AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
the enforcement of ex parte interim measures, provid - ed the decision has been served on the defendant(s) before enforcement. Outside the regime of Brussels I Recast, ex parte interim orders are generally not enforceable in Austria. Austrian law does not have an instrument equivalent to punitive damages and, accordingly, will not enforce a judgment (or that part of a judgment) awarding such damages. 3.4 Process of Enforcing Foreign Judgments Enforcing Contested EU Judgments Proceedings Under Brussels I Recast, no separate recognition pro - ceedings are required, allowing the creditor to move directly to obtaining a declaration of enforceability and proper enforcement proceedings. The application for enforcement is to be made to the competent domestic court (for more detail, see 2.2 Enforcement of Domestic Judgments ). Together with the enforcement application, the creditor must provide a copy of the judgment, which must be accompanied by a certificate issued by the court that rendered the decision in the country of origin (pursuant to Article 53, Annex 1 of Brussels I Recast). The translation of the judgment is not mandatory but the court may order the creditor to produce a (certified) translation of the judgment. According to Article 41, paragraph 1 of Brussels I Recast, the procedure for enforcement shall be gov - erned by the law of the member state in which enforce - ment is sought. This means that, in effect, domestic Austrian enforcement provisions apply directly (see 2.2 Enforcement of Domestic Judgments ). Debtor’s defences There are several limited grounds on which recog - nition of a judgment rendered by the courts of an EU member state can be denied. These exceptions include cases in which the recognition of the judgment is manifestly contrary to the public policy of the EU member state in which recognition is sought, or if the judgment was rendered in violation of due process. Other grounds for the denial of recognition include if
the decision is irreconcilable with a previous judgment between the same parties. According to the Austrian Supreme Court, the require - ment that the foreign judgment be enforceable in the state of origin does not imply a requirement that the judgment could indeed be enforced in the country in which it was rendered, but rather that such judgment is formally enforceable. Enforcing Uncontested EU Judgments According to Article 20 of Council Regulation (EC) 805/2004, “a judgment certified as a European Enforcement Order shall be enforced under the same conditions as a judgment handed down in the member state of enforcement”. A claim is considered uncon - tested if: • the debtor has expressly agreed to it by admis - sion or by means of a settlement that has been approved by a court or concluded before a court; • the debtor has never objected to it in the course of the court proceedings; • after having initially objected to the claim in the course of the court proceedings, the debtor has not appeared or been represented at the fur - ther court hearings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the member state; or • the debtor has expressly agreed to it in an authen - tic instrument. Proceedings The application for the enforcement of a European Enforcement Order must be accompanied by the fol - lowing documents: • a copy of the judgment that satisfies the conditions necessary to establish its authenticity; • a copy of the European Enforcement Order cer - tificate that satisfies the conditions necessary to establish its authenticity; and • where necessary, a transcription of the European Enforcement Order certificate or a translation thereof into the official language of the court of enforcement.
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