Concept and definition of excessive fee collection
Die Excessive fee collection is an offense enshrined in Austrian criminal law, which penalizes the unlawful demand or acceptance of excessive fees for a service. In particular, in the administrative and public sector, excessive fee collection constitutes a criminal offense aimed at protecting legal certainty in the fee system and preventing abuse of office.
According to the Austrian Criminal Code (§ 304 StGB), excessive fee collection occurs when officials, other public employees, or persons appointed to perform official duties demand or accept from a party fees, charges, costs, or other pecuniary benefits that are assessed too high.
Legal basis and regulation
Austrian Criminal Code (StGB)
The criminal provision is primarily regulated in § 304 StGB “Excessive Fee Collection”. The regulation reads in excerpt:
“An officeholder who accepts from a party, for the performance of an official act, fees, public charges, or costs at a level exceeding the legal limit, in contravention of the regulations, shall be punished with imprisonment of up to three years.”
Reference to other legal norms
Excessive fee collection is closely linked to the concept of abuse of office (§ 302 StGB) as well as to the offense of accepting undue advantages (§ 305 StGB). It is a specific case of official misconduct, in which unlawful financial benefits are obtained.
Additional regulations regarding official fees and their unlawful collection can also be found in other administrative laws (e.g., fee laws, administrative procedure laws).
Elements of the offense and requirements
Objective elements of the offense
The following objective elements must be met for the offense of excessive fee collection:
- Status as a public official: The acting person must be appointed to perform official duties (e.g., official, public law employee).
- Official act: The fee must be levied in connection with an official act.
- Demand or acceptance: It is sufficient to unlawfully demand or actually accept a payment that is too high.
- Excessive amount: The demanded amount exceeds the legally permitted limit or is entirely unjustified.
Subjective elements of the offense
For criminal liability, at least conditional intent is required. The perpetrator must recognize and accept the possibility that the demanded amount exceeds the legally permissible limit.
Distinction from other offenses
Excessive fee collection must be differentiated from other offenses related to abuse of office:
- Abuse of office (§ 302 StGB): A more general offense, also covering other wrongful uses of official power, regardless of fee demands.
- Bribery and acceptance of advantages (§§ 304, 305 StGB): Require an unlawful advantage that is accepted in connection with the performance of official duties.
- Fraud (§ 146 StGB): Involves deception about facts for the purpose of financial harm, irrespective of official acts.
Legal consequences
Criminal consequences
If the offense of excessive fee collection is committed, a prison sentence of up to three years may be imposed. In particularly severe cases, a higher penalty may apply, especially if the conduct is repeated or systematic.
Disciplinary sanctions
In addition to criminal consequences, disciplinary measures may be imposed on public employees, such as suspension, salary reduction, or dismissal from public service.
Administrative consequences
Illegally collected fees can be reclaimed (refunded) under administrative regulations. Victims of such excessive fee collection are entitled to a refund of the excess amount paid and, if applicable, to compensation for damages.
Procedural law and prosecution
Investigation and criminal proceedings
Excessive fee collection falls under the jurisdiction of the courts and is usually prosecuted ex officio. Investigations are conducted by the public prosecutor’s office, often prompted by complaints from affected persons or internal supervisory bodies.
Burden of proof and obligations to provide evidence
Criminal liability for excessive fee collection requires precise determination of the extent to which the statutory fee limit was exceeded. Documentation requirements regarding the collection of fees may serve as evidence.
Excessive fee collection in civil law
In private law, the concept of excessive fee collection is less pronounced, as freedom of contract applies. Excessive demands may be prohibited under the General Civil Code (ABGB) as immoral conduct or usury (§ 879 ABGB, § 879a ABGB). This may result in a claim for restitution against unjustly enriched parties.
Significance and protective function
The offense of excessive fee collection makes a significant contribution to the integrity and reliability of public administration. It protects citizens against arbitrary and unlawful interference with their financial interests by officeholders, upholds the rule of law, and preserves confidence in public administration and justice.
Practical examples and case law
Typical case scenarios
- Unjustified demand for excessive processing fees by administrative offices
- Acceptance of excess amounts without formal legal basis
- Demand for fees for official acts not performed
Case law
Austrian courts regularly confirm the strict application of the provisions on excessive fee collection and recognize the special need for protection of persons affected by it.
Literature and further sources
For more detailed information on excessive fee collection, it is recommended to consult relevant specialist literature in criminal and administrative law as well as the applicable legal texts and commentaries on §§ 302 ff. StGB.
Note: Excessive fee collection is a specifically Austrian legal term. Comparable regulations exist in German and other legal systems, but there is no identical wording.
Frequently asked questions
What are the legal consequences of excessive fee collection?
If excessive fee collection is carried out by a Rechtsanwalt or another person authorized to charge fees, this can have far-reaching legal consequences. According to § 16 Rechtsanwaltsordnung (RAO) and the relevant provisions in the fee schedule, applicable fees must be charged accurately and transparently. Exceeding the legally permissible fees can invalidate the respective fee agreement, so that the client is only obliged to pay the correct fee. In addition, the Rechtsanwalt may face professional consequences such as disciplinary proceedings, up to and including a professional ban. In the context of civil law, excessive fee collection entitles the client to reimbursement claims before civil courts and, if applicable, also to claims for damages, provided that further disadvantages have arisen due to the excessive charge. Additionally, in the event of intentional excessive charging, a criminal offense, such as fraud, may also be present.
When does excessive fee collection exist from a legal perspective?
From a legal point of view, excessive fee collection occurs when the Rechtsanwalt demands or receives more from the client than is due in that specific case by law, fee agreement, or court decision. This is determined objectively, considering the relevant fee guidelines, the agreed scope of services, and the services actually performed. Flat-rate fees or special agreements must also be reviewed for legality and appropriateness. If the statutory or contractually owed fee is exceeded without corresponding consideration, this legally constitutes excessive fee collection, regardless of any possible consent by the client, where such consent would contravene mandatory legal provisions.
What rights do clients have if they suspect excessive fee collection?
Clients who suspect excessive fee collection have various legal options. They can first request the release of a detailed invoice to review the justification for the billed items. In case of dispute, a client may request a fee review by the competent bar association or arbitration board of the respective federal state. If there is suspicion of intentional or systematic overcharging, a complaint or professional disciplinary action may also be initiated against the Rechtsanwalt. Under civil law, there is a right to reimbursement of any excess amount paid and, if applicable, to compensation. These legal remedies are usually independent and may be pursued in parallel.
Are there deadlines for reclaiming excess fees paid?
The general civil limitation periods apply to the assertion of reimbursement claims for excessive fee collection. Under § 195 BGB, the regular limitation period is three years, beginning at the end of the year in which the client became aware of, or without gross negligence should have become aware of, the excessive fee collection. In exceptional cases, such as fraudulent conduct by the Rechtsanwalt, the limitation period may be extended to up to ten years (§ 199 BGB). If claims are not made in due time, they are permanently excluded. It is therefore advisable to seek legal advice as soon as possible in case of suspicion and to assert any claims without delay.
How is the appropriateness of the fee legally reviewed?
The appropriateness of fees for legal services is reviewed based on statutory provisions, such as the Federal Lawyers’ Fees Act (BRAGO) or the Lawyers’ Remuneration Act (RVG) as well as the applicable fee agreements and relevant case law. The type, scope, and difficulty of the legal service, the time spent, and the significance of the matter for the client are decisive. In the event of a dispute about the fee amount, an expert opinion may be obtained or a fee review requested from the bar association. The court will review the appropriateness of the fees considering all the circumstances of the individual case, including customary rates and, where relevant, industry-typical compensation structures.
What role do the bar associations play in cases of excessive fee collection?
The regional bar associations play a central role in the review and sanctioning of excessive fee collection. They are responsible for extrajudicial reviews of fee statements and, upon application by the client, can initiate arbitration proceedings. As part of their professional supervisory duties, they investigate tips and complaints about excessive fee collection and can, depending on the circumstances, impose disciplinary measures or refer the case to the competent public prosecutor’s office. In addition, the bar associations act in an advisory, clarifying, and mediating role between Rechtsanwälten and clients to resolve conflicts out of court whenever possible.
What duties do lawyers have in connection with excessive fee collection?
Lawyers are obliged to account for their fees transparently, comprehensibly, and in accordance with the law. They have a comprehensive duty to inform and clarify, particularly regarding the anticipated costs and fees. Any excessive fee collection constitutes a violation of professional regulations and can, in addition to the aforementioned legal consequences, also give rise to claims for damages. Lawyers are also required to return any fees received to which they are not entitled to the client without delay. The obligation to issue proper invoices also entails clearly stating all services rendered and costs incurred. Violations of these duties are strictly sanctioned under professional law.
