Skip navigation

Austria

Author: Georg E. Kodek

I. Factsheet

Scope

In Austria, there is no horizontal mechanism tailored to collective redress. For compensatory actions, traditional devices of multi-party procedures are available: joinder, consolidation of cases, test cases and assignment of claims.

Practice developed the 'Austrian model of group litigation' to handle mass damages claims: a combination of either a joinder of claims or a mass assignment of claims to an association backed up by litigation finance. The procedure has been created for monetary damages in the investment sector butis not limited to a specific sector.

Injunctions can be brought by specified entities in specific sectors such as consumer protection.

Problems/Incompatibilities with Recommendation principles

Lack of a formal collective redress mechanism.

The 'Austrian model of group litigation' is suited to solve some of the problems arising from traditional multi-party practice, but not all of them.

Standing

No special provisions on standing for compensatory claims. In practice, the Consumer Association (Verein für Konsumenteninformation) and the Employees' Chambers (Arbeiterkammern) bring actions under the 'Austrian model of group litigation' focussing on compensatory collective redress. However, other associations would be entitled to do so as well, if claims are transferred to them.

For injunctive claims, standing is granted to entities defined by law.

Problems/Incompatibilities with Recommendation principles

No specific provisions or restrictions as to standing for compensatory claims.

Admissibility

Early determination of admissibility questions by the courts (if the claims are based on substantially the same cause of action and concern substantially similar questions of law and fact).

Information on Collective Redress

Associations assisting claimants under the 'Austrian model of class action' regularly publish information on currently pending mass litigations (e.g. on their homepage, via newspapers, etc).

Problems/Incompatibilities with Recommendation principles

No official channel for the distribution of information on collective redress nor a national registry.

Funding

Commercial litigation finance is regularly used to enable the 'Austrian model of group litigation'. Since litigation-funding agreements are not normally divulged, no exact figures as to the frequency of the use of litigation finance are available.

Problems/Incompatibilities with Recommendation principles

Third party funding is not specifically regulated and there are no formalised control mechanisms.

Efficient procedures for injunctive orders

Expedient procedures for Injunctions in specific sectors such as consumer protection.

For compensatory redress, injunctions according to general rules may be issued as far as necessary to secure the claim.

Efficient enforcement of injunctive orders

Yes.

Enforcement of collective actions and settlements are subject to ordinary enforcement via execution proceedings.

Opt In/Opt Out

Austrian civil procedure strictly follows the opt-in approach. The same applies to the 'Austrian model of group litigation'.

Collective ADR and Settlements

Court-directed settlements may be concluded for the duration of proceedings, in special cases (proceedings at district court level) also out of court before an action is brought.

In the preparatory hearing, the judge is under a duty to suggest a respective court-directed settlement. Both court-directed and out of court settlements are, in general, subject to some degree of judicial control.

Problems/Incompatibilities with Recommendation principles

No specific rules for collective redress as there is no horizontal CR mechanism.

Costs

Austria applies the "loser pays" principle. There are, however, some exceptions to this general rule, usually applying when the winning party has culpably caused the occurrence of costs that would have not been necessary.

Lawyers' Fees

Lawyers' fees are usually either calculated based on the statutorily provided attorney rates or by individual agreement (usually fixed hourly rates).

Contingency fees agreed upon between claimants and their attorneys are invalid. However, performance-based fees are possible. It is, for example, possible to agree upon a certain fixed sum payable in case of successful litigation, if there is also a fixed sum stipulated in case of unsuccessful litigation and thetwo sums are not grossly disproportionate.

Prohibition of punitive damages

Punitive/extra-compensatory damages are not available.

Interplay between injunctions and compensation across all sectors

The 'Austrian model of group litigation' procedure is almost exclusively available for monetary damages and does not usually follow prior injunctive proceedings. Generally it is possible to rely on an injunctive order in a subsequent damages action.

News

BIICL collaboration with German Funder on Collective Redress Project

BIICL has recently worked with the German public body, the Gesellschaft fur internationale Zusammenarbeit (GIZ) on a collective redress project....

News

Germany - Collective Action Draft Bill

Draft Bill for collective actions...