AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Dr Kirstin McGoldrick and Natascha Tunkel, KNOETZL HAUGENEDER NETAL GmbH
For monetary claims, the following types of enforcement are available: enforcement on movables, real estate, receivables, claims for delivery and other pecuniary rights (eg, patents or company shares). In claims for specific performance, the following methods can be considered: • eviction; • substitute performance; or • penalties for contempt (fines and, ultimately, imprisonment for up to a maximum of two months). Assets Subject to Enforcement Creditors can choose to enforce against real property or other specific assets (eg, a specific bank account, a specific share); or, alternatively, to request enforcement in the form of: • a “small bundle”, which includes enforcement against movables and the attachment of sal- ary from existing employment; or • if the claim is in excess of EUR10,000 or the small bundle proved insufficient, an “extend- ed bundle”, which also includes all other assets with the exception of real property (in this case, an administrator is appointed by the court to investigate and to realise the assets). 9.5 Enforcement of a Judgment From a Foreign Country As to recognition and enforcement of foreign titles in Austria, a distinction must be drawn between titles under the Brussels Regulation and titles which do not fall under this regime. Enforcement Under the Brussels Regulation Under the Brussels Regulation, a judgment of an EU member state shall be recognised in other
member states without any special procedure being required. A judgment rendered in a mem- ber state and enforceable in that state shall be enforced in another member state without any declaration of enforceability being required and under the same conditions as apply to a domes- tic judgment. Enforcement Outside the Scope of the Brussels Regulation For titles which do not fall under the regime of the Brussels Regulation, it is necessary to initiate exequatur proceedings and to obtain a “decla- ration of enforceability”. The application for the declaration of enforceability may be joined with the application for the authorisation of enforce- ment itself. If the applications are joined, there is only one proceeding, and the relevant decisions are rendered at the same time. A declaration of enforceability is only granted if the foreign judgment is enforceable according to the law of the state where it was issued and if reciprocity is guaranteed by international con- ventions, treaties or by regulations. This means that it is not within a court’s discretion to deter- mine reciprocity but that there must be a legal basis confirming that Austria and the other state mutually recognise each other’s court decisions. If a court is uncertain in this regard, it will turn to the Austrian Ministry of Justice for determination and guidance. 10. Appeal 10.1 Levels of Appeal or Review to a Litigation There are two appeal levels, one to the court of appeal and one to the Supreme Court. An appeal to the Supreme Court is limited to matters of sig-
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