AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Dr Kirstin McGoldrick and Natascha Tunkel, KNOETZL HAUGENEDER NETAL GmbH
3.5 Rules of Service Service by Court
in the Anglo-American style have even been viewed as contrary to Austrian legal culture, based on individual action and individual par- ties who assert their own individual claims. That said, Austria nevertheless recently implemented the EU Directive 2020/1828 on representative actions for the protection of the collective inter- ests of consumers. Outside of the scope of this new regime, the previous ways to bring collec- tive actions remain intact. Class Actions, Representative Actions and Sample Lawsuits Until recently, Austrian law only provided for representative sample lawsuits in which certain organisations (eg, consumer protection organi- sations or the Chamber of Labour) were permit- ted to file a case on behalf of an individual and – irrespective of the amount in dispute – bring it before the Supreme Court. Such a claim was required to be assigned to the organisation and had to fall within its scope of responsibility (eg, consumer claim assigned to a consumer pro- tection organisation). While the judgment only has legal effect regarding the specific case, the lower courts will generally honour the decision of the Supreme Court as a practical precedent. The judgment does not affect the limitations periods of other claims. The same organisations may also file for injunc- tions against the use of unlawful general terms and conditions and against business practices that violate unfair competition practices (so- called representative actions). With this instru- ment, the Austrian legislature implemented the Directive (EC) 98/27 on injunctions for the pro- tection of consumers’ interests. Austrian-Type Mass Claims Until recently, Austrian law prohibited repre- sentative actions. Only a party with a claim in
The statement of claim is served on the defendant(s) by the court, together with an order to file an answer to the statement of claim within four weeks. The means of service must ensure proof of receipt. In most cases, the court will effect service by using registered mail. Service Abroad A party that is located outside of Austria can be served either in accordance with Regulation (EC) 2020/1784 on the service of judicial and extraju- dicial documents in civil or commercial matters (within the European Union) or in accordance with bilateral or multilateral treaties containing provisions on the service of documents (outside the European Union), such as the Hague Service Convention (HCCH 1965). Austrian law also provides supplementary rules, according to which service of documents is allowed by means of postal service in a number of states. Otherwise, service is provided by dip- lomatic channels (ie, embassies or consulates). 3.6 Failure to Respond If the defendant has been served with the state- ment of claim but fails to respond or to attend the hearing, the plaintiff can request a default judgment. Various remedies are available to the defendant to reinstate proceedings, but these must be filed within 14 days after service of the default judgment on the defendant or – if the defendant was prevented from responding for reasons beyond its control – within 14 days after the impediment ceases to exist. 3.7 Representative or Collective Actions Austrian Legal Tradition Austrian law has not historically provided a vehi- cle for class actions. Traditionally, class actions
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