AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
Enforcement of Monetary Claims Monetary claims can be enforced by means of meas - ures directed against immovable property ( Liegen- schaftsexekution ), measures directed against mov - able property ( Fahrnisexekution ), claims of the debtor against third parties ( Forderungsexekution ), or rights such as IP ( Rechteexektuion ). Movable property constitutes all objects that can be moved from one place to another without damaging their substance. An application for the enforcement of monetary claims that does not specify the measure by which the claim shall be enforced will be understood to be an applica - tion for a “simple enforcement package”. The predominant enforcement measures available are as follows. Enforcement package (Sections 19 and 20 of the EA) The “simple enforcement package” (Section 19 of the EA) entails a mix of measures directed against mov - able property, as well as the attachment of earnings and the drawing-up of a record of assets. It always applies when the creditor does not request specific enforcement measures. The law also provides for an “extended enforce - ment package” (Section 20 of the EA), setting out the appointment of an administrator. The administra - tor must, with the involvement of the debtor, identify potential assets that may satisfy the claim and docu - ment these in an inventory. To do so, the adminis - trator shall have access to relevant registers and the records of the debtor. In addition, the administrator may order the debtor to draw up a record of assets and to disclose them. An application for an extended enforcement package is only admissible if the credi - tor’s monetary claim exceeds EUR10,000 or if the “simple enforcement package” has failed. Once an extended enforcement package is applied for and granted to one creditor, any further creditors with later applications will be joined to these enforcement proceedings. Effectively, these creditors will benefit from the fact that assets have already been identified
and attached. However, the later applications will also be subordinated to the claims of the creditor whose application was earlier. Establishment of lien (Section 88 et seq of the EA) This measure does not directly lead to the satisfac - tion of the claim of the enforcing creditor but merely secures the subsequent satisfaction of the enforce - able claim in the rank of incorporation as entered into the Land Registry (meaning it does not give priority over pre-existing liens). It is usually combined with other measures. Foreclosure (Section 133 et seq of the EA) This measure leads to the auction of the debtor’s real estate by the court. The order of the court will prompt - ly be entered into the Land Register, thus barring any subsequent transactions that would affect the proper - ty. However, the creditor does not obtain priority over pre-existing liens, etc. In the actual enforcement, the court will have the property appraised by an expert and set an auction date; both the appraisal and the date of the auction are made public. The auction itself will be carried out by the judge in a court hearing. The lowest bid is half of the appraised value. The highest bidder wins the auction. Administration (Section 97 et seq of the EA) The measure of administration aims to satisfy the claim from the proceeds of the administration of a property (such as rental income) or a part of a prop - erty of the debtor. The measure will be recorded in the Land Registry and restricts certain rights of the debtor regarding the administration of the property, as the court will appoint a receiver for this purpose. The measure is terminated as soon as the creditor’s monetary claim has been satisfied. Attachment and auction (Section 249 et seq of the EA) This measure leads to the court-ordered seizure of the debtor’s property, followed by a public auction (in a licensed auction house). The objects are seized by means of describing them and recording them in a list. The destruction, damage or removal of already seized items is punishable by law, so the objects are only physically seized if so requested by the credi - tor. Certain objects of personal use (that allow for a
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