AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
Complex Duration Complex disputes may take longer. Especially in more complex cases, the evidence procedure in the first instance can take longer, for example if experts or many witnesses are involved. Additionally, the appel- late court proceedings may reveal errors of the lower court proceedings, and the case can be remanded to the lower court for repetition and/or completion of the taking of evidence. The judgment rendered in such a remand is also subject to appeal according to the gen- eral procedural rules. In such cases, it can take several years before a final, binding judgment is rendered. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings Accelerated procedures are only provided for actions with a small amount in dispute (up to EUR75,000). For these actions, the court issues a decision in favour of the claimant based on the lawsuit alone. This decision becomes final and binding if the defendant does not object to it within four weeks. If they object, “normal proceedings” are initiated. In order to avoid procedural delays by the parties, the law provides for different consequences of default. For example, a submission that is culpably made only at an advanced moment in the proceedings can be rejected if it would significantly delay the proceed- ings (Section 179 of the Code on Civil Procedure). In addition, the judge may order the parties to make a specific submission, name witnesses or produce documents within a certain period. If a party fails to comply with such an order in due time without reason- able excuse, the submission may be rejected (Section 180, paragraph 2 of the Code on Civil Procedure). 3.9 Funding and Costs While third-party funding had already been permitted in the past, the newly implemented regime on col- lective redress explicitly permits third-party funding of the proceedings (Section 6 Qualified Entities Act). Certain restrictions apply. For example, the third-party funder must not be a competitor of the defendant or economically or legally dependent on the defendant. In practice, funding by a commercial litigation funder (typically in exchange for a share of the success fee) is the standard case, covering both the costs of liti-
gation and, in the event of an unfavourable outcome, the opposing party’s costs. This allows consumers to assert their claims without risk. The litigation funder will usually reserve the right to terminate the agree- ment at any time to prevent covering further costs while bearing the costs already incurred. If the qualified entity utilises third-party funding for a specific representative action, it must inform the court of this circumstance and the name of the third-party funder. However, it is not required to disclose the liti- gation funding agreement itself or its contents to the court, but only to present or disclose it to the Federal Cartel Attorney at the latter’s request. Thus, Austria adopts a very liberal approach to litiga- tion financing compared to other EU member states. The design of the contracts is intentionally left to pri- vate autonomy, with no limits on success fees and no disclosure obligation for the funding agreement in the proceedings. The court may order that evidence held by the defend- ant or a third party be disclosed, subject to applicable EU and national provisions regarding confidentiality and proportionality. Otherwise, the same principles with regard to disclo- sure and privilege that apply to individual actions also govern the Austrian forms of collective redress. Pre-Trial Disclosure Austrian procedural law does not provide for pre-trial proceedings as known – eg, in Anglo-American juris- dictions. There are only a few specified applications available which may be decided before the trial takes place, such as request for injunctive relief (to secure future enforcement or to safeguard evidence) or application to dismiss the claim for lack of jurisdiction. Trial Disclosure In civil proceedings, a party may be ordered by the court to produce information/evidence at its dispos- al, if the court considers such information/evidence 3.10 Disclosure and Privilege Representative Actions for Redress
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