Civil procedure in Austria: an overview
(Click here to read this post in Dutch.)
This post offers a brief overview of civil proceedings in Austria. The overview is general in nature and focuses on the most important and common proceedings.
The structure of the Austrian system
The Austrian law system consists of several courts, all with their own jurisdictions. The most important of these are:
Bezirksgericht (district court): for cases concerning a claim with a value of up to 15.000 EUR. These courts also have special jurisdiction in certain other subject matters, for instance in relation to rental disputes.
Landesgericht (regional court): for cases concerning a claim with a value exceeding EUR 15.000 and for which the district courts do not have the appropriate jurisdiction.
Special jurisdictions additionally exist for commercial and labor law-related disputes.
The Austrian civil procedure system consists of a variety of proceedings. An important distinction exists between strittige Verfahren (contentious proceedings) and Außerstreitverfahren (non-contentious proceedings). The former covers cases involving most common claims, the latter is for other proceedings concerning, for instance, rental and family law. An important difference between the two is the overall cost risk, which – briefly put – in an Außerstreitverfahren is somewhat lower.
In Austria, both parties to a legal dispute are obligated by law to have legal representation if the value of the claim in the dispute exceeds EUR 5.000 or when the case is subject to the jurisdiction of a higher court, meaning a regional court (Landesgericht) or higher.
The start of a lawsuit: Klage (action) or Mahnklage (default action)
A civil lawsuit in Austria usually starts by filing a petition to the court to issue a demand of payment (Mahnklage) or a by filing an action (Klage).
The Mahnklage is important in practice. The suing party can petition the court to issue an order for payment when the defendant has their residency in Austria, the claim is financial in nature and the total value of the claim does not exceed EUR 75.000. In principle, the court will not verify the contents or justifiability of the demanded claim, but only that the formal requirements have been fulfilled. After the petition has been accepted, the court will issue an order for payment (bedingter Zahlungsbefehl) demanding payment of the demanded claim within 14 days or the submission of an objection against the claim (Einspruch) within four weeks. If an objection is filed within four weeks, the order for payment becomes void and regular proceedings will start. If the objection is not filed in time, enforcement proceedings can be started.
A similar instrument is the European Order for Payment (Europäischer Zahlungsbefehl). This procedure can be used for cross-border European disputes concerning a claim of which the value that exceeds EUR 2.000. Against this order, an objection can be filed within 30 days.
An action (Klage) can be issued for different types of claims and must be filed with the competent court. After a formal check, the court will issue the action by sending it to the defendant. Depending on the subject matter of the case, the defendant will be required to submit a Klagebeantwortung (statement of defense) within four weeks or receive a court summons for a court hearing.
In order to start legal proceedings, the plaintiff will typically have to pay a court fee. The height of this fee depends on the dispute.
In the Austrian legal system, it is of vital importance to respect deadlines and attend hearings. The means of recourse in the event of a missed deadline or hearing are limited. An example is the Wiedereinsetzung in den vorigen Stand (reinstatement), which must be filed within 14 days after learning of the mistake. This action however requires proof that the mistake was due to an unforeseeable and insurmountable event that cannot be attributed to the absent party. The procedure has created a large amount of jurisprudence; high standards must be met in order to succeed.
Course of proceedings
Legal proceedings in Austria may go as follows:
The proceedings start by petitioning the court to issue a Mahnklage or by filing an action (Klage, in some cases this is a motion, Antrag).
The receiver of the demand for payment (bedingten Zahlungsbefehl) has four weeks to submit objections.
With an action, the sued party has four weeks to submit a statement of defence or receives a court summons with a date for a court hearing.
After this, a preparatory hearing will be held. If during this hearing both parties cannot come to a settlement, the judge will decide on the further course of the proceedings.
This will usually lead to another or several more hearings, where both parties will have the opportunity to provide evidence in the form of witnesses, expert testimony, etc.
The exact course of the proceedings will depend highly on the dispute and the judge presiding over the case. Written briefs by both parties are important. The hearings themselves often focus on hearing both parties and their witnesses. The court verdict itself is usually provided in written form and not announced during a hearing.
It is important to know that during proceedings in Austria, the official language is always German (unless the proceedings are being held in one of the courts in areas where a minority language is spoken). People without sufficient knowledge of this language must be assisted by a translator. In addition, any evidence provided in a language other than German will have to be provided in form of a certified translation.
It regularly occurs that foreign parties dispute that an Austrian court has any jurisdiction to deal with a case at all. It is important to raise this objection early. The judge will then decide on his competence to deal with the case.
The decision of the court: judgment or decision
The decision of the court can have two different forms:
Court judgment (Urteil), against which an appeal (Berufung) can be lodged within four weeks.
Court decision (Beschluss), against which an appeal (here: Rekurs) can be lodged within fourteen days.
A higher court will rule on lodged appeals. For decisions of the district court (Bezirksgericht), this will be the regional court (Landesgericht). For decisions of the regional court (Landesgericht) this will be the Oberlandesgericht.
It is important to note that in appeal procedures, a so-called Neuerungsverbot generally applies. This means that at this stage in the proceedings, ”new” facts, arguments or evidence may in principle not be submitted. The court will only decide on the material and formal correctness of the lower court´s decision. In other words, proceedings will not simply be “repeated”.
Under strict conditions, a case may additionally be deferred to the highest Austrian court for civil and criminal law, the Oberste Gerichtshof.
When all possible means of recourse against the decision of the court have been exhausted, its ruling becomes final and binding, and can be used to start enforcement proceedings.
Costs
In most types of civil proceedings in Austria, the losing party will in principle have to bear the legal fees for both parties. These are the court fees, costs for translators, court experts, potential costs for witnesses and lawyer fees.
The above-mentioned lawyer fees are determined on basis of the Austrian Act on Attorney Fees (RATG). Parties are free to agree on a different fee with their respective lawyers. If the court only partially rules in favor of a party, he will only be reimbursed by the other party in a way proportion to his success.
Specific information
For more specific information on Austrian divorce law, click here.
Legal assistance in Austria
I provide legal counsel and representation in civil proceedings in Austria, of course fully in English. Feel free to contact me by using the form below, by sending an e-mail to office@vastenburg.at, or by calling me at 0043 6804446590.
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