AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
decent but modest lifestyle), of emotional value (such as family photos) or covering basic needs (food for four weeks) may not be seized. The auction proce - dure is similar to that described under “Foreclosure (Section 133 et seq of the EA)” regarding immovable property. Surrender of specific property (Section 346 et seq of the EA) This measure is directed against a specific movable object. The officer of the court may seize the precisely defined movable object and hand it over to the credi - tor against a receipt. In most cases, monetary claims of the debtor against third parties are claims against banks holding accounts of the debtor and attachment of earnings (salary or wages) of the debtor. However, the debtor must be left with an amount that is equivalent to the minimum subsistence level (defined by law). Attachment and collection (Section 289 et seq of the EA) This measure consists of two orders: one forbidding the third-party debtor to make payment to the debtor (prohibition of payment) and another forbidding the debtor from disposing of its claim against the third- party debtor (prohibition of disposal). The third-party debtor is subsequently obliged to provide the court with any relevant information regarding the attached claim (such as assignment of the claim or attach - ments by other creditors; in the case of an employer, known family maintenance obligations of the debtor) and is liable for damages incurred by the creditor due to incorrect or incomplete information. The collection (and then transfer to the creditor) is generally effected by bank transfer. Rights or intangible assets of the debtor may also be the subject of enforcement proceedings. The most common cases are IP or shares in companies. Attachment and exploitation (Section 327 et seq of the EA) As a first step, this measure entails attachment of the right and an order forbidding the debtor from dispos - ing of this right. The actual measures that shall allow the creditor to recover its monies depend on the right.
By way of example, the court may order a patent to be subject to receivership (allowing the creditor to collect any licence fees) or that the patent shall be subject to administration (including the right to grant licences – again, allowing the creditor to collect any monies paid for such licences). The court may (ultimately) also order sale of the patent (allowing the creditor to be satisfied from the proceeds). Enforcement of Non-Monetary Claims Non-monetary claims are, in general, specific acts that the debtor is obliged to undertake (or cease and desist from). Substitution of the act (Section 353 et seq of the EA) This measure obliges the debtor to undertake an act within a specified time. If the debtor fails to do so, the creditor may have this act performed by another person and request enforcement of the costs incurred as a monetary claim. Penalisation for failure to comply (Section 353 et seq of the EA) If the act can only be performed by the debtor or if the debtor violates its obligation to cease and desist, the court will first threaten – and can then impose – penal - ties in the form of fines or imprisonment. Special Scenario: Insolvency of the Debtor The 2021 amendment of the EA introduced an inter - section between enforcement and insolvency law (Section 49a of the EA). The underlying aim of the legislature was to ensure that debtors that are unable to pay are removed from enforcement proceedings that are directed against debtors that are unwilling to pay. Accordingly, enforcement officers or administra - tors appointed to execute an “extended enforcement 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.
16 CHAMBERS.COM
Powered by FlippingBook