AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
lic authority, certification as a European Enforcement Order is possible. Otherwise, an extrajudicial set- tlement is simply treated as a contract and cannot be directly enforced. Claims arising from a disputed extrajudicial settlement agreement must be pursued before a competent court. 8.4 Setting Aside Settlement Agreements Revocation Clauses It is general practice to conclude a judicial settle- ment subject to a revocation clause. Such clauses enable legal representatives to conclude a settlement and create the possibility of consulting their client, and it provides the parties with a period for reflection to take care of the necessary internal approvals, for instance by the supervisory board or by the insurer of that claim. Limitations to Challenges The substantive reasons to challenge settlement agreements are significantly fewer than those avail- able to challenge other agreements, as they are lim- ited to cases of severe mistake or deceit. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant A successful litigant may obtain a judgment: • ordering performance; • enjoining a certain action; • creating or altering a legal status; or • ordering declaratory relief. A performance judgment may order, for example: • the payment of an amount of money; • the transfer of a certain object; or • the submission of a certain declaration. A judgment for injunctive relief orders a party to stop or desist from a certain act. A divorce is an example of a judgment that alters legal status. Declaratory judg- ments may be obtained regarding the existence of a certain legal relationship or a certain claim.
Civil courts limit their decisions to the relief requested by the plaintiff. 9.2 Rules Regarding Damages Monetary and Declaratory Judgments There are no special rules regarding awards in damage proceedings. The most important forms of awards for damages are monetary judgments (ordering the pay- ment of money) and declaratory judgments regard- ing foreseeable future damages. For such damages, declaratory judgments may be necessary to avoid the expiration of a limitations period. No Punitive Damages Austrian tort law is based on the principle of compen- sation and provides for damage claims only insofar as the plaintiff suffers actual damages. Punitive damages are not available. Contractual penalties are neverthe- less allowed, and intellectual property law provides for lump sum damages, which are considered to be partly punitive in nature. Moreover, the European Court of Justice has ruled in connection with the “Diesel” mat- ters that, under certain circumstances, a compensa- tion of 5% to 15% of the purchase price of the car should be paid by the car producer to the car owner independent of actual damage. In 2023, the Austrian Supreme Court adopted this ruling, in essence grant- ing punitive damages. There are no general rules that limit the maximum amount of damages. However, some provisions of substantive law establish maximum amounts for par- ticular types of damages, particularly in cases of strict liability. 9.3 Pre-Judgment and Post-Judgment Interest Amount of Interest Under Austrian civil law, the debtor is required to com- pensate the creditor for the damage caused by any delay of payment, together with legal interest. If not otherwise agreed by the parties, legal interest amounts to 4% per annum. Between entrepreneurs it amounts to 9.2 percentage points above the base interest rate if the default is attributable to the debtor’s negligence. As a rule, the base rate applicable is the base rate that was in effect on the first day of the relevant half year (1 January for the first half and 1 July for the second
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