AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
4.5 Applications for Security for Defendant’s Costs If a foreign plaintiff is not an EU national and is not domiciled within the EU, the defendant may, in many cases, request an order compelling the plaintiff to secure the defendant’s costs (the same applies for parties that do not have a seat within the EU). No order for security is granted in these cases if: • it would be contrary to certain bilateral or interna- tional conventions; • a cost award could be enforced in the country where the plaintiff has its domicile/seat; or • the plaintiff has sufficient assets in the form of immovable property or registered rights in rem. 4.6 Costs of Interim Applications/Motions In general, the “loser pays” principle applies. Depend- ing on the subject of the interim motion, this princi- ple applies for final and binding decisions upon the interim motion. Alternatively, the decision on which party bears the costs is made dependent upon the outcome of the final decision in the main proceedings. In general, courts decide which party is required to pay costs along with their dispositive decision regard- ing the main claim. Other decisions may include an order on costs if the obligation to pay costs does not depend on the out- come of the proceedings (eg, dismissal of a third- party intervention or a challenge to a judge or expert witness on the basis of bias). 4.7 Application/Motion Timeframe There is no fixed time limit within which a court must deal with an application. Parties are nevertheless pro- tected against unreasonable delay by Article 6 of the European Convention on Human Rights and Article 47 on the European Charter of Human Rights, which guarantee an impartial tribunal within reasonable time. The court is thus required to provide prompt and effective action. If a court does not render a decision or order within reasonable time, the interested party may file a request to establish a deadline for the court.
Early Judgments on Procedural Grounds Usually, a defence on procedural grounds must be raised before pleading on the merits of the case. A significant number of procedural grounds are disre- garded by the court if raised later. Some very severe procedural defects can also be raised at a later stage or can be observed by the court on its own without a motion. For example, directly after receiving the claim, the court must determine and verify its jurisdiction in limine, even before service of the claim on the defend- ant. If the court lacks jurisdiction, the claim is dis- missed immediately – before trial. 4.3 Dispositive Motions The trial begins with a preparatory hearing. Most of the dispositive motions are brought beforehand and are discussed in such a hearing. They may be based on procedural grounds – such as a failure of juris- diction or improper venue, or on substantive grounds such as the claim being time-barred, or the “inconclu- siveness” of the complaint. A claim can be dismissed by the court during this first preparatory hearing, at which point no evidence will have been taken. 4.4 Requirements for Interested Parties to Join a Lawsuit Legal Interest A third party may join the proceedings on the side of the plaintiff or defendant if it has a legal interest in the success of that party. Legal interest is established if the decision will have a legal effect on the third party’s position (eg, an insurer may join proceedings of an insured party against the damaging party). Procedural Aspects In practical terms, a joinder is effected by written application of the third party that must be granted by the court. Admission of the joinder may be opposed by the parties, but this opposition can be overruled by the court. A third party may join the proceedings at any stage, even in appeal proceedings, up to the moment when the judgment becomes final.
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