AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
mation) usually publicly calls on the individuals con- cerned to assign their claims to the claimant. The assignments are handled via forms on which the indi- vidual claims must be specified in the same detail as would be necessary for an individual lawsuit. 3.2 Overview of Procedure Representative Cease-and-Desist Actions Representative actions under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act are to be asserted in “normal” con- tradictory proceedings according to the general rules of the Code on Civil Procedure. Some special provisions of the Unfair Competition Act apply, namely: • special provisions that facilitate the granting of an interim injunction (Section 24 of the Unfair Compe- tition Act); • special provisions regarding the publication of judgments (Section 25, paragraphs 3-7 of the Unfair Competition Act); and • the possibility to exclude the public due to endan- gering business or trade secrets (Section 26 of the Unfair Competition Act). Collective Redress Under the New Regime Collective actions brought under the newly imple- mented regime are also to be asserted in “normal” contradictory proceedings according to the general rules of the Code on Civil Procedure. Additionally, with regard to representative actions for redress, Sections 624 ff Code on Civil Procedure provide as follows. • In a first step, the court has to decide whether the general and specific requirements for a representa- tive action for redress are met (eg, the number of consumers, Section 626 Code on Civil Procedure). The decision is then published in the Edicts Archive ( Ediktsdatei ). It can be appealed. • In a potential second step, the court may decide on the motion for a declaratory judgment filed by the qualified entity or the defendant. This decision can also be appealed. The Austrian legislature apparently assumes (or rather hopes) that a final and binding decision will, in practice, lead to a
global settlement of all or, at least, a vast majority of all collected claims. • In a third step, the court has to finally decide on the individual claims of the consumers, possibly based on the decision regarding the declaratory judgment motion. Sample Lawsuit The sample action is characterised by the fact that there is no value limit for the admissibility of an appeal to the Supreme Court (see 3.11 Remedies ). Austrian-Type Mass Claims The Austrian-type mass claim as a bundle of claims is based on the propriety of the “objective aggregation of claims” ( objektive Klagenhäufung , Section 227 of the Code on Civil Procedure). Objective aggregation of claims means that the claimant can assert several claims against the same defendant in one action. According to the wording of Section 227 of the Code on Civil Procedure, claims may be bundled regard- less of whether there is a special connection between them. Contrary to this wording, an obiter dictum of the Supreme Court from 2005 indicates that a certain con- nection is nevertheless required (Austrian Supreme Court 4 Ob 116/05w obiter; obiter dictum is the court’s expression of opinion uttered in a judgement, but not essential to the decision). Accordingly, all claims must be based on an “essentially similar cause of action” and concern “essentially identical issues of fact or law”. However, the same decision indicates that the connection need not be too close and that only an arbitrary set of claims is to be rejected. Literally, the Supreme Court states that the necessary connection is not fulfilled “in the case of an arbitrary ‘collection’ of completely different claims in one proceeding” (Aus- trian Supreme Court 4 Ob 116/05w obiter). After that decision, the Supreme Court has always considered the necessary connection to be given. Famous Austrian law professors therefore predomi- nantly assume that the Supreme Court only wants to prohibit the completely arbitrary bundling of claims. Nevertheless, defendants may claim lack of admis- sibility and lack of jurisdiction for individual claims with an amount in dispute lower than EUR15,000 by
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