AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
material and orders the party on its own initiative to produce the evidence (this rarely occurs) or upon request by the other party (Section 303 of the Code on Civil Procedure). Under Section 305 of the Code on Civil Procedure, a party ordered to produce a piece of evidence is enti- tled to object to the order to protect: • family affairs; • the party’s duty of preserving honour; • itself or third parties from criminal prosecution; However, under Section 304 of the Code on Civil Pro- cedure, the requested party may not refuse to pro- duce the requested evidence if: • it previously referred to the piece of evidence (mostly documents) in the proceedings; • substantive law requires the requested party to produce the evidence (this also applies to evidence in the possession of third parties); or • the evidence is in the form of a document and may be considered to be of joint use with respect to both parties – eg, a contract (this also applies to evidence in the possession of third parties if the piece of evidence is of joint use for the third party and either party to the litigation). • legal privilege; or • business secrets. If a party does not comply with the court order, there is no enforcement available. The court will consider the refusal in its assessment of evidence and adverse inferences may be drawn by the court as finder-of- fact, unless an exemption according to Section 305 applies. Legal Privilege Austria recognises the concept of legal privilege. For example, members of legal professions – particularly attorneys-at-law – must refuse to testify with respect to any one of their mandates before any authority unless released by the client. Neither the party nor its counsel can be forced to produce the products of client-attorney work. No adverse inferences may be drawn by the court from such a refusal. Client- attorney correspondence and the products of attorney
work are protected by legal privilege irrespective of where such documents are located. 3.11 Remedies For the Austrian forms of collective redress, the same principles apply with regard to remedies as for indi- vidual actions, with one important exception: the admissibility of an appeal to the Supreme Court for sample lawsuits. Appeal Levels and Principles In Austrian civil procedure, there are two appeal levels, one to the Court of Appeal and one to the Supreme Court. An appeal to the Supreme Court is limited to matters of significance for the judicial system and depending on the amount in dispute. Parties may appeal first instance decisions to regional courts which hear appeals from decisions of district courts, and to regional appellate courts in cases of appeals from regional court decisions. The service of the judgment triggers a four-week peri- od during which the partly or entirely unsuccessful party may file an appeal. The opponent may respond thereto within four weeks of service with the appeal. These time periods cannot be extended. The appellant may claim errors of procedural and/or material law, errors of fact and/or nullity (which rarely occurs). The appeal proceedings serve to review the correctness of the judgment in first instance, but not to raise any new facts or bring new claims. The court of appeal must disregard new allegations and new evidence. The Supreme Court only reviews questions of (mate- rial and/or procedural) law. Factual findings are never subject to revision of the Supreme Court. Factual find- ings and the assessment of the evidence can only be challenged before the courts of appeal. Admissibility of an Appeal to the Supreme Court For admissibility of an appeal to the Supreme Court, the following rules apply (Section 502 of the Code on Civil Procedure). • If the amount in dispute is less than EUR5,000, no appeal to the Supreme Court is admissible.
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