AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
invoking the decision from 2005. This may lead to long interlocutory disputes on the admissibility of the Austrian-type mass claim. 3.3 Standing Representative Actions and Sample Lawsuits Representative actions under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act and sample lawsuits can only be brought by certain associations, for example: the Chamber of Commerce, the Chamber of Labour, the Federation of Trade Unions, the Chamber of Agricul- ture or the Association for Consumer Information. In practice, the Association for Consumer Information and the Chamber of Labour have predominantly made use of the representative action and the sample law- suit. Collective Actions Under the New Regime Collective actions brought under the newly imple- mented regime on collective redress are to be brought by a “qualified entity”. All Austrian organisations that had been entitled to seek collective redress in the form of injunctive relief in the past are “qualified enti- ties”. In addition, legal entities that meet the special requirements provided by the law can be recognised as “qualified entities” by the Austria Federal Cartel Prosecutor ( Bundeskartellanwalt ). In addition, organisations that are recognised 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 may bring an action. Austrian-Type Mass Claim Contrary to representative actions and sample law- suits, an Austrian-type mass claim can theoretically be brought by anyone to whom claims can be assigned under civil law rules. In practice, it is mainly used by the Association for Consumer Information and the Chamber of Labour and certain associations ( Vereine ). 3.4 Class Members, Size and Mechanism – Opting In or Out Section 624, paragraph 1 Code on Civil Procedure provides for an opt-in model for representative actions for redress, requiring a minimum number of 50 con-
sumers to participate in the initial lawsuit. Hence, qualified entities must represent at least 50 individual consumers at the time of filing the lawsuit in order to pursue redress. It is possible that more consumers join the action at a later point in time (see 3.5 Joinder ). Consumers must have actively opted in to participate in the proceedings, and their claims must be based on “essentially similar factual circumstances” (Section 5, paragraphs 2 and 3 Qualified Entities Act and Section 624, paragraphs 1 Code on Civil Procedure). 3.5 Joinder “Joining” a Collective Action for Redress Consumers can join a representative action for redress if their claim is based on essentially similar factual circumstances and the same legal questions are relevant. Once a representative action for redress is authorised by the court, consumers can join the proceedings (opt-in) within three months by applying to the qualified entity. If the latter agrees for the con- sumer to join, the qualified entity has to file a submis- sion with the court. The notice must fully specify the legal basis of the claim and assure that the claim has not been and will not be asserted either domestically or abroad. Once a consumer joins, their claim is considered pend- ing (lis pendens), and the court’s decision extends to the consumer’s claim. Joining is not possible if the claim has already been asserted elsewhere. With- “Joining” an Austrian-type mass claim is done prior to the filing of the action by the entitled individuals assigning their claims to the “mass claimant” for col- lection. With the assignment for collection, however, the assignor does not actually join the action; rather, they assign their claim to the claimant and are not themselves a party to the proceedings. Recent case law clarified that under certain conditions it is also possible that, after filing a lawsuit, further claimhold- ers assign their claims to the claimant and the claim- ant asserts these claims by extending its lawsuit. The prerequisite for this is that the extension of the law- drawal from the joinder is not permitted. “Joining” an Austrian-Type Mass Claim
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