AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions Representative and Collective Actions Claims for injunctive relief and for redress are to be asserted in “normal” contradictory proceedings according to the general rules of the Code on Civil Procedure. The labour and social courts are responsi- ble for representative actions in the field of labour law. For collective actions brought by a qualified entity under the newly implemented regime on collective redress, on trial court level, the Commercial Court of Vienna has exclusive jurisdiction regardless of the value of the claim (Sections 620 Code on Civil Pro- cedure). The Commercial Court of Vienna also has exclusive jurisdiction over provisional injunctions in these matters. Changing this court venue by agree- ment of the parties is not permissible, making this a mandatory court venue. Entrepreneurs who are domiciled in an EU member state may be sued in Austria pursuant to Article 7 (3) of the Brussels I Regulation (Austrian Supreme Court 6 Ob 264/02w). When seeking injunctive relief, it is highly recommend- ed, yet not obligatory, to request the entrepreneur concerned to acknowledge its obligation to cease and desist and to promise a penalty in the event of a further infringement before filing the lawsuit. If the company makes a corresponding declaration, there is no longer any legal interest in bringing an action. Thus, the claim would have to be dismissed. Sample Lawsuits The same procedural rules apply to sample lawsuit as to individual actions. However, it should be noted that the assignment of a consumer claim does not transfer the special jurisdiction for consumers under Article 18 of the Brussels I Regulation (ECJ, C-498/16, Schrems/ Facebook), nor do sample lawsuits interrupt time-bar, unless otherwise agreed.
Austrian-Type Mass Claims: Jurisdiction The jurisdiction for Austrian-type mass claims derives from the jurisdiction for individual claims bundled in the mass lawsuit. However, the mechanism of bun- dling individual claims may change jurisdiction with regard to: (i) the amount in dispute; and (ii) the special jurisdiction for consumer matters. The amount in dispute In general, a claim may be brought as part of a “bundle of assigned claims” before the same court only if that court has local jurisdiction over this claim (Article 227, paragraph 1 of the Austrian Court on Civil Procedure). The requirements for jurisdiction are, in this regard, no different than if the assigned claims were asserted by the originally entitled parties (Austrian Supreme Court 2 Ob 130/20m, 2 Ob 21/17b). A more generous regulation applies regarding the “value limit jurisdiction”. In general, the district courts have jurisdiction for actions with an amount in dis- pute of less than EUR15,000. If the amount in dispute exceeds EUR15,000, the regional courts have juris- diction at trial court level. Similar claims of different creditors that have been assigned to the claimant are not aggregated for the purpose of determining the value limit jurisdiction. However, if one of the assigned claims exceeds EUR15,000 and is therefore subject to the jurisdiction of the regional court, the assigned claims below EUR15,000 can also be included in the mass claim and are processed by the regional court (Section 227, paragraph 2 of the Austrian Code on Civil Procedure). Special jurisdiction for consumer matters The Austrian-type mass claim has one significant disadvantage: If consumer claims are assigned to a specific entity, such as the Austrian Association for Consumer Information, the special jurisdiction for consumer claims is not transferred with the assign- ment (ECJ, C-498/16, Schrems/Facebook). Therefore, the claimant bringing an Austrian-type mass claim for consumers cannot invoke this jurisdiction. Austrian-Type Mass Claims: Pre-Litigation Mechanisms In order to bring an Austrian-type mass claim, the claimant (eg, the Association for Consumer Infor-
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