AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
1. Policy Development of Collective Redress/Class Action Mechanisms 1.1 History and Policy Drivers of the Legislative Regime New Collective Redress for Consumers Historically, Austrian law has not provided for class actions. However, in July 2024, Austria implemented the EU Directive 2020/1828 on representative actions for the protection of the collective interests of con- sumers (the “EU Directive” or the “Directive”). Outside of the scope of this new regime, the previous ways to bring collective actions remain intact. Limited Instruments of Collective Redress So Far Until July 2024, there were only very limited opportuni- ties for collective redress in Austria. Prior to the implementation of Directive (EU) 2020/1828, procedural law only allowed certain asso- ciations to bring collective interest litigation through representative actions and sample lawsuits ( Verband- sklagen according to Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competi- tion Act; Musterklagen according to Section 502, para- graph 5, line 3 of the Code on Civil Procedure). Nevertheless, Austrian legal practice has been facing the phenomenon of mass claims – ie, many similar individual claims for damages based on the same damaging event against the same defendant. Con- sumer protection lawyers and associations reacted to this phenomenon by developing a tool for “bundling” individual claims based on then-existing procedural and substantive rules (the “Austrian-type mass claim”, Sammelklage österreichischer Prägung ). Moreover, under specific circumstances, several similar actions arising out of the same set of facts can be brought against the same defendant in one single lawsuit. Finally, a court before which several separate, yet sim- ilar actions against the same defendant are pending, has the possibility to join these proceedings if joining them promotes procedural efficiency (Section 187 of the Code on Civil Procedure).
Latest Developments In the past, initiatives to strengthen collective redress were concocted from time to time, but these have fiz- zled out, without their giving rise to viable legislative proposals. In recent years, springing from the mass individual investor lawsuits in the wake of the finan- cial crisis and the Volkswagen “Dieselgate” cases, there have been demands for collective legal protec- tion. In the wake of the COVID-19 pandemic, interna- tional attention was attracted by the lawsuits filed by numerous tourists who were infected with COVID-19 in the Tyrolean ski resort of Ischgl in February/March 2020. They have sued the Republic of Austria for the allegedly faulty information and the allegedly delayed reaction of the authorities in the spread of COVID-19 at the beginning of the pandemic. Nevertheless, it was only the pressure from EU leg- islation that led Austria to finally implement a regime of collective redress. On 18 July 2024, the Act on Qualified Entities for Collective Redress (the “Qualified Entities Act”), along with amendments to the Austrian Code on Civil Procedure, the Consumer Protection Act, the Court Fees’ Act and the Lawyer’s Fees Act entered into force, providing significant changes to collective redress under Austrian law (see 4.1 Policy Development and 4.2 Legislative Reform ). However, Austria decided to restrict the applicability to consum- ers, only. For all other claims, as well as in parallel for consumers, the old regime is still available. 1.2 Basis for the Legislative Regime, Including Analogous International Laws Representative Actions Austrian representative actions are transpositions of EU directives into Austrian national law (see 1.3 Imple- mentation of the EU Collective Redress Regime ). Sample Lawsuits The sample lawsuit has been noted by some law professors to be comparable to the German “sample declaratory claim” (Section 606 of the German Code of Civil Procedure). While similarities in the develop- ments of such a legal instrument have been noted in both the Austrian and German legal systems, there is no indication that the Austrian legislature set out to explicitly model their instruments upon Germany’s or other country’s regimes.
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