AUSTRIA Law and Practice Contributed by: Andreas Eustacchio, EUSTACCHIO
2.10 Courts in Which Product Liability Claims Are Brought In Austria, product liability cases are brought before the ordinary civil courts, usually the district courts or regional courts, depending on the amount in dispute and subject matter competence; higher instances are the courts of appeal and ultimately the Supreme Court (OGH for Oberster Gerichtshof ). All civil product liabil - ity cases are decided by professional judges only. The Austrian system does not use juries in civil matters. 2.11 Appeal Mechanisms for Product Liability Claims First instance judgments (district or regional court) can be appealed to the next higher court, usually within four weeks of service of the written judgment. A further appeal to the Supreme Court (Revision) is only possible if the statutory admissibility criteria are met (in particular a legal question of fundamental importance), a threshold that is relatively difficult to overcome in practice. There are no special or shorter deadlines or proce - dures for product liability cases; they are treated like any other civil matter. 2.12 Defences to Product Liability Claims Under the current Austrian Product Liability Act (PHG), defendants can rely on the classical set of defences derived from the 1985 EC-Product Liability Directive, in particular that they did not put the product into cir - culation, that the defect did not exist when the product was put into circulation, that the defect results from mandatory legal provisions or that, given the state of scientific and technical knowledge at the time, the defect could not have been discovered (development risk defence). The new EU Product Liability Directive 2024/2853 largely preserves this structure but sets out a more detailed catalogue of defences in Article 11 and at the same time significantly narrows them in practice, especially for digital products. It links the development risk defence to the period during which the product is within the manufacturer’s control and excludes exoneration where defective -
judicial control and proportionality, but it will not cre - ate a broad, adversarial discovery regime. Access to evidence will remain within the existing judge-driven civil procedure framework. 2.8 Rules for Expert Evidence in Product Liability Cases Expert evidence ( Gerichtssachverständige ) in product liability cases is governed by the general rules of the Austrian Code of Civil Procedure (ZPO). Courts usually appoint independent court experts to assess techni - cal and medical issues. Party-appointed experts are treated as submissions, not as court evidence, and there is no separate expert evidence regime specific to product liability. 2.9 Burden of Proof in Product Liability Cases See 2.1 Product Liability Causes of Action and Sources of Law . The claimant bears the burden of proof and must satisfy the court, on the balance of probabilities, that a defect existed and that this defect was more likely than not the cause of the damage. Under the new EU Product Liability Directive, this basic allocation is maintained, but explicitly requires that the overall burden on the claimant is not excessive, especially in complex technological contexts (soft - ware, AI, interconnected systems). The new Directive introduces a rebuttable presumption of defectiveness in favour of the claimant, where: • the defendant fails to disclose relevant evidence ordered by the court; • the product or its safety is in non-compliance with mandatory safety requirements; or • the damage is of a kind “typically consistent” with a defect in the product. Presumption of causation applies where: • the defect and the type of damage are established; and • the damage would typically be caused by such a defect. These presumptions shift the burden to the defendant to rebut them; if the defendant cannot do so, defect and/or causation are deemed proven.
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