Litigation Arbitration & Dispute Resolution EU Directive Actions Guide |
|
Austria |
|
|
(Europe)
Contributors Updated 19 July 2023 |
|
| Representative Action Mechanisms: Does a collective action mechanism already exists in your jurisdiction, and if so, is the Directive implemented as a part of or as a separate mechanism? | Austria has collective action mechanisms only in limited areas (Directive 2009/22/EG, although some of the remedies were in place before). Pursuant to the rules of the Austrian Unfair Competition Act (sec. 14 UWG) certain bodies entrusted with the representation of consumers’ or entrepreneurs’ interests may file claims for cease and desist of unfair commercial practices. Depending on whether consumers’ interests or entrepreneurs’ interests are at stake, different bodies are entitled to bring the action. Equivalent claims are foreseen in the Consumer Protection Act (sec. 28, 29 KSchG). However, these are no collective redress or class actions, at the end of which the individual claimant can ultimately obtain monetary redress. In the absence of a statutory collective redress regime in Austria, legal practice has developed the so-called collective action of the Austrian character. In this course of action, numerous claimants assign their claims to an SPV, which then files the claim in its own name, but in the economic interest of the participants. The Austrian Supreme Court has accepted this type of action and it has since then been used a couple of times. Its main benefit is that it facilitates third-party funding as the overall economic stake is higher and only one funding agreement is needed. Due to certain procedural law deficiencies, many claims of similar nature are still filed as several distinct individual claims. The proponents of class actions have unsuccessfully advocated for legislation introducing an Austrian class action. The representative body of the economy, mainly the Chamber of Commerce, used to push back on such initiatives arguing that it is not necessary, since the Austrian courts accepted the above-mentioned class action of the Austrian character. Only following the enactment of the EU Representative Action Directive, Austria will have to introduce such a regime. The details of the domestic law implementing the Directive are still being discussed among stakeholders. No official draft is available yet and Austria is among the Member States in delay with implementation. |
| Claims which can be brought in a Representative Action: Which claims can be brought? Which redress measures are available other than compensation? | Under the above-mentioned rules of consumer and unfair competition law, only cease and desist claims can be filed by qualified representative bodies. By way of the class action of the Austrian character, any claims can be brought, which the law permits for claims filed by individual parties. This includes claims for compensation, declaratory judgment, contract annulment or termination, cease and desist, claims for removal, claims for accounting, etc. The enforcement of a judgment works according to the general rules. I.e. the claiming representative body can enforce the cease and desist judgment and the SPV can enforce the judgment obtained in a class action of the Austrian character. |
| Costs: To what extent must the unsuccessful party pay the costs of the proceedings, must they pay all costs or only a part of them, and if so, which part? | Friday Test |
| Transitional Law: Are there any peculiarities regarding national transitional provisions in relation to Article 22? | Friday Test |
| Opt-in vs opt-out: How are opt-in/opt-out mechanisms regulated (in particular, whether in the context of an order for redress – both domestic and cross-border – claims are permitted on an opt-in or an opt-out basis)? | There are currently no specific rules in place. By way of general civil law, each claimant, who wants to participate in a class action of the Austrian character, needs to individually agree to assign his claim. Besides, the question needs review, as soon as the Austrian draft law is available. Austrian scholars expect that the legislator will only provide for an opt-in mechanism for collective actions. |
| Qualified Entities (QEs): What criteria apply to the designation of QEs, with special regard to the designation of QEs for the purpose of bringing domestic representative actions? | Friday Test. |
| Class Criteria/Certification: What is the class criteria/certification stage applicable to representative actions, including provisions, if any, that give substance to the requirement “to dismiss manifestly unfounded cases at the earliest possible... | Needs review, as soon as the Austrian draft law is available. |
| Third-Party Litigation Funding: Please describe how third-party funding is regulated, with special regard to funding of representative actions for redress measures. Can the court order the representative organization to disclose the funding agreem... | Generally, third-party funding is offered by various service providers in Austria. As of today, the court can order the claimants to present the funding agreement only subject to the quite limited rules provided for by civil procedural law, which govern the presentation of documents by the opponent. They would typically not allow for such disclosure. Any changes and amendments remain to be seen, as soon as the draft law implementing the collective redress directive is available. |
| Redress Settlements: How are settlements regulated, with special regard to “rules according to which individual consumers concerned by the action and by the subsequent settlement are given the possibility to accept or to refuse to be bound by sett... | There are no specific rules in place for collective actions. Needs review, as soon as the Austrian draft law is available. |
| Public Information/Database of Representative Actions: How are the publication of information and database of representative actions regulated, with special regard to any requirement of judicial vetting (e.g. court-approved description of the acti... | Needs review, as soon as the Austrian draft law is available. |
| Discovery/Disclosure: Are there any special discovery/disclosure rules applicable to representative actions, or collective (non-unitary) actions in general? If there are no such rules either, please briefly refer to the general discovery/disclosur... | Needs review, as soon as the Austrian draft law is available. There are no specific disclosure rules available for class actions of the Austrian character. In cartel damage claims, which are repeatedly brought as some sort of collective action, the claimant can request that the defendant or a third party disclose evidence in their possession, if this is appropriate in order to allow the claimants to make their case (sec. 37j KartG; implementing Directive 2014/104/EU). General civil procedural law only permits the disclosure of evidence in the hands of the opponent subject to limited rules. Austrian law does not know discovery proceedings. The claimant would have to describe the desired piece of evidence very precisely; otherwise, the request would be considered a fishing expedition and not granted. Further, additional requirements must be met in order for such a request to be successful. In a nutshell, these rules make it hardly amenable as an effective means for a claimant to obtain evidence. Only in the context of criminal proceedings, damaged parties have wide means to obtain file access. Therefore, claimants, who do not have the evidence in their hands, get much better chances to make their case, when the claim has a criminal law angle. |
| Cross-Border Actions: Are there any procedural mechanisms and other requirements for cross-border representative actions? | Needs review, as soon as the Austrian draft law is available. |
| Cy près Awards: Are there any rules “on the destination of any outstanding redress funds that were not recovered within the established time limits”? | Needs review, as soon as the Austrian draft law is available. |
| Other: Please provide any further comment that you deem worthy of note. | Although the implementing law should enter into force by 25 June 2023, no reliable information is currently available as to when the law will be enacted. According to public media information the Ministry of Justice only stated in January 2023 that a draft law does exist and the political stakeholders are currently getting aligned on it. |
Litigation Arbitration & Dispute Resolution EU Directive Actions Guide
Austria
(Europe)Contributors
Updated 19 July 2023Austria has collective action mechanisms only in limited areas (Directive 2009/22/EG, although some of the remedies were in place before). Pursuant to the rules of the Austrian Unfair Competition Act (sec. 14 UWG) certain bodies entrusted with the representation of consumers’ or entrepreneurs’ interests may file claims for cease and desist of unfair commercial practices. Depending on whether consumers’ interests or entrepreneurs’ interests are at stake, different bodies are entitled to bring the action. Equivalent claims are foreseen in the Consumer Protection Act (sec. 28, 29 KSchG). However, these are no collective redress or class actions, at the end of which the individual claimant can ultimately obtain monetary redress.
In the absence of a statutory collective redress regime in Austria, legal practice has developed the so-called collective action of the Austrian character. In this course of action, numerous claimants assign their claims to an SPV, which then files the claim in its own name, but in the economic interest of the participants. The Austrian Supreme Court has accepted this type of action and it has since then been used a couple of times. Its main benefit is that it facilitates third-party funding as the overall economic stake is higher and only one funding agreement is needed. Due to certain procedural law deficiencies, many claims of similar nature are still filed as several distinct individual claims.
The proponents of class actions have unsuccessfully advocated for legislation introducing an Austrian class action. The representative body of the economy, mainly the Chamber of Commerce, used to push back on such initiatives arguing that it is not necessary, since the Austrian courts accepted the above-mentioned class action of the Austrian character.
Only following the enactment of the EU Representative Action Directive, Austria will have to introduce such a regime. The details of the domestic law implementing the Directive are still being discussed among stakeholders. No official draft is available yet and Austria is among the Member States in delay with implementation.
Under the above-mentioned rules of consumer and unfair competition law, only cease and desist claims can be filed by qualified representative bodies.
By way of the class action of the Austrian character, any claims can be brought, which the law permits for claims filed by individual parties. This includes claims for compensation, declaratory judgment, contract annulment or termination, cease and desist, claims for removal, claims for accounting, etc.
The enforcement of a judgment works according to the general rules. I.e. the claiming representative body can enforce the cease and desist judgment and the SPV can enforce the judgment obtained in a class action of the Austrian character.
Friday Test
Friday Test
There are currently no specific rules in place. By way of general civil law, each claimant, who wants to participate in a class action of the Austrian character, needs to individually agree to assign his claim. Besides, the question needs review, as soon as the Austrian draft law is available. Austrian scholars expect that the legislator will only provide for an opt-in mechanism for collective actions.
Friday Test.
Needs review, as soon as the Austrian draft law is available.
Generally, third-party funding is offered by various service providers in Austria. As of today, the court can order the claimants to present the funding agreement only subject to the quite limited rules provided for by civil procedural law, which govern the presentation of documents by the opponent. They would typically not allow for such disclosure. Any changes and amendments remain to be seen, as soon as the draft law implementing the collective redress directive is available.
There are no specific rules in place for collective actions. Needs review, as soon as the Austrian draft law is available.
Needs review, as soon as the Austrian draft law is available.
Needs review, as soon as the Austrian draft law is available.
There are no specific disclosure rules available for class actions of the Austrian character. In cartel damage claims, which are repeatedly brought as some sort of collective action, the claimant can request that the defendant or a third party disclose evidence in their possession, if this is appropriate in order to allow the claimants to make their case (sec. 37j KartG; implementing Directive 2014/104/EU).
General civil procedural law only permits the disclosure of evidence in the hands of the opponent subject to limited rules. Austrian law does not know discovery proceedings. The claimant would have to describe the desired piece of evidence very precisely; otherwise, the request would be considered a fishing expedition and not granted. Further, additional requirements must be met in order for such a request to be successful. In a nutshell, these rules make it hardly amenable as an effective means for a claimant to obtain evidence.
Only in the context of criminal proceedings, damaged parties have wide means to obtain file access. Therefore, claimants, who do not have the evidence in their hands, get much better chances to make their case, when the claim has a criminal law angle.
Needs review, as soon as the Austrian draft law is available.
Needs review, as soon as the Austrian draft law is available.
Although the implementing law should enter into force by 25 June 2023, no reliable information is currently available as to when the law will be enacted. According to public media information the Ministry of Justice only stated in January 2023 that a draft law does exist and the political stakeholders are currently getting aligned on it.