AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
the price paid. As a result of such a decision, consum- ers directly benefit from the redress specified in the decision without having to file a separate lawsuit. (For more on qualified entities, see 1.3 Implementation of the EU Collective Redress Regime ). Sample Lawsuits Section 502, paragraph 5, line 3 of the Code on Civil Procedure provides for sample lawsuits, with which certain associations (the same entitled to representa- tive actions) can file a case on behalf of an individual and – irrespective of the amount in dispute – bring it before the Supreme Court. The prerequisite is that the individual has assigned their claim to the association. While the judgment only has legal effect regarding the specific case, the lower courts will generally observe the decision of the Supreme Court as a “precedent”. Austrian-Type Mass Claims To deal with mass claims, legal practice established “Austrian-type mass claims”. The aim was to create a functional equivalent to class actions. The Austrian-type mass claim is based on the concept that claims may be assigned for collection ( Inkassoz- ession ) and that a claimant may file a single lawsuit to deal with multiple claims it has against the defendant (Section 227 of the Code on Civil Procedure). Thus, the entity that has been assigned claims from different individuals can raise all these individual claims (as a bundle of claims) against a single defendant with one lawsuit in the same proceeding. However, the entity is not regarded as consumer. Potential claimants who assign their rights to this entity, lose the privileges as consumer. The bundling of many claims is more cost-efficient than individual lawsuits because the costs are pro- portionately lower if the amount in dispute is higher. Moreover, a higher amount in dispute facilitates third- party financing (see 3.9 Funding and Costs ). Joinder of Individual Proceedings 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. However, for a large number of claimants (several
thousands) this tool is simply impractical. Therefore, in practice, the assignment of claims to one single claimant, who then proceeds to file the lawsuit, is typi- cally the preferred option. Finally, a court before which several similar, separate 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). The effect of the joinder of several legal disputes consists solely of the several cases being heard together and, if the joinder is not rescinded, decided together. However, the two proceedings retain their independ- ence in substance – ie, the setting aside of the judg- ment regarding one claim by the appeal court does not mean a setting aside with regard to the other (joined) claim. 2.2 Scope of Areas of Law to Which the Legislation Applies Representative Actions Under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act, the right to bring a representative action is available to certain associations, for example the Chamber of Commerce, the Chamber of Labour, the Federation of Trade Unions, the Chamber of Agriculture and the Association for Consumer Information (Section 29 of the Consumer Protection Act, and Section 14 of the Unfair Competition Act). In practice, mainly the Asso- ciation for Consumer Information and the Chamber of Labour have made use of this tool. By means of a representative action, the following claims can be asserted: • claims for injunctive relief against the use of unlaw- ful general terms and conditions; • claims for injunctive relief against certain unlaw- ful business practices in dealings with consumers; and • claims for the removal of a situation that is contrary to fair competition – eg, the removal of unlawful general terms and conditions from business prem- ises or the sending of letters to inform affected
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