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Author: Georg E. Kodek

II. Traditional multiparty practice in Austria

1. General description

While the Austrian Code of Civil Procedure does not contain specific provisions on group actions, there are a number of procedural devices which, at least to a certain extent, can be utilized to handle mass litigation.

a) Individual actions

Claimants are free, of course, to pursue their claims by way of individual actions before the same court or different courts. While this leads to an undesirable duplication of lawsuits and possibly to inconsistent results, this method has been used by some claimants in mass tort claims.

b) Joinder

Alternatively, several claimants can join in a single proceeding. Further, one claimant can bring several claims against one or more defendants in one complaint. This device allows several claimants to join forces against one or more defendants. In the past, this procedure has been used successfully in a number of mass cases with up to several hundred claimants joining in a single complaint.

c) Consolidation of cases

The court has discretion to consolidate cases if it is in the interest of justice. However, this is only possible if the cases are pending before the same court. Only in certain tort cases can the court transfer a case to another court where similar cases are pending for the purposes of consolidation. As a practical matter, consolidation is of limited use in mass litigation because consolidation may be impractical if the individual complaints are filed at different times. More importantly, practical problems arise from the large number of lawyers involved in these individual complaints as different trial strategies would most likely be pursued by them.

d) Test cases

Sometimes potential claimants agree to file just one case which is designed to resolve a number of similar controversies between the parties or to await the outcome of an already pending case. Typically, the potential defendant will waive the statute of limitations for the time as the test case is pending. Often there is an understanding between the parties that the result of the test case is binding for the other claims.

e) Appointment of a curator

Several statutes authorize the appointment of a curator in mass proceedings. Whereas in most cases this is for purposes of service only, an 1874 statute authorizes the appointment of a curator representing investors in court in cases involving "Teilschuldverschreibungen" (partial debentures).

f) Special provisions for landlord-tenant cases

There are special provisions for landlord-tenant cases involving more than six parties. In this case, service can be fulfilled by posting of the documents in the house or by sending the documents to a curator appointed by the court. These rules only seek to simplify the service of documents; they do not restrict the parties' right to appear per se or by an attorney.

g) Injunctive relief sought by associations

The Injunctions Directive 98/27/EC is implemented by § 29 Konsumentenschutzgesetz (Consumer Protection Act). Under this provision, certain associations are entitled to seek injunctive relief.

h) Administrative proceedings

In 1998, special provisions for mass proceedings were introduced in administrative law authorizing service by publication. In certain proceedings concerning permits for businesses the administrative authority can also appoint a curator if 20 or more parties have raised objections which are substantially similar.

2. Subject areas

All of the mechanisms mentioned above (with the exception of the curator under the 1874 statute) are not restricted to a particular area of the law. In practice, mass claims are mostly found in tort cases and in cases for damages in connection with false investment advice.

3. Procedure

a) Standing

There are no restrictions as to whom the procedures outlined above are available.

b) Certification criteria

No special certification criteria apply.

c) Procedural rules & particularities

Joinder requires that there is some form of connection between the parties joined. Specifically, section 11 subparagraph 2 Austrian Code of Civil Procedure requires that the claims are based on essentially the same facts, and that the court has jurisdiction over all defendants.

d) Relationship with civil procedure rules

All these mechanisms fit into traditional civil procedure, either by combining several parties or several lawsuits.

e) Participation of foreign plaintiffs

There are no restrictions as to the participation of foreign claimants.

f) Effect on res judicata

The scope of res judicata of the procedures described above is limited to the parties who actually participated in the proceeding. Other members of the respective group who did not take part in the proceeding are not bound by the outcome.

4. Available remedies

Since all of the measures described above fit into the framework of traditional civil procedure, there are no restrictions as to the available remedies. In most actions claimants ask for money, although a declaratory judgment would be possible as well.

5. Costs & funding

Austria has a "loser pays" rule. In recent years commercial litigation finance became increasingly important. However, as a practical matter, commercial litigation finance is only available to relatively high claims. The respective "threshold" is about 50,000 EUR. It is one of the major advantages of the "Austrian model" of group litigation

1. § 227 Zivilprozessordnung (Code of Civil Procedure).

2. § 187 Zivilprozesordnung (Code of Civil Procedure).

3. § 31a paragraph 2 Zivilprozessordnung (Code of Civil Procedure)

4. Law of April 24, 1874, Reichsgesetzblatt 1874/49. There are similar provisions in §§ 225 et seq of the Stock Corporation Act (Aktiengesetz) for mergers and other forms of corporate reorganisation.

5. § 365c Gewerbeordnung (Business Act).