AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
customers that certain clauses of the terms and conditions do not apply. However, under Sections 28 ff of the Consumer Pro- tection Act and Section 14 of the Unfair Competition Act no claims for damages can be asserted by means of a representative action. In contrast to this and as a significant change in Aus- trian civil procedure law, the new regime on collective redress implemented in July 2024 provides for claims not only for injunctive relief but also for redress. Such actions can only be brought by the qualified entities. The Austrian Federal Economic Chamber, the Fed- eral Chamber of Labour for Domestic and Cross-Bor- der Representative Actions, as well as the Austrian Chamber of Agricultural Workers, the Presidential Conference of the Austrian Chambers of Agriculture, the Austrian Trade Union Federation, the Association for Consumer Information and the Austrian Seniors’ Council for Domestic Representative Actions are legally recognised as qualified entities. In addition, legal entities that meet the special requirements can be recognised as qualified entities by the Federal Car- tel Prosecutor. Moreover, organisations that are rec- ognised as qualified entities in another member state of the European Union and that are entered in a list to be published by the European Commission are also entitled to bring actions before Austrian courts. With an action for redress, a qualified entity asserts claims directly for consumers in a single procedure. The judgment is therefore directly effective for (or against) the consumers involved in the proceedings. Sample Lawsuits A sample lawsuit can be brought by the same asso- ciations as the representative actions (Section 502, paragraph 5, line 3 of the Code on Civil Procedure, and Section 29 of the Consumer Protection Act). Since the sample lawsuit is based on assignment, only those claims can be asserted that can be assigned (Austrian Supreme Court 8 Ob 123/09k). Typical civil
law actions, such as for damages or warranty, can usually be assigned. A contractually agreed prohi- bition on assignment that prevents an assignment of consumers to an association for the purpose of legal action under Section 29 of the Consumer Pro- tection Act is considered severely disadvantageous and immoral and, therefore, void (recently Austrian Supreme Court 8 Ob 59/20i). Furthermore, the assigned claims must fall within the area of responsibility of the association bringing the action – eg, the Association for Consumer Information may bring a sample lawsuit for an individual consum- er claim which has been assigned to the Association (Austrian Supreme Court 4 Ob 208/08d, Section 502, paragraph 5, line 3 of the Code on Civil Procedure). Austrian-Type Mass Claims Austrian-type mass claims can be used for all kinds of claims that can be assigned. However, they must fulfil certain procedural requirements (see 3.1 Mechanisms for Bringing Collective Redress/Class Actions ). In practice, they are mainly used by consumer protection organisations. As mentioned above, typical civil law actions, such as for damages or warranty, are general- ly assignable. A contractual prohibition of assignment that does not concern an assignment under Section 29 of the Consumer Protection Act may be effective if it is not considered to be severely disadvantageous or immoral for other reasons (see recently Austrian Supreme Court 7 Ob 68/21g). Judicial Joinder of Proceedings Judicial joinder of proceedings for the purpose of pro- cedural efficiency is, in principle, possible for all types of cases pending at the same court under the same procedural rules (Section 187 of the Code on Civil Procedure). 2.3 Definition of Collective Redress/Class Actions There is no statutory definition of collective redress/ class action in Austrian law.
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