AUSTRIA Trends and Developments Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
the interruption of the time bar and the reduced costs and cost risks, it plays a significant role in the deci- sion- making and seems to outweigh the disadvan- tage of legal uncertainties deriving from the too-vague legal provisions. Due to the structure of the proceedings into two-to- three separate phases, the question if the claims are sufficiently similar to be brought collectively can be decided at relatively low costs, upfront. This can be a huge advantage for the claimant’s side, if the similarity of the individual claims is in question. Overall, claim- ants’ lawyers and litigation funders will have to assess the advantages and disadvantages of the various instruments with due diligence. The defendant, how- ever, will be confronted with the claimant’s choice and will have no possibility to opt for a different regime. Implementation of Directive 2020/1828 Qualified entities Under the new regime, collective actions can be brought by “qualified entities” only. All Austrian organisations that had been entitled to seek collective redress in the form of injunctive relief in the past are “qualified entities” by law. Moreover, organisations that are recognised as “quali- fied entities” in another member state of the European Union and that are entered in a list to be published by the European Commission may bring an action. In addition, legal entities that meet the special requirements provided by the law can be recognised as “qualified entities” by the Austria Federal Cartel Prosecutor ( Bundeskartellanwalt ). It is expected that organisations that have filed collective actions in the past will require about six months to be recognised as a “qualified entity”. Injunctive and redress measures Qualified entities are entitled to bring representative actions before courts or administrative authorities seeking (i) injunctive measures, and (ii) redress meas- ures. • Injunctive measures are available in the form of a provisional and a definitive measure to cease a
practice or, where appropriate, to prohibit a prac- tice, where that practice constitutes an infringe- ment of European consumer law. • Redress measures require entrepreneurs to provide affected consumers with remedies such as com- pensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid. There have not been significant changes in the exist- ing Austrian law with the implementation of the EU Directive in this respect. The requirement for revision related mainly to the mechanism to seek a monetary judgment. In practice, no significant changes are expected in the way these types of matters are liti- gated. However, given the suspensive effect of such repre- sentative actions, it is per se highly attractive to file a lawsuit under the new regime. Opt-in as necessary step for redress actions The newly implemented regime provides for an opt-in mechanism for redress actions. While actions for injunctions and declaratory relief are brought by qualified entities on the basis of their own entitlement and no opt-in or opt-out mechanism is necessary, for a collective redress action consumers must “opt-in” to participate in the legal action and to be concerned by its outcome. Consumers who are not part of the initial group, who mandated the qualified entity to file the action (at minimum 50 consumers), can join the proceedings within three months after authorisation of the collective action by the court. To take legal effect (lis pendens) the qualified entity must file a formal submission with the court. Once this has been done, consumers cannot revoke their joinder. Nevertheless, parallel collective actions by one or more qualified entities are possible. It is expected that large cases, such as the “Diesel-matter” will produce several collective actions in parallel. The consumer will have to choose which action to join. Participa- tion in parallel collective actions by one consumer will only be possible if the actions are sufficiently different,
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