AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
suit avoids further litigation without disproportionately complicating or delaying the ongoing litigation and that the new claims are not yet time-barred at the time of assertion (Austrian Supreme Court 3 Ob 149/21i). For the procedure of assignment see 3.1 Mechanisms for Bringing Collective Redress/Class Actions . General Rules on Third-Party Joinders In general, a third party may join the proceedings on the side of the claimant or defendant if it has a legal interest in the success of the respective party. Legal interest is a given if the decision will have a direct legal effect on the third party’s position – eg, an insurer may join proceedings of an insured party against the damaging party. However, the fact that a potential claim is based on the same facts subject to the pending proceeding does not justify a third-party joinder. For example, if defective products are sold and several persons have been injured as a result, one injured party cannot join the proceedings of another injured party, even though the same preliminary question arises for both as to whether the product was defective. A “de-facto-joinder” in such a case is only possible through an assignment and an “Austrian-type mass claim”. Moreover, if such claims are pending at the same court, the court may join proceedings to be heard together (for both, see 3.1 Mechanisms for Bringing Collective Redress/Class Actions ). 3.6 Case Management Powers of Courts Interruption of Proceedings due to Other Pending Proceedings If the decision of a legal dispute depends in whole or in part on a legal relationship that is the subject of other court proceedings, the deciding court may inter- rupt the proceedings until a final decision has been rendered in these other proceedings (Section 190 of the Code on Civil Procedure). This provision primarily refers to the case where another proceeding is pending between the same par- ties. However, it can also be relevant if many individual claims of the same kind are pending. In these cases, too, the court may, if it appears necessary with regard
to procedural efficiency, interrupt a proceeding until another proceeding has been decided. For example, in the “Dieselgate” cases, many Austrian courts interrupted proceedings until the ECJ had ruled on the question of jurisdiction in one of these proceed- ings (see – eg, Austrian Supreme Court 4 Ob 119/19g) and subsequently followed the decision of ECJ (see 3.1 Mechanisms for Bringing Collective Redress/ Class Actions ). The interruption in these cases is at the discretion of the court. In its decision, the court must consider that the interruption should lead to an improvement in procedural efficiency (Regional Court Vienna 44 R 24/10w). The desire to reach decisions that are con- sistent with each other does not alone justify an inter- ruption (Higher Regional Court Vienna 1 R 73/09a). An interruption can therefore be envisaged if the other proceedings are likely to be terminated in the near future and extensive and costly hearings of evidence can be avoided in the interrupted proceedings. Joining of Proceedings by the Court If several similar actions against the same defendant are pending before the same court, the court may join these proceedings for a joint hearing if this is likely to simplify or accelerate the decision (Section 187 of the Code on Civil Procedure, see 2.1 Collective Redress and Class Action Legislation ). Even if the connection objectively serves procedural efficiency, it is usually still associated with additional work for the respective judge. At the Commercial Court of Vienna, certain rules to enhance the attrac- tiveness of this tool relating to allocation of cases between the judges have been implemented. 3.7 Length and Timetable for Proceedings Average Duration Proceedings before Austrian courts are generally effi- cient. In civil proceedings, most procedural steps are foreseen to be taken within two to four weeks of each other. The average duration of proceedings is one to one-and-a-half years in the first instance and from nine months to one year in the appellate stage.
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