AUSTRIA Trends and Developments Contributed by: Bettina Knoetzl and Katrin Hanschitz, KNOETZL HAUGENEDER NETAL GmbH
the former auditor of a bankrupt entity, the court expert was unable to complete his expert opin- ion on the correctness of the audit because the necessary documentation was not available (the plaintiff, an insolvency administrator, had been unable to retrieve financial information from the management of the bankrupt entity). The plain- tiff’s initial document-production request was denied as the plaintiff was unable to sufficiently identify the requested documents. The plaintiff then requested that 15 questions concerning receipt, knowledge of and generation of relevant documents be asked of the defendant’s manag- ing director, to achieve the necessary identifica- tion of the relevant documents. The Supreme Court found that in cases where only the oppo- nent has knowledge of the relevant factual cir- cumstances, Section 184 CPC provides a basis for questions to the opponent, provided that the questions are within the scope of at least rea- sonably substantiated factual allegations (ASC 4 Ob 78/22g, see also 6 Ob 44/09b,). This new line of cases is seen by many – some disapprov- ingly – as a route to US-style discovery. Indeed, some speculate that the broader discovery rules were not included in the new class action rules because, in view of the Supreme Court’s case law on Section 184 CPC, they were deemed not necessary. It remains to be seen to what extent litigators will adjust their trial strategies to make greater use of Section 184 CPC going forward and whether the Austrian Supreme Court will continue to uphold the use of this provision as a tool for discovery. ESG ESG is increasingly the focus of compliance officers and controllers of large Austrian firms and the local subsidiaries of international firms. While civil climate-related claims (eg, liability in tort for failing to act in time to prevent flood-
ing damage) have been filed in the past, dis- putes related to the violation of the new ESG obligations have not yet reached the Austrian civil courts. The focus is currently primarily in the administrative/constitutional arena, with activists filing a complaint with the Austrian Constitutional Court claiming that the Austrian Climate Protec- tion Act failed to set thresholds for greenhouse gas emissions (the “Generation Claim” filed by a group of children) and, in a current case filed with the European Court of Human Rights (Mül- lner v Austria), claiming that the Austrian govern- ment has failed to curb the climate crisis. Given the public awareness and focus on ESG, it is likely that activist shareholders and/or NGOs will soon be seeking to base damage claims against companies on ESG violations. In the absence of special rules for ESG liability claims, such damages will be difficult to successfully argue because, under the current regime, plain- tiffs would have to prove causality for specific damages. Austrian court fees are prohibitively high for high-volume claims, making high-vol- ume test claims unattractive. Looking forward, future implementations of EU regulations – eg, of the Corporate Sustainabil- ity Due Diligence Directive – may well include “hard” obligations that could provide a suitable basis for damages claims for financial damages and lead to a reversal of the burden of proof. Once such provisions arrive, ESG-related claims may begin to hit the Austrian civil courts, poten- tially in the form of class-action claims under the new collective redress rules that were introduced in 2024. Developments in the Judicial System International studies (CEPEJ) attest that the Austrian judicial system remains highly efficient,
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