AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
the respective party has been served with the court’s decision. To protect parties from the adverse consequences of an interim measure, Austrian law imposes liability on the requesting party for damages incurred as a result of an unjustified interim injunction. In addition, the court may impose a fine on the requesting party if it transpires that the request was baseless and filed wilfully (ie, with malintent). Austrian courts decide by means of determinations ( Beschlüsse ) and judgments ( Urteile ). Determinations generally deal with procedural issues and order meas - ures, and can dispose of a claim if it is rejected for procedural reasons. Judgments are decisions on a claim based on its merits. Generally, a judgment will finally decide on the subject matter of a dispute in its entirety. However, under vari - ous circumstances (usually related to the complexity of the case), the courts may decide on the matter in several steps and issue interlocutory, partial or sup - plementary judgments. 2. Domestic Judgments 2.1 Types of Domestic Judgments An interlocutory judgment ( Zwischenurteil ) (Section 393 of the CCP) ultimately serves to structure pro - ceedings into various phases by first deciding on an issue that needs to be clarified in order for a final deci - sion to be rendered. In most cases, the aim will be to determine whether a claim is, in principle, justified on the merits (without review of quantum). There are two types of interlocutory judgments that must be distin - guished in terms of their binding effect: • a “simple” interlocutory judgment, which only has binding effect on the court itself within the pro - ceedings; and • a “declaratory” interlocutory judgment upon the application of a party, which is a genuine declara - tory judgment and therefore has binding effect between the parties.
In both cases, an interlocutory judgment is not enforceable. A partial judgment ( Teilurteil ) (Section 391 of the CCP) may be employed if multiple (unrelated) claims (or claims and counterclaims) are raised within one action or if the claim is otherwise severable. A partial judg - ment can then, for example, be rendered regarding: • individual (counter)claims that are ready for deci - sion; or • parts of a (counter)claim that have been acknowl - edged by the defendant. A partial judgment has the effect of a final judgment and is fully enforceable. A supplementary judgment ( Ergänzungsurteil ) (Section 423 of the CCP) is rendered upon the application of a party if the court failed to initially deal with all claims raised in their entirety or failed to render a decision on costs. A supplementary judgment has the effect of a final judgment and is fully enforceable. Judgments can also be distinguished and have differ - ent effects based on the nature of the relief granted. A performance judgment ( Leistungsurteil ) contains a performance order that can relate to the performance of payment or specific performance. Specific per - formance includes an order of positive action by the defendant, an order to the defendant to tolerate an action of the plaintiff, or an order to the defendant to cease and desist. A performance judgment is always enforceable. However, attention must be paid to for - mulate the request so that relief shall be granted in a manner that is clear and specific as to what the performance shall be. A constitutive judgment ( Rechtsgestaltungsurteil ) directly affects the rights of the parties and changes the legal situation directly. A constitutive judgment establishes, amends or nullifies a legal relationship between the parties. This effect is automatic as soon as the judgment is final and binding. Accordingly, a constitutive judgment does not require enforcement.
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