AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
Costs The conclusion of an extrajudicial settlement agree- ment triggers a specific settlement tax duty, a concept which is not known in many other jurisdictions. Parties should consult their local lawyer before concluding a settlement under Austrian law. Judicial settlements are covered by the court fees and do not trigger extra taxes (if the subject of the settle- ment does not exceed the subject of the proceed- ings). If the legal dispute is settled in the first hearing, the court fees are halved. ADR Mechanisms in Austria ADR and, particularly, mediation are viewed positive- ly in Austria. The Law on Mediation regarding Civil Claims ( Zivilrechts-Mediations-Gesetz ), enacted in 2004, aims to promote and facilitate access to media- tion by setting out the basic standards to conduct mediation procedures, defines the qualifications of certified mediators, provides that mediation con- ducted by a certified mediator prevents the limitation period from expiring, and that certified mediators may not be asked to testify in court proceedings. ADR as a Voluntary Mechanism The prevailing opinion in Austria is that parties should engage in ADR proceedings voluntarily. There are only a few situations in which mediation is compulsory by law. These cases mainly relate to disputes between neighbours, tenancy disputes and disputes between members of certain professional groups subject to a code of conduct (eg, architects and lawyers). Judges increasingly encourage parties to consider ADR, in particular mediation. If mediation fails because of lack of co-operation of (one of) the parties, there are no adverse consequences. ADR Institutions Several organisations offer and promote ADR in Aus- tria, including the Bar association. In international cases, the Vienna International Arbitral Centre of the Federal Economic Chamber (VIAC) is the leading insti- tution. In January 2021, VIAC revised its ADR rules to offer a flexible procedural framework that optimally caters to
clients’ needs. To promote understanding and use of ADR, VIAC also published a handbook in 2019 which provides guidance to ADR proceedings under its new mediation rules. 3.13 Judgments and Enforcement of Judgments Representative Action The judgment of a representative action pursuant to Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act is binding only inter partes and does not interrupt the limitation period of other claims. Individual consumers cannot directly refer to it in individual subsequent proceed- ings. In fact, a Supreme Court judgment on a repre- sentative action has a guiding function in individual proceedings as well. The injunction can only be enforced by the claimant (ie, the association). The general enforcement rules apply. Injunctions are enforced with penalties if the obligated party acts contrary to the judgment. Under the newly implemented regime, consumers benefit from the remedies specified in the judgment without the need to bring a separate action. In addi- tion, the new law has a significant impact on the inter- ruption of the statute of limitations: with the consumer joining a representative action, the statute of limita- tion is suspended retroactively to the date on which the representative action was brought (Section 635 Code on Civil Procedure). Following the legally bind- ing rejection of a representative action for redress, a consumer who has already joined a claim has an additional period of three months to assert the claim in individual proceedings or by joining a representa- tive action. This allows the consumers to await the outcome of the proceedings before pursuing any sub- The sample lawsuit only has binding effect for the indi- vidual case and only interrupts the limitation period for the individual case. Formally, there is no doctrine of precedent in Austrian law; de facto, however, Supreme Court decisions naturally have a guiding effect for fur- ther rulings. sequent claims. Sample Lawsuit
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