AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
2.4 Post-Judgment Procedures for Determining Defendants’ Assets
package” must alert the enforcement court if they find – in the course of identifying assets – that the debtor is evidently insolvent. In these cases, the enforcement of already granted measures shall be stayed, unless assets have already been attached in the creditor’s favour or statutory liens exist. After giving both the debtor and the creditor(s) an opportunity to be heard, the enforcement court shall decide on the insolvency of the debtor. Once this decision declaring insolvency has become final and is no longer subject to appeal, it is published in the Insolvency Register. The creditor may then initi - ate insolvency proceedings. The proceedings are gov - erned by the specific provisions that apply in insol - vency proceedings, which aim to ensure fair allocation of the assets to the creditors. 2.3 Costs and Time Taken to Enforce Domestic Judgments In general, enforcement proceedings are concluded quickly and effectively by Austrian courts. The authori - sation process takes place ex parte and a decision is often rendered within a week or two. Should the deci - sion authorising enforcement be appealed, it may take between two and six months to obtain a final decision. Regarding the actual enforcement process, much depends on the measure chosen; foreclosure and the auction of real estate will take longer than an attach - ment of earnings. The costs for enforcement comprise lawyers’ fees, a possible advance to cover the costs of actual enforce - ment measures (such as obtaining an appraisal of the value of real estate to be auctioned or the fees of an administrator who receives a percentage of the recov - ered amounts) and court fees. Court fees for enforcement amount to approximately 0.25% to 0.3% of the amount to be enforced. Should the decision on enforcement be subject to appeal, the court fees are approximately 0.4% to 0.45%. Should a further recourse to the Austrian Supreme Court – which is limited – be permissible, the court fees are approximately 0.5% to 0.6% of the amount to be enforced.
All available means to identify defendants’ assets are described in 1.1 Options to Identify Another Party’s Asset Position . 2.5 Challenging Enforcement of Domestic Judgments The decision to grant (or deny) enforcement is subject to appeal, which must be raised within 14 days of service of the decision on the party. This ensures the debtor’s right to be heard because the authorisation of enforcement proceedings is generally granted ex parte. Overall, Austrian enforcement law is “creditor-friend - ly”, which is also reflected in the fact that legal rem - edies against decisions of the enforcement court do not generally have a suspensory effect. However, it is possible to request a stay of enforcement measures together with the appeal. There are three actions that lead to the suspension of enforcement proceedings: • opposition on substantive grounds ( Opposition- sklage ) (Section 35 of the EA) – if the debtor asserts circumstances that occurred after the rendering of the judgment on the main claim that annul the substantive claim or at least lead to postponement of enforcement (eg, full performance, deferment of performance); • opposition on formal grounds ( Impugnationsklage ) (Section 36 of the EA) – if the debtor asserts cir - cumstances according to which the prerequisites for enforcement are not (yet) given (eg, the perfor - mance period determined in the judgment on the main claim has not lapsed); and • third-party action ( Exzindierungsklage ) (Sec - tion 37 of the EA) – if, in fact, the object against which enforcement measures are directed does not belong to the debtor, the entitled third party can obtain a declaration of inadmissibility of the enforcement measure (which is then repealed) by showing its entitlement.
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