Definitive global law guides offering comparative analysis from top-ranked lawyers
CHAMBERS GLOBAL PRACTICE GUIDES
Collective Redress & Class Actions 2025
Definitive global law guides offering comparative analysis from top-ranked lawyers
Contributing Editor Sarah-Jane Dobson Ashurst LLP
Global Practice Guides
Collective Redress & Class Actions
Contributing Editor Sarah-Jane Dobson Ashurst
2025
Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair and Stephen Dinkeldein Content Reviewers Vivienne Button, Lawrence Garrett, Sean Marshall, Marianne Page, Heather Palomino and Adrian Ciechacki Content Coordination Manager Nancy Laidler Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Joanna Chivers Head of Production Jasper John Production Coordinator Genevieve Sibayan
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Copyright © 2025 Chambers and Partners
Contents
INTRODUCTION Contributed by Sarah-Jane Dobson, Ashurst p.5
INDIA Law and Practice p.144
Contributed by Vritti Law Partners Trends and Developments p.160 Contributed by Vritti Law Partners
AUSTRIA Law and Practice p.7 Contributed by KNOETZL Trends and Developments p.22 Contributed by KNOETZL
NETHERLANDS Law and Practice p.165
Contributed by Brande & Verheij LLP Trends and Developments p.179 Contributed by Brande & Verheij LLP
BRAZIL Law and Practice p.28
Contributed by Areosa Advogados Trends and Developments p.47 Contributed by Figueiredo Sens Advogados
NEW ZEALAND Law and Practice p.185
Contributed by Russell McVeagh Trends and Developments p.195 Contributed by Tompkins Wake
CANADA Law and Practice p.54
Contributed by Baker McKenzie Trends and Developments p.65 Contributed by Baker McKenzie CHINA Law and Practice p.71 Contributed by Jingtian & Gongcheng Trends and Developments p.83 Contributed by Jingtian & Gongcheng CZECH REPUBLIC Law and Practice p.88 Contributed by PRK Partners Trends and Developments p.101 Contributed by PRK Partners FRANCE Law and Practice p.106 Contributed by Willkie Farr & Gallagher LLP Trends and Developments p.120 Contributed by Willkie Farr & Gallagher LLP
NIGERIA Law and Practice p.200
Contributed by Streamsowers & Köhn Trends and Developments p.213 Contributed by Streamsowers & Köhn
OMAN Law and Practice p.218 Contributed by Al Khalili, Al Ghailani & Co LLP
PORTUGAL Law and Practice p.236 Contributed by PLMJ Trends and Developments p.249 Contributed by PLMJ SCOTLAND Law and Practice p.253 Contributed by Pinsent Masons Trends and Developments p.266 Contributed by Pinsent Masons Contributed by Schoenherr Slovenia Trends and Developments p.284 Contributed by Schoenherr Slovenia SWEDEN Law and Practice p.288 Contributed by Hellström Law Firm SLOVENIA Law and Practice p.273
GERMANY Law and Practice p.127 Contributed by CMS
GREECE Trends and Developments p.138 Contributed by Ovvadias S. Namias Law Firm
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Contents
SWITZERLAND Law and Practice p.297 Contributed by Bär & Karrer
UKRAINE Trends and Developments p.311 Contributed by Miller Law Firm
USA Law and Practice p.317 Contributed by Cleary Gottlieb Steen & Hamilton
USA – CALIFORNIA Law and Practice p.328
Contributed by Kaufhold Gaskin LLP Trends and Developments p.337 Contributed by Mogin Law LLP USA – LOUISIANA Law and Practice p.343 Contributed by Kanner & Whiteley, LLC Trends and Developments p.353 Contributed by Kanner & Whiteley, LLC
USA – NEW YORK Law and Practice p.360
Contributed by Sadis & Goldberg LLP Trends and Developments p.370 Contributed by Sadis & Goldberg LLP
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INTRODUCTION
Contributed by: Sarah-Jane Dobson, Ashurst
Ashurst has a reputation for successfully managing large and complex multi-jurisdictional transactions, disputes and projects and delivering outstanding outcomes for clients. Ashurst acts as a global team, with 31 offices in 18 countries, and offers the reach and insight of a global network of legal, new law and
risk professionals, combined with the knowledge and understanding of local markets. With over 490 part- ners and a further 2,000 lawyers working across 11 different time zones, the firm is able to respond to clients wherever and whenever required.
Contributing Editor
Sarah-Jane Dobson is the global head of product liability and product risk (safety and regulatory compliance) at Ashurst. She
actions), regulatory enforcement actions, inquests, public inquiries and judicial reviews, and she acts on regulatory compliance, advertising issues, global product recalls and corrective actions. Sarah-Jane’s degree in science makes her particularly well-placed to navigate clients’ highly technical product matters. Her dual legal qualification in England and Wales and Australia, her international experience and her language skills make her particularly adept at multi-jurisdictional and multi-lingual matters.
specialises in regulatory, litigious and policy matters across the full product lifecycle in product safety, compliance and liability, and in consumer litigation. She has extensive experience defending corporate clients in high- stakes litigation (including in high-profile class
Ashurst Fruit & Wool Exchange 1 Duval Square
London E1 6PW UK Tel: +44 778 9816 477 Email: Sarah-Jane.Dobson@ashurst.com Web: www.ashurst.com/en/our-locations/london
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INTRODUCTION Contributed by: Sarah-Jane Dobson, Ashurst
Collective Redress and Class Actions – A Global Overview Globally, the mechanisms for collective redress are developing at a rapid pace. Although the notion of hav- ing the interests of multiple parties represented as a group within proceedings is not a foreign concept for many jurisdictions around the world, in many regions the formalisation of collective redress mechanisms is still a fairly recent development. Even where such sys- tems previously existed in some countries, their use to date has been limited – until now. The policy motivation behind this growing global trend is reflective of a number of separate but convergent phenomena. For one, there is a shifting attitude among claimants and claimant law firms favouring these types of claims. There has been a resultant response from the judicial system, including an overarching emphasis on the public interest in dealing with large proceed- ings cost-effectively and time-efficiently. Furthermore, the legal rights of individuals have expanded in many areas, and litigants are more aware than ever of these legal rights. Universal issues, such as those relating to the environment or corporate social responsibility concerns, also lend themselves to group proceedings where, arguably, “society at large” could soon be seen as the proper claimant. There is also increased publi- cation of legal issues and/or group legal proceedings against corporate giants across the globe in a mod- ern and increasingly online world where information exchange is rapid and knows no borders. Jurisdictions in which collective redress and class action systems have long been recognised and used, such as the USA, have been studied as potential models for countries that have more nascent sys- tems, including most notably, the EU, which has now implemented a uniform system under Directive (EU) 2020/1828. Countries that are adopting or refining their systems appear to consider that they have the benefit of picking and choosing components of their systems to reflect best practices across the board. The most contentious choices within those available for collec- tive redress mechanisms still appear to be those that are at the core of any system: the composition and mechanism for joining a class (the “opt-in” versus the “opt-out” system); the scope of subject matter that can be pursued through these mechanisms; and the ability to deploy litigation funding, and any limits on the same.
In the wake of highly publicised proceedings, and extremely high awards of damages, particularly in the USA, many other countries that were previously less familiar with these mechanisms have now begun to adopt formal systems. Some remain cautious – pos- sibly in an attempt to prevent the feared “floodgates” from being opened to such claims, and their systems being overwhelmed by them. The resistance towards litigation funding in some countries is on the same basis, and also reflects a general reluctance towards encouraging a perceived “commercialisation” of the legal system in this way. This trend is reflected in the discretion exercised by EU member states when implementing the Directive, with some opting for more conservative approaches. However, other jurisdictions are increasingly open to change and are embracing third-party funding and opt-out regimes as a means of facilitating access to justice, particularly in light of the growing trend for collective actions in respect of environmental, social and governance issues. And yet, even with the reservations of many countries and the reluctance of some to adopt a full-blown class action regime, the increase in these types of proceed- ings is inevitable across the world. Even in countries where a more formalised collective redress system has seemed further off, the existing legal mechanisms in those countries often provide for consolidated or group proceedings, even if by another name. The trends with- in those countries are therefore likely to mirror global trends in respect of increased focus and use of group- proceeding mechanisms. As you read through this edition of the Collective Redress & Class Actions Global Practice Guide , we urge you to take note of the developing trends, which, although country-specific, do reflect global themes. There are likely to be significant developments as we move into further editions of this guide, reflective of the fact that this area is one in which we have only recently begun what is no doubt going to be a very long road to more normalised and frequent class actions across the world. We hope this resource will be invaluable to those navigating this burgeoning area – and look forward to updating this guide in the future to ensure it remains a practical tool for those interested in this topic and navi- gating its complex and ever-changing legal framework.
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AUSTRIA
Czech Republic
Germany
Slovak
Vienna
Austria
Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick KNOETZL
Hungary
Italy
Slovenia
Croatia
Contents 1. Policy Development of Collective Redress/Class Action Mechanisms p.9 1.1 History and Policy Drivers of the Legislative Regime p.9 1.2 Basis for the Legislative Regime, Including Analogous International Laws p.9 1.3 Implementation of the EU Collective Redress Regime p.10 2. Legal Framework p.10 2.1 Collective Redress and Class Action Legislation p.10 2.2 Scope of Areas of Law to Which the Legislation Applies p.11 2.3 Definition of Collective Redress/Class Actions p.12 3. Procedure for Bringing Collective Redress/Class Actions p.13 3.1 Mechanisms for Bringing Collective Redress/Class Actions p.13 3.2 Overview of Procedure p.14 3.3 Standing p.15 3.4 Class Members, Size and Mechanism – Opting In or Out p.15 3.5 Joinder p.15 3.6 Case Management Powers of Courts p.16 3.7 Length and Timetable for Proceedings p.16 3.8 Mechanisms for Changes to Length/Timetable/Disposal of Proceedings p.17 3.9 Funding and Costs p.17 3.10 Disclosure and Privilege p.17 3.11 Remedies p.18 3.12 Settlement and ADR Mechanisms p.19 3.13 Judgments and Enforcement of Judgments p.20
4. Legislative Reform p.21 4.1 Policy Development p.21 4.2 Legislative Reform p.21 5. Key Trends p.21 5.1 Impact of Key Trends p.21
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AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
KNOETZL is Austria’s first large-scale disputes reso- lution powerhouse dedicated to high-profile, impor- tant and complex cases. The firm’s diverse expertise encompasses civil, commercial, sovereign, corporate and fraud litigation, focusing significantly on liability claims; corporate banking – including M&A, financ- ing and joint venture disputes, insurance and finan- cial derivatives cases; investor protection; digital transformation; data protection and social media; business and political crime; asset-tracing and pro- visional measures, such as freeze orders and attach-
ments, in the domestic and international contexts; and the enforcement of foreign judgments and arbi- tral awards. KNOETZL’s practice also covers interna- tional commercial arbitration, investment protection and arbitration-related court proceedings, mediation and ADR. The firm is well-recognised for its disputes work at the intersection of civil and criminal matters. Distinguished international law firms, corporate deci- sion-makers and general counsel frequently turn to KNOETZL to act as counsel in their significant dis- putes with an Austrian nexus. Dr Kirstin McGoldrick is a counsel at KNOETZL, dedicating her law practice to the broad areas of arbitration and litigation. Kirstin is specialised in complex matters, often involving cross-jurisdictional and multi-contract disputes. She has represented private commercial parties in a broad range of cases involving industries such as automotive, banking and finance, construction and engineering, insurance and transportation, as well as in matters of corporate and civil law. Prior to joining KNOETZL, she was a senior researcher at the Austrian Notarial Institute, a legal research institute of the Austrian Chamber of Notaries, where she gained significant experience in delivering legal opinions on highly complex issues of civil, company and private international law.
Authors
Bettina Knoetzl is a founding partner at KNOETZL. She has over 25 years’ experience in high-profile international and Austrian matters, specialising in high-stakes international and commercial litigation, focusing on
investor protection, liability claims, corporate and ultra-high net worth disputes, and fraud and asset recovery. Bettina has successfully defended against class action lawsuits and represents corporate and investor clients in shareholder disputes. She counsels government institutions and has designed and led successful cases for ultra-high net worth individuals, including against rogue regimes. She has led the International Bar Association multi- committee AI showcase in Paris, 2023, is chair of Transparency International Austrian Chapter, vice president of the Vienna Bar, and lectures on dispute resolution.
KNOETZL Herrengasse 1 1010 Vienna Austria
Tel: +43 1 34 34 000 Fax: +43 1 34 34 999 Email: office@knoetzl.com Web: www.knoetzl.com
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AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
1. Policy Development of Collective Redress/Class Action Mechanisms 1.1 History and Policy Drivers of the Legislative Regime New Collective Redress for Consumers Historically, Austrian law has not provided for class actions. However, in July 2024, Austria implemented the EU Directive 2020/1828 on representative actions for the protection of the collective interests of con- sumers (the “EU Directive” or the “Directive”). Outside of the scope of this new regime, the previous ways to bring collective actions remain intact. Limited Instruments of Collective Redress So Far Until July 2024, there were only very limited opportuni- ties for collective redress in Austria. Prior to the implementation of Directive (EU) 2020/1828, procedural law only allowed certain asso- ciations to bring collective interest litigation through representative actions and sample lawsuits ( Verband- sklagen according to Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competi- tion Act; Musterklagen according to Section 502, para- graph 5, line 3 of the Code on Civil Procedure). Nevertheless, Austrian legal practice has been facing the phenomenon of mass claims – ie, many similar individual claims for damages based on the same damaging event against the same defendant. Con- sumer protection lawyers and associations reacted to this phenomenon by developing a tool for “bundling” individual claims based on then-existing procedural and substantive rules (the “Austrian-type mass claim”, Sammelklage österreichischer Prägung ). Moreover, under specific circumstances, several similar actions arising out of the same set of facts can be brought against the same defendant in one single lawsuit. Finally, a court before which several separate, yet sim- ilar actions against the same defendant are pending, has the possibility to join these proceedings if joining them promotes procedural efficiency (Section 187 of the Code on Civil Procedure).
Latest Developments In the past, initiatives to strengthen collective redress were concocted from time to time, but these have fiz- zled out, without their giving rise to viable legislative proposals. In recent years, springing from the mass individual investor lawsuits in the wake of the finan- cial crisis and the Volkswagen “Dieselgate” cases, there have been demands for collective legal protec- tion. In the wake of the COVID-19 pandemic, interna- tional attention was attracted by the lawsuits filed by numerous tourists who were infected with COVID-19 in the Tyrolean ski resort of Ischgl in February/March 2020. They have sued the Republic of Austria for the allegedly faulty information and the allegedly delayed reaction of the authorities in the spread of COVID-19 at the beginning of the pandemic. Nevertheless, it was only the pressure from EU leg- islation that led Austria to finally implement a regime of collective redress. On 18 July 2024, the Act on Qualified Entities for Collective Redress (the “Qualified Entities Act”), along with amendments to the Austrian Code on Civil Procedure, the Consumer Protection Act, the Court Fees’ Act and the Lawyer’s Fees Act entered into force, providing significant changes to collective redress under Austrian law (see 4.1 Policy Development and 4.2 Legislative Reform ). However, Austria decided to restrict the applicability to consum- ers, only. For all other claims, as well as in parallel for consumers, the old regime is still available. 1.2 Basis for the Legislative Regime, Including Analogous International Laws Representative Actions Austrian representative actions are transpositions of EU directives into Austrian national law (see 1.3 Imple- mentation of the EU Collective Redress Regime ). Sample Lawsuits The sample lawsuit has been noted by some law professors to be comparable to the German “sample declaratory claim” (Section 606 of the German Code of Civil Procedure). While similarities in the develop- ments of such a legal instrument have been noted in both the Austrian and German legal systems, there is no indication that the Austrian legislature set out to explicitly model their instruments upon Germany’s or other country’s regimes.
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AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
2. Legal Framework 2.1 Collective Redress and Class Action Legislation Representative Actions Under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act certain legal entities (“associations”, Verbände ) can bring legal action against unlawful business practices in dealings with consumers and against the use of unlawful general terms and conditions. However, representative actions brought in accord- ance with Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act can only be used to seek injunctive relief and removal of the unlawful status ( Unterlassungs- und Beseitigung- sanspruch ). They cannot be used to assert claims for damages. Thus, such representative actions can con- trol future conduct but cannot grant damages for past harmful conduct. Under the newly implemented regime on collective redress, so-called “qualified entities” are entitled to seek injunctive relief against businesses for violations that harm or threaten to harm the collective interests of consumers (Section 5, paragraphs 1 and 3 of the Qualified Entities Act, in conjunction with Sections 619 ff of the Civil Procedure Code). However, at the heart of Austria’s only recently imple- mented regime on collective redress is the “represent- ative action for redress” (Section 5, paragraphs 2 and 3, line 1, lit b and line 2 of the Qualified Entities Act, in conjunction with Sections 623 ff of the Civil Procedure Code). This is a novelty in Austrian civil procedure law. It aims at providing effective procedural means to not only end unlawful practices threatening or harming the interests of many consumers but also to provide redress in any form. Under the new regime, consumers can participate in a representative action for redress if they actively join it (opt-in). Once at least 50 consum- ers have joined, the qualified entity can assert claims for all consumers who have joined. Upon a redress decision, the company is obliged to provide redress to the affected consumers, depending on the case, in the form of compensation, repair, replacement, price reduction, contract termination, or reimbursement of
Austrian-Type Mass Claim The Austrian-type mass claim has been developed by Austrian legal practice using specific provisions of Austrian substantive and procedural law. It is therefore an autochthonous tool. 1.3 Implementation of the EU Collective Redress Regime Representative actions under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act are transpositions into Austrian law of the EU Directive 98/27/EC on injunctions for the protection of consumers’ interests (repealed by Direc- tive 2009/22/EC). In 2013, when the European Commission published the non-binding recommendation on the introduction of collective redress measures, the discussion on the introduction of a “group action” (which was already included in a draft of a Civil Procedure Reform Bill in 2007) was relaunched. However, despite working groups being established in the Ministry of Justice, no practical implementation of this instrument took place. At the beginning of 2018, before the European Com- mission announced the draft directive for collective redress under the “New Deal for Consumers” in March 2018, two Austrian political parties respectively intro- duced draft legislation for “group proceedings” ( Grup- penverfahren ) and “representative sample declaratory actions” ( Verbandsmusterfeststellungsklage ). These initiatives remained proposals. With significant delay, Austria has now implemented Directive (EU) 2020/1828 on representative actions for the protection of collective consumer interests. On 18 July 2024, the Qualified Entities Act, along with amendments to the Austrian Code on Civil Procedure, the Consumer Protection Act, the Court Fees’ Act and the Lawyer’s Fees Act entered into force, providing a new system of collective redress for consumers. Rep- resentative actions under this new regime were imple- mented in addition to existing instruments. Therefore, representative actions under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act remain in force. Also, the Austrian- type mass action can still be utilised by consumers.
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AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
the price paid. As a result of such a decision, consum- ers directly benefit from the redress specified in the decision without having to file a separate lawsuit. (For more on qualified entities, see 1.3 Implementation of the EU Collective Redress Regime ). Sample Lawsuits Section 502, paragraph 5, line 3 of the Code on Civil Procedure provides for sample lawsuits, with which certain associations (the same entitled to representa- tive actions) can file a case on behalf of an individual and – irrespective of the amount in dispute – bring it before the Supreme Court. The prerequisite is that the individual has assigned their claim to the association. 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 “precedent”. Austrian-Type Mass Claims To deal with mass claims, legal practice established “Austrian-type mass claims”. The aim was to create a functional equivalent to class actions. The Austrian-type mass claim is based on the concept that claims may be assigned for collection ( Inkassoz- ession ) and that a claimant may file a single lawsuit to deal with multiple claims it has against the defendant (Section 227 of the Code on Civil Procedure). Thus, the entity that has been assigned claims from different individuals can raise all these individual claims (as a bundle of claims) against a single defendant with one lawsuit in the same proceeding. However, the entity is not regarded as consumer. Potential claimants who assign their rights to this entity, lose the privileges as consumer. The bundling of many claims is more cost-efficient than individual lawsuits because the costs are pro- portionately lower if the amount in dispute is higher. Moreover, a higher amount in dispute facilitates third- party financing (see 3.9 Funding and Costs ). Joinder of Individual Proceedings Under specific circumstances, several similar actions arising out of the same set of facts can be brought against the same defendant in one single lawsuit. However, for a large number of claimants (several
thousands) this tool is simply impractical. Therefore, in practice, the assignment of claims to one single claimant, who then proceeds to file the lawsuit, is typi- cally the preferred option. Finally, a court before which several similar, separate actions against the same defendant are pending has the possibility to join these proceedings if joining them promotes procedural efficiency (Section 187 of the Code on Civil Procedure). The effect of the joinder of several legal disputes consists solely of the several cases being heard together and, if the joinder is not rescinded, decided together. However, the two proceedings retain their independ- ence in substance – ie, the setting aside of the judg- ment regarding one claim by the appeal court does not mean a setting aside with regard to the other (joined) claim. 2.2 Scope of Areas of Law to Which the Legislation Applies Representative Actions Under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act, the right to bring a representative action is available to certain associations, for example the Chamber of Commerce, the Chamber of Labour, the Federation of Trade Unions, the Chamber of Agriculture and the Association for Consumer Information (Section 29 of the Consumer Protection Act, and Section 14 of the Unfair Competition Act). In practice, mainly the Asso- ciation for Consumer Information and the Chamber of Labour have made use of this tool. By means of a representative action, the following claims can be asserted: • claims for injunctive relief against the use of unlaw- ful general terms and conditions; • claims for injunctive relief against certain unlaw- ful business practices in dealings with consumers; and • claims for the removal of a situation that is contrary to fair competition – eg, the removal of unlawful general terms and conditions from business prem- ises or the sending of letters to inform affected
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AUSTRIA Law and Practice Contributed by: Bettina Knoetzl and Dr Kirstin McGoldrick, KNOETZL
customers that certain clauses of the terms and conditions do not apply. However, under Sections 28 ff of the Consumer Pro- tection Act and Section 14 of the Unfair Competition Act no claims for damages can be asserted by means of a representative action. In contrast to this and as a significant change in Aus- trian civil procedure law, the new regime on collective redress implemented in July 2024 provides for claims not only for injunctive relief but also for redress. Such actions can only be brought by the qualified entities. The Austrian Federal Economic Chamber, the Fed- eral Chamber of Labour for Domestic and Cross-Bor- der Representative Actions, as well as the Austrian Chamber of Agricultural Workers, the Presidential Conference of the Austrian Chambers of Agriculture, the Austrian Trade Union Federation, the Association for Consumer Information and the Austrian Seniors’ Council for Domestic Representative Actions are legally recognised as qualified entities. In addition, legal entities that meet the special requirements can be recognised as qualified entities by the Federal Car- tel Prosecutor. Moreover, organisations that are rec- ognised as qualified entities in another member state of the European Union and that are entered in a list to be published by the European Commission are also entitled to bring actions before Austrian courts. With an action for redress, a qualified entity asserts claims directly for consumers in a single procedure. The judgment is therefore directly effective for (or against) the consumers involved in the proceedings. Sample Lawsuits A sample lawsuit can be brought by the same asso- ciations as the representative actions (Section 502, paragraph 5, line 3 of the Code on Civil Procedure, and Section 29 of the Consumer Protection Act). Since the sample lawsuit is based on assignment, only those claims can be asserted that can be assigned (Austrian Supreme Court 8 Ob 123/09k). Typical civil
law actions, such as for damages or warranty, can usually be assigned. A contractually agreed prohi- bition on assignment that prevents an assignment of consumers to an association for the purpose of legal action under Section 29 of the Consumer Pro- tection Act is considered severely disadvantageous and immoral and, therefore, void (recently Austrian Supreme Court 8 Ob 59/20i). Furthermore, the assigned claims must fall within the area of responsibility of the association bringing the action – eg, the Association for Consumer Information may bring a sample lawsuit for an individual consum- er claim which has been assigned to the Association (Austrian Supreme Court 4 Ob 208/08d, Section 502, paragraph 5, line 3 of the Code on Civil Procedure). Austrian-Type Mass Claims Austrian-type mass claims can be used for all kinds of claims that can be assigned. However, they must fulfil certain procedural requirements (see 3.1 Mechanisms for Bringing Collective Redress/Class Actions ). In practice, they are mainly used by consumer protection organisations. As mentioned above, typical civil law actions, such as for damages or warranty, are general- ly assignable. A contractual prohibition of assignment that does not concern an assignment under Section 29 of the Consumer Protection Act may be effective if it is not considered to be severely disadvantageous or immoral for other reasons (see recently Austrian Supreme Court 7 Ob 68/21g). Judicial Joinder of Proceedings Judicial joinder of proceedings for the purpose of pro- cedural efficiency is, in principle, possible for all types of cases pending at the same court under the same procedural rules (Section 187 of the Code on Civil Procedure). 2.3 Definition of Collective Redress/Class Actions There is no statutory definition of collective redress/ class action in Austrian law.
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3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions Representative and Collective Actions Claims for injunctive relief and for redress are to be asserted in “normal” contradictory proceedings according to the general rules of the Code on Civil Procedure. The labour and social courts are responsi- ble for representative actions in the field of labour law. For collective actions brought by a qualified entity under the newly implemented regime on collective redress, on trial court level, the Commercial Court of Vienna has exclusive jurisdiction regardless of the value of the claim (Sections 620 Code on Civil Pro- cedure). The Commercial Court of Vienna also has exclusive jurisdiction over provisional injunctions in these matters. Changing this court venue by agree- ment of the parties is not permissible, making this a mandatory court venue. Entrepreneurs who are domiciled in an EU member state may be sued in Austria pursuant to Article 7 (3) of the Brussels I Regulation (Austrian Supreme Court 6 Ob 264/02w). When seeking injunctive relief, it is highly recommend- ed, yet not obligatory, to request the entrepreneur concerned to acknowledge its obligation to cease and desist and to promise a penalty in the event of a further infringement before filing the lawsuit. If the company makes a corresponding declaration, there is no longer any legal interest in bringing an action. Thus, the claim would have to be dismissed. Sample Lawsuits The same procedural rules apply to sample lawsuit as to individual actions. However, it should be noted that the assignment of a consumer claim does not transfer the special jurisdiction for consumers under Article 18 of the Brussels I Regulation (ECJ, C-498/16, Schrems/ Facebook), nor do sample lawsuits interrupt time-bar, unless otherwise agreed.
Austrian-Type Mass Claims: Jurisdiction The jurisdiction for Austrian-type mass claims derives from the jurisdiction for individual claims bundled in the mass lawsuit. However, the mechanism of bun- dling individual claims may change jurisdiction with regard to: (i) the amount in dispute; and (ii) the special jurisdiction for consumer matters. The amount in dispute In general, a claim may be brought as part of a “bundle of assigned claims” before the same court only if that court has local jurisdiction over this claim (Article 227, paragraph 1 of the Austrian Court on Civil Procedure). The requirements for jurisdiction are, in this regard, no different than if the assigned claims were asserted by the originally entitled parties (Austrian Supreme Court 2 Ob 130/20m, 2 Ob 21/17b). A more generous regulation applies regarding the “value limit jurisdiction”. In general, the district courts have jurisdiction for actions with an amount in dis- pute of less than EUR15,000. If the amount in dispute exceeds EUR15,000, the regional courts have juris- diction at trial court level. Similar claims of different creditors that have been assigned to the claimant are not aggregated for the purpose of determining the value limit jurisdiction. However, if one of the assigned claims exceeds EUR15,000 and is therefore subject to the jurisdiction of the regional court, the assigned claims below EUR15,000 can also be included in the mass claim and are processed by the regional court (Section 227, paragraph 2 of the Austrian Code on Civil Procedure). Special jurisdiction for consumer matters The Austrian-type mass claim has one significant disadvantage: If consumer claims are assigned to a specific entity, such as the Austrian Association for Consumer Information, the special jurisdiction for consumer claims is not transferred with the assign- ment (ECJ, C-498/16, Schrems/Facebook). Therefore, the claimant bringing an Austrian-type mass claim for consumers cannot invoke this jurisdiction. Austrian-Type Mass Claims: Pre-Litigation Mechanisms In order to bring an Austrian-type mass claim, the claimant (eg, the Association for Consumer Infor-
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mation) usually publicly calls on the individuals con- cerned to assign their claims to the claimant. The assignments are handled via forms on which the indi- vidual claims must be specified in the same detail as would be necessary for an individual lawsuit. 3.2 Overview of Procedure Representative Cease-and-Desist Actions Representative actions under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act are to be asserted in “normal” con- tradictory proceedings according to the general rules of the Code on Civil Procedure. Some special provisions of the Unfair Competition Act apply, namely: • special provisions that facilitate the granting of an interim injunction (Section 24 of the Unfair Compe- tition Act); • special provisions regarding the publication of judgments (Section 25, paragraphs 3-7 of the Unfair Competition Act); and • the possibility to exclude the public due to endan- gering business or trade secrets (Section 26 of the Unfair Competition Act). Collective Redress Under the New Regime Collective actions brought under the newly imple- mented regime are also to be asserted in “normal” contradictory proceedings according to the general rules of the Code on Civil Procedure. Additionally, with regard to representative actions for redress, Sections 624 ff Code on Civil Procedure provide as follows. • In a first step, the court has to decide whether the general and specific requirements for a representa- tive action for redress are met (eg, the number of consumers, Section 626 Code on Civil Procedure). The decision is then published in the Edicts Archive ( Ediktsdatei ). It can be appealed. • In a potential second step, the court may decide on the motion for a declaratory judgment filed by the qualified entity or the defendant. This decision can also be appealed. The Austrian legislature apparently assumes (or rather hopes) that a final and binding decision will, in practice, lead to a
global settlement of all or, at least, a vast majority of all collected claims. • In a third step, the court has to finally decide on the individual claims of the consumers, possibly based on the decision regarding the declaratory judgment motion. Sample Lawsuit The sample action is characterised by the fact that there is no value limit for the admissibility of an appeal to the Supreme Court (see 3.11 Remedies ). Austrian-Type Mass Claims The Austrian-type mass claim as a bundle of claims is based on the propriety of the “objective aggregation of claims” ( objektive Klagenhäufung , Section 227 of the Code on Civil Procedure). Objective aggregation of claims means that the claimant can assert several claims against the same defendant in one action. According to the wording of Section 227 of the Code on Civil Procedure, claims may be bundled regard- less of whether there is a special connection between them. Contrary to this wording, an obiter dictum of the Supreme Court from 2005 indicates that a certain con- nection is nevertheless required (Austrian Supreme Court 4 Ob 116/05w obiter; obiter dictum is the court’s expression of opinion uttered in a judgement, but not essential to the decision). Accordingly, all claims must be based on an “essentially similar cause of action” and concern “essentially identical issues of fact or law”. However, the same decision indicates that the connection need not be too close and that only an arbitrary set of claims is to be rejected. Literally, the Supreme Court states that the necessary connection is not fulfilled “in the case of an arbitrary ‘collection’ of completely different claims in one proceeding” (Aus- trian Supreme Court 4 Ob 116/05w obiter). After that decision, the Supreme Court has always considered the necessary connection to be given. Famous Austrian law professors therefore predomi- nantly assume that the Supreme Court only wants to prohibit the completely arbitrary bundling of claims. Nevertheless, defendants may claim lack of admis- sibility and lack of jurisdiction for individual claims with an amount in dispute lower than EUR15,000 by
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invoking the decision from 2005. This may lead to long interlocutory disputes on the admissibility of the Austrian-type mass claim. 3.3 Standing Representative Actions and Sample Lawsuits Representative actions under Sections 28 ff of the Consumer Protection Act and Section 14 of the Unfair Competition Act and sample lawsuits can only be brought by certain associations, for example: the Chamber of Commerce, the Chamber of Labour, the Federation of Trade Unions, the Chamber of Agricul- ture or the Association for Consumer Information. In practice, the Association for Consumer Information and the Chamber of Labour have predominantly made use of the representative action and the sample law- suit. Collective Actions Under the New Regime Collective actions brought under the newly imple- mented regime on collective redress are to be brought by a “qualified entity”. All Austrian organisations that had been entitled to seek collective redress in the form of injunctive relief in the past are “qualified enti- ties”. 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 ). In addition, organisations that are recognised as “qualified 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. Austrian-Type Mass Claim Contrary to representative actions and sample law- suits, an Austrian-type mass claim can theoretically be brought by anyone to whom claims can be assigned under civil law rules. In practice, it is mainly used by the Association for Consumer Information and the Chamber of Labour and certain associations ( Vereine ). 3.4 Class Members, Size and Mechanism – Opting In or Out Section 624, paragraph 1 Code on Civil Procedure provides for an opt-in model for representative actions for redress, requiring a minimum number of 50 con-
sumers to participate in the initial lawsuit. Hence, qualified entities must represent at least 50 individual consumers at the time of filing the lawsuit in order to pursue redress. It is possible that more consumers join the action at a later point in time (see 3.5 Joinder ). Consumers must have actively opted in to participate in the proceedings, and their claims must be based on “essentially similar factual circumstances” (Section 5, paragraphs 2 and 3 Qualified Entities Act and Section 624, paragraphs 1 Code on Civil Procedure). 3.5 Joinder “Joining” a Collective Action for Redress Consumers can join a representative action for redress if their claim is based on essentially similar factual circumstances and the same legal questions are relevant. Once a representative action for redress is authorised by the court, consumers can join the proceedings (opt-in) within three months by applying to the qualified entity. If the latter agrees for the con- sumer to join, the qualified entity has to file a submis- sion with the court. The notice must fully specify the legal basis of the claim and assure that the claim has not been and will not be asserted either domestically or abroad. Once a consumer joins, their claim is considered pend- ing (lis pendens), and the court’s decision extends to the consumer’s claim. Joining is not possible if the claim has already been asserted elsewhere. With- “Joining” an Austrian-type mass claim is done prior to the filing of the action by the entitled individuals assigning their claims to the “mass claimant” for col- lection. With the assignment for collection, however, the assignor does not actually join the action; rather, they assign their claim to the claimant and are not themselves a party to the proceedings. Recent case law clarified that under certain conditions it is also possible that, after filing a lawsuit, further claimhold- ers assign their claims to the claimant and the claim- ant asserts these claims by extending its lawsuit. The prerequisite for this is that the extension of the law- drawal from the joinder is not permitted. “Joining” an Austrian-Type Mass Claim
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suit avoids further litigation without disproportionately complicating or delaying the ongoing litigation and that the new claims are not yet time-barred at the time of assertion (Austrian Supreme Court 3 Ob 149/21i). For the procedure of assignment see 3.1 Mechanisms for Bringing Collective Redress/Class Actions . General Rules on Third-Party Joinders In general, a third party may join the proceedings on the side of the claimant or defendant if it has a legal interest in the success of the respective party. Legal interest is a given if the decision will have a direct legal effect on the third party’s position – eg, an insurer may join proceedings of an insured party against the damaging party. However, the fact that a potential claim is based on the same facts subject to the pending proceeding does not justify a third-party joinder. For example, if defective products are sold and several persons have been injured as a result, one injured party cannot join the proceedings of another injured party, even though the same preliminary question arises for both as to whether the product was defective. A “de-facto-joinder” in such a case is only possible through an assignment and an “Austrian-type mass claim”. Moreover, if such claims are pending at the same court, the court may join proceedings to be heard together (for both, see 3.1 Mechanisms for Bringing Collective Redress/Class Actions ). 3.6 Case Management Powers of Courts Interruption of Proceedings due to Other Pending Proceedings If the decision of a legal dispute depends in whole or in part on a legal relationship that is the subject of other court proceedings, the deciding court may inter- rupt the proceedings until a final decision has been rendered in these other proceedings (Section 190 of the Code on Civil Procedure). This provision primarily refers to the case where another proceeding is pending between the same par- ties. However, it can also be relevant if many individual claims of the same kind are pending. In these cases, too, the court may, if it appears necessary with regard
to procedural efficiency, interrupt a proceeding until another proceeding has been decided. For example, in the “Dieselgate” cases, many Austrian courts interrupted proceedings until the ECJ had ruled on the question of jurisdiction in one of these proceed- ings (see – eg, Austrian Supreme Court 4 Ob 119/19g) and subsequently followed the decision of ECJ (see 3.1 Mechanisms for Bringing Collective Redress/ Class Actions ). The interruption in these cases is at the discretion of the court. In its decision, the court must consider that the interruption should lead to an improvement in procedural efficiency (Regional Court Vienna 44 R 24/10w). The desire to reach decisions that are con- sistent with each other does not alone justify an inter- ruption (Higher Regional Court Vienna 1 R 73/09a). An interruption can therefore be envisaged if the other proceedings are likely to be terminated in the near future and extensive and costly hearings of evidence can be avoided in the interrupted proceedings. Joining of Proceedings by the Court If several similar actions against the same defendant are pending before the same court, the court may join these proceedings for a joint hearing if this is likely to simplify or accelerate the decision (Section 187 of the Code on Civil Procedure, see 2.1 Collective Redress and Class Action Legislation ). Even if the connection objectively serves procedural efficiency, it is usually still associated with additional work for the respective judge. At the Commercial Court of Vienna, certain rules to enhance the attrac- tiveness of this tool relating to allocation of cases between the judges have been implemented. 3.7 Length and Timetable for Proceedings Average Duration Proceedings before Austrian courts are generally effi- cient. In civil proceedings, most procedural steps are foreseen to be taken within two to four weeks of each other. The average duration of proceedings is one to one-and-a-half years in the first instance and from nine months to one year in the appellate stage.
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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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