AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
3.8 Requirements for Cost Estimate There is no legal requirement to provide clients with a cost estimate of the potential litigation at the outset. Nevertheless, in practice, clients will often ask counsel to provide one. It is advisable to address the issue in a timely fashion because, upon filing its claim, the plaintiff must pay an advance on the court fees that are calculated on the basis of the amount in dispute.
unfair competition practices (so-called representative actions). With this instrument, the Austrian legislature implemented the Directive (EC) 98/27 on injunctions for the protection of consumers’ interests. Austrian-Type Mass Claims Until July 2024, Austrian law precluded representative actions. Only a party with a claim in substantive law was entitled to be a plaintiff in proceedings. Conse- quently, in cases of mass claims, an “Austrian-type mass claims procedure” became established by practice. This concept enables claims that may be assigned for collection to be filed, and a plaintiff may file a single lawsuit to deal with multiple claims it may have against the defendant. Thus, the party that has been assigned all claims can raise all such claims against a single defendant in the same proceeding. Collective Redress for Consumers On 18 July 2024, the Act on Qualified Entities for Col- lective Redress (the “Qualified Entities Act”), along with amendments to the Austrian Code on Civil Pro- cedure, the Consumer Protection Act, the Court Fees’ Act and the Lawyer’s Fees Act came into force, pro- viding significant changes to collective redress under Austrian law. Under this newly implemented regime, so-called “qualified entities” are entitled to bring col- lective actions. At the heart of the new regime is the “representative action for redress”. This is a novelty in Austrian civil procedural law. It aims to provide effec- tive means to not only end unlawful practices threat- ening or harming the interests of a large number of consumers but, moreover, to provide redress in any form. Consumers can participate in a representative action for redress if they actively join (opt in). Once at least 50 consumers have joined, the qualified entity can assert claims for all consumers who have joined. Upon a redress decision, the company is required to extend redress to the affected consumers, depend- ing on the case, in the form of compensation, repair, replacement, price reduction, contract termination, or reimbursement of the price paid. As a result of such a decision, consumers receive a direct benefit from the redress specified in the decision without having to file a separate lawsuit.
4. Pre-Trial Proceedings 4.1 Interim Applications/Motions
There are only a few, specified applications available that may be decided before a trial takes place, such as: • a request for injunctive relief (to secure future enforcement or to safeguard evidence, see 6. Injunctive Relief ); • an application of security for costs; • an application for legal aid; • an application to dismiss the claim for lack of juris- diction; and • the intervention of a third party. Otherwise, Austrian procedural law does not provide for pre-trial proceedings as are known, for example, in Anglo-American jurisdictions. Before a substantive hearing of the claim takes place, an early judgment on some of the issues in dispute or to dismiss the claim is possible, particularly with respect to procedural grounds for dismissal, such as lack of jurisdiction or improper venue. Also, interim and partial judgments are possible, but only during the main proceedings. Time-Barred Claims An important example of a pre-trial dispositive motion is one in which a party requests an early dismissal because the claim is time-barred. If a claim is time- barred, the court may decide only this question with- out going into the merits of the matter. 4.2 Early Judgment Applications Early, Interim and Partial Judgments
19 CHAMBERS.COM
Powered by FlippingBook