AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
A declaratory judgment ( Feststellungsurteil ) clarifies the existence or non-existence of a legal relationship or right. It may also be requested to establish the authenticity or falseness of a document. A declaratory judgment can be relied upon but cannot be enforced. If one party refrains from participating in the proceed - ings and, in particular, fails to appear in court, the court may – upon request of the other party that is not in default – render a default judgment ( Versäumung- surteil ) (Section 396 of the CCP). If the non-defaulting party fails to make such an application, the proceed - ings are suspended. The main prerequisite is that the defaulting party has properly been served with a writ – ie, the party is aware that it is required to file a written submis - sion or appear in court. Moreover, the defaulting party has various legal remedies against the default judg - ment at its disposal. However, if no action is taken, the default judgment becomes final and binding and is fully enforceable. 2.2 Enforcement of Domestic Judgments Austrian enforcement proceedings are bifurcated into two steps: • authorisation proceedings ( Exekutionsbewilligung ); and • the actual enforcement ( Exekutionsvollzug ). Both fall within the competence of the enforcement court. The prerequisite for enforcement is an enforceable title, such as the judgment of a court that has been formally confirmed as enforceable (usually by means of an official stamp). Such confirmations are issued by the court that rendered the judgment, once the judgment has become final and binding (no further appeal possible) and the performance period (in which the judgment debtor has the opportunity to voluntarily comply with the judgment) has expired. For the sake of completeness, under Austrian law, an enforcement title ( Exekutionstitel ) is not only a judg - ment but may also, inter alia, be a public deed or an enforceable notarial deed. In all cases, the enforce -
ment title must be sufficiently specific – ie, allow the court of enforcement to clearly determine what the creditor is entitled to receive. Once a creditor has obtained an enforceable title, it can apply for enforcement at: • the competent district court at the debtor’s domi - cile; • the location of the asset that is the subject of the enforcement; • the place where the act of enforcement will take place; or • in cases of garnishment orders, the third party’s domicile. The application for enforcement is done by means of official standard forms. The court of enforcement will only examine the for - mal requirements based upon the application. If it is satisfied that all formal requirements are met, it will authorise enforcement by means of a court order. There is also a simplified enforcement authorisation procedure that does not require the submission of the enforceable title. This simplified procedure is only applicable to Austrian judgments where the value of the claim to be enforced does not exceed EUR50,000. In Austria, actual enforcement – ie, implementation of the enforcement measures – also falls within the competence of the courts and its officers. There is no private enforcement. Enforcement Measures Austrian law provides for a number of enforcement measures and allows the creditor to choose which enforcement measure(s) shall be implemented (and to combine several measures, if this is appropriate). However, only those enforcement measures listed in the EA are available. Furthermore, certain enforce - ment measures are only available for certain types of claims. The available enforcement measures are cat - egorised according to whether they serve to enforce either monetary claims or specific actions of the debtor.
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