AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
Debtor’s defences The enforcement of a European Enforcement Order can be refused only if, upon application of the debtor, the court determines that the European Enforcement Order is irreconcilable with an earlier judgment ren - dered in any member state or in a third country. Enforcing Judgments Neither Rendered Within the EU Nor Covered by the Lugano Convention Any decision by a court of a state that is outside the EU and not party to the Lugano Convention must be formally recognised and declared enforceable by an Austrian court in order for enforcement proceedings to be permissible in Austria. Proceedings The creditor must request the declaration of recogni - tion and enforceability from the Austrian court com - petent for enforcement proceedings (for more detail, see 2.2 Enforcement of Domestic Judgments ). In addition, the creditor is required to enclose certified copies of all relevant documents with such request. The creditor may combine the application for recogni - tion/declaration of enforceability with the application for enforcement. The court issues its decision without hearing the debt - or. An appeal against the decision may be filed within four weeks of service of the decision (or eight weeks if the debtor is domiciled outside Austria and this is the first opportunity to participate in the proceedings). Once the declaration of recognition and enforceability has become effective, the foreign judgment is con - sidered equal to domestic judgments. Accordingly, the ensuing enforcement proceedings are governed by the same laws applicable to the enforcement of domestic judgments (see 2.2 Enforcement of Domes- tic Judgments ). Debtor’s defences The declaration of enforceability may, inter alia, be refused if: • according to Austrian laws on jurisdiction, the for - eign court could not have had jurisdiction over the matter, under any circumstances;
• the opposing party was not served with the docu - ment that initiated the foreign proceedings; • the opposing party could not properly participate in the foreign proceedings owing to procedural irregularities; or • the foreign judgment violates the fundamental prin - ciples of Austrian law (ordre public). 3.5 Costs and Time Taken to Enforce Foreign Judgments An application for the recognition and declaration of enforceability alone does not trigger court fees, unless it is combined with an application for enforcement – in which case, the general rules apply. The enforcement of EU judgments (or judgments fall - ing within the scope of the Lugano Convention) is standard procedure in Austrian courts and generally takes place without delay, comparable to the enforce - ment of domestic judgments. The enforcement of other judgments, however, can be cumbersome and lengthy, depending on the origin of the judgment. The proceedings to obtain recognition and a declaration of enforceability may – with an appeal – last between two and six months. As in all court proceedings, the duration also depends on the conduct of the debtor, which may file appeals and request a stay of proceedings, etc. 3.6 Challenging Enforcement of Foreign Judgments Objections to the recognition and declaration of the enforceability of a judgment must be raised by the debtor, except for an ordre public objection. They are not reviewed ex officio. In general, Austrian courts will not undertake a sub - stantive review of a foreign judgment. However, in pro - ceedings regarding the recognition and declaration of enforceability, certain grounds may result in a partial substantive review, particularly if there is any indica - tion that the judgment contravenes Austrian public policy (ordre public). On balance, Austrian courts take a rather liberal approach and will only refuse recogni - tion and a declaration of enforceability if this would manifestly violate the fundamental principles of Aus - trian law.
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