Litigation 2025

AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Dr Kirstin McGoldrick and Natascha Tunkel, KNOETZL HAUGENEDER NETAL GmbH

10.4 Issues Considered by the Appeal Court at an Appeal Grounds of Appeal The appellant may claim errors of procedural and/or material law, errors of fact and/or nullity (which rarely occurs). Procedure Before the Court of Appeal The court of appeal may retake evidence (mostly rehearing witnesses) if it decides to independent- ly assess certain evidence. However, it will not rehear the entire case. In practice, the court of appeal rarely conducts an oral hearing or takes evidence itself, but rather upholds or changes the decision, or remands the case to the court of first instance to rehear parts of the case. The appeal proceedings serve to review the cor- rectness of the judgment at first instance, but not to raise any new facts or bring new claims. The court of appeal must disregard new allega- tions and new evidence. 10.5 Court-Imposed Conditions on Granting an Appeal The possibility of seeking a review of second instance decisions by the Supreme Court is highly restricted. Appeals on the points of (material and/or pro- cedural) law may only be brought if the decision upon such points of law is of significant impor- tance to ensure (i) uniformity, or (ii) certainty of legislation, or (iii) to allow for its development. The appellate court must include in its decision a determination on the admissibility of an appeal on the point of law to the Supreme Court. This determination can be contested by the parties and is not binding for the Supreme Court. Con- sequently, the Supreme Court may still dismiss an appeal determined as admissible by the appellate court or allow an appeal determined

nificance for the judicial system (see 10.5 Court- Imposed Conditions on Granting an Appeal ). 10.2 Rules Concerning Appeals of Judgments Admissibility of an Appeal to the Supreme Court Parties may appeal “first instance decisions” to Regional Courts which hear appeals from deci- sions of District Courts, and to Higher Regional Courts in cases of appeals from Regional Court decisions. The decision of the court of appeal will include a statement on whether its judgment is open to an appeal to the Supreme Court. If it does not allow for an appeal to the Supreme Court, the party seeking further appeal may challenge the court of appeal’s decision and request permission to seek further appeal to the Supreme Court. In such cases, the challenge must contain the challenge of the decision of the court of appeal denying further appeal to the Supreme Court but also set forth the actual appeal. No Factual Findings by the Supreme Court If the Supreme Court accepts its competence, it will only review questions of (material and/or procedural) law. Factual findings are never sub- ject to revision by the Supreme Court. Factual findings and the assessment of the evidence can only be challenged before the courts of appeal. 10.3 Procedure for Taking an Appeal The service of the judgment triggers a four-week period during which the partly or entirely unsuc- cessful party may file an appeal. The opponent may respond thereto within four weeks of ser- vice of the appeal. These time periods cannot be extended.

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