AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Dr Kirstin McGoldrick and Natascha Tunkel, KNOETZL HAUGENEDER NETAL GmbH
11. Costs 11.1 Responsibility for Paying the Costs of Litigation Austrian law operates under the “loser pays” principle. Accordingly, every party is required to pay its own costs during the proceedings. At the end of proceedings, the court will render a deci- sion on costs, ordering the unsuccessful party to reimburse the legal costs of the other party. Legal costs and fees consist of: • court fees (to be paid by the plaintiff when filing a claim or an appeal); • lawyers’ fees; and • cash expenses such as expert/translator costs and travel costs of witnesses. The reimbursable fees for lawyers are fixed according to a tariff, depending on the amount in dispute and the procedural steps taken by the lawyer. The actual fees a lawyer charges a client may, and often do, exceed the tariff. The winning party may still end up having to pay the excess amount. 11.2 Factors Considered When Awarding Costs The court’s decision on costs depends on which party prevails and in what proportion. 11.3 Interest Awarded on Costs By law, Section 54a Austrian Code of Civil Pro- cedure, and without the need for being explicitly stated in the decision on costs, the party liable to pay compensation shall be obliged to pay statu- tory default interest on the amount of costs from the date of the decision on costs.
as inadmissible by the court of second instance provided that the appeal is not inadmissible by law for other reasons (eg, because the amount still in dispute does not exceed EUR5,000). 10.6 Powers of the Appellate Court After an Appeal Hearing In practice, the court of appeal rarely conducts an oral hearing (see 1 0.4 Issues Considered by the Appeal Court at an Appeal ). The court of appeal may, on the grounds of a procedural deficiency: • set aside the judgment and refer the case back to the court of first instance; or • complete the proceedings and decide by judgment on the merits. In the event of an incorrect legal assessment, the court of appeal may confirm or amend the first instance judgment. If the procedure/judgment is rendered null and void, the court of appeal will nullify the proce- dure/judgment and refer the case back to the first instance. As a rule, the Supreme Court decides on the merits by confirming or amending the appellate judgment. On the grounds of procedural defi- ciency and if factual findings are missing, the Supreme Court will set aside the judgment and refer the case back to the court of appeal or the court of first instance.
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