AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
need not be specified), and a subsidiary asset disclo - sure statement from the debtor (Section 47 of the EA) if the other two enforcement measures did not suffice to satisfy the creditor’s monetary claims. Creditors can also apply for an “extended enforcement package”, whereby an enforcement administrator is tasked with tracing and liquidating the debtor’s assets and obtain - ing a statement from the debtor disclosing their assets (Section 47 et seq of the EA). Freezing Orders If a creditor has already obtained a (first instance) court decision that has not yet become final and bind - ing (because it is subject to an appeal by the debtor), Austrian law provides for “preliminary enforcement” to secure monetary claims ( Exekution zur Sicherstellung ) (Section 370 et seq of the EA). Such protective meas - ures are, however, only available based on a decision rendered by an Austrian court or a court of a member state of the EU. Prior to a court decision, freezing orders and injunc - tions are available as “interim measures” ( einstweilige Verfügungen ) (Section 378 et seq of the EA). Moreo - ver, as Austria is a member state of the EU, its courts may issue a European Account Preservation Order (based on Regulation (EU) No 655/2014 of the Euro - pean Parliament and of the Council of 15 May 2014) to freeze bank accounts within the EU. To prevent the enforcement of a future court decision from becoming considerably more difficult or even impossible, a party may request interim relief in the course of pending proceedings or before filing a claim. In the latter case, a short period (often one to three months) is usually set by the court as the deadline for initiating main proceedings to decide upon the claim that is to be secured. If no main proceedings are initi - ated within the given period, the interim relief will be lifted by the court. Although it is not necessary to fully prove the underly - ing claim, the requesting party will be required to show that its claim is sufficiently substantiated. If in doubt, courts will order the party requesting interim relief to post security that serves to mitigate against loss by the opposing party should it incur damages based on an interim measure that is not ultimately justified.
Interim measures to secure monetary claims require the requesting party to plausibly show “subjective endangerment” of the claim based on specific actions of the opposing party. This subjective endangerment is a high threshold and requires the party to dem - onstrate to the court that, if the interim relief is not granted, the opposing party will ultimately undermine the outcome of the main proceedings in the meantime by taking steps to hamper enforcement by damaging, destroying, hiding or otherwise dissipating assets. In limited cases, it is sufficient to show “objective endangerment”. This is established, in particular, if enforcement would otherwise be outside the EU or in states where international treaties ensuring enforce - ment are not in place. Interim measures are also available to secure non- monetary claims, such as the performance of specific acts and obligations to cease and desist. For such claims, it suffices to demonstrate to the court that there will be “objective endangerment”, such as immi - In general, if the claim is already subject to ongoing main proceedings, the court competent for the main proceedings also has jurisdiction over requests for interim relief. In other cases, the jurisdiction lies with the competent district court ( Bezirksgericht ) at the opposing party’s domicile (primary jurisdiction) or – if no Austrian domicile is available – at the location of the asset that is subject to the interim injunction, at the place where the act of enforcement will take place, or – in cases of garnishment orders – at the third party’s domicile. In many cases, Austrian courts will decide on an appli - cation for interim relief within a few days. In more com - plex cases, it may take a week or two until a decision is rendered. Upon application, the court may issue its decision ex parte if the requesting party convinces it that the goal of the relief sought could be frustrated otherwise. nent violence or irreversible harm. Procedure to obtain interim relief Each party may file legal remedies against the court’s decision on the interim injunction within 14 days after
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