in collaboration with the trade unions of public officials.

Governing Bodies

The supervision of Gerichtsvollzieher is incumbent upon the judicial officers (Rechtspfleger) working in matters of execution, the manager of the administrative office (Vorsteher der GeschĂ€ftsstelle), the judge responsible for matters of execution (der fĂŒr Exekutionssachen zustĂ€ndige Richter) as well as, in the last instance, the manager of the district court (Vorsteher des Bezirksgerichts). Superior organs of service supervision are the president of the regional court (PrĂ€sident des Landesgerichtes) concerned and the president of the higher regional court (PrĂ€sident des Oberlandesgerichtes) concerned. The Federal Ministry of Justice (Bundesministerium der Justiz) is the supreme organ of service supervision for all court servants – therefore for the Gerichtsvollzieher too.

· Oberlandesgericht [Higher Regional Court] Wien,
· Oberlandesgericht [Higher Regional Court] Graz,
· Oberlandesgericht [Higher Regional Court] Innsbruck,
· Oberlandesgericht [Higher Regional Court] Linz, 4020 Linz,
· Gewerkschaft öffentlicher Dienst [Trade Union for the public service], 1010 Wien,

See discipline below.

Discipline

Gerichtsvollzieher, who are civil servants, are subject to the disciplinary law of federal civil servants, which is regulated in the Act regulating the service of civil servants ( Beamtendienstrechtsgesetz, BDG). The service authorities, the disciplinary commission (at the Federal Ministry of Justice [1070 Vienna, Museumstr. 7, Telephone 01/52 152-0]), the superior disciplinary commission (at the Federal Ministry for Public Performance and Sport [1010 Vienna, Ballhausplatz 2, Telephone 01/53 115-0]) and the commission of appeals (likewise at the Federal Ministry for Public Performance and Sport) are disciplinary authorities. The members of the disciplinary commission, the superior disciplinary commission and the commission of appeals are in the carrying out of their office, responsible to themselves and independent. The disciplinary attorney represents the service intersts in disciplinary proceedings.

Relevant Legislation

Author: J Lonbay (A), 2008

Other Legal Professionals

Lawyers

There is an entry about lawyers in Austriain this European legal encyclopedia. Information about lawyers in Europe countries is provided here.

Notaries

There is an entry about notaries in Austria in this European legal encyclopedia. Information about notaries in Europe is provided here.

Bailiffs in some other European Countries

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