AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
• If the amount in dispute exceeds EUR5,000, the decision of the Court of Appeal includes a state- ment on whether its judgment is open to an appeal to the Supreme Court. • If the amount in dispute is between EUR5,000 and EUR30,000, the Court of Appeal’s decision on admission can be contested with a request for amendment. The Court of Appeal (not the Supreme Court) decides on this request and its decision is not appealable. • If the amount in dispute exceeds EUR30,000, the party seeking further appeal may challenge the Court of Appeal’s decision on admissibility and request permission to seek further appeal to the Supreme Court (so-called extraordinary appeal). In such cases, the challenge must contain: (i) the challenge of the decision of the court of appeal denying further appeal to the Supreme Court; and must also (ii) set forth the actual appeal. The Supreme Court decides on both. Austrian-Type Mass Claim The individual claims assigned to the claimant are asserted in one action but, nevertheless, they are considered as individual claims for procedural pur- poses. For the calculation of the amount in dispute, the individual amounts are not to be added together (see also 3.1 Mechanisms for Bringing Collective Redress/Class Actions ). Therefore, the admissibility of the appeal must be assessed separately for each claim (Austrian Supreme Court 5 Ob 123/12t). Sample Lawsuit The sample lawsuit was introduced to allow for the creation of a precedent independent of the admis- sion rules. The entitled associations may file a case on behalf of an individual (a consumer) and bring it before the Supreme Court irrespective of the amount in dis- pute (Section 502, paragraph 5, line 3 of the Code on Civil Procedure). While the judgment only has legal effect regarding the specific case, the lower courts will generally observe the decision of the Supreme Court as a practical precedent. 3.12 Settlement and ADR Mechanisms Representative Actions For the Austrian forms of collective action, essentially the same principles apply with regard to settlement
and ADR as for individual actions. Accordingly, a dis- tinction must be made between extrajudicial settle- ments and judicial settlements. Extrajudicial Settlements Extrajudicial settlements are concluded without a court being involved and – in order to stop the law- suit – would require the parties to agree to withdraw the claim or to an indefinite stay of proceedings. This is a common practice. Judicial Settlements Judicial settlements are concluded before the court and are immediately enforceable. They are possible in every moment of the procedure. Judges try to encourage parties to reach a settlement, especially in the first hearing, and often support set- tlement negotiations. The parties are not limited by the pending dispute and may also agree on subject matters that have not yet been part of the dispute. This might trigger addi- tional court fees, however. The court will only review if the subject matter in dispute is something capable of being settled (eg, something that is fundamentally within the autonomy of the parties). Some courts also check whether the terms of the settlement are specific enough to be enforced. In practice, courts are open to record a settlement in the form as reached by the parties. Under the recently implemented regime on class action, the qualified entity and the entrepreneur may jointly propose a settlement to the court regarding remedies for the affected consumers. A settlement can be reached at any stage of the proceedings, but for it to take effect, it must be approved by the court. The court may only confirm a settlement if it does not contradict mandatory provisions of national law and does not contain any terms that are unenforceable. A court-approved settlement is binding on the con- sumers who have joined the action (Section 631 of the Code on Civil Procedure). If the settlement is not confirmed, the proceedings must continue.
19
CHAMBERS.COM
Powered by FlippingBook