Particularities under Austrian litigation – overview of two particularities in the Austrian Civil Procedure Order (Zivilprozessordnung, ZPO)
By Aurelia Tramposch, Tramposch & Partner
The Austrian legislator has increased the amount up to which legal dunning proceedings can be initiated. Monetary claims up to EUR 75,000.00 can now be directly, effortlessly and promptly claimed through dunning proceedings. After having filed a default action by the creditor the court will subsequently issue a conditioned payment order without having appointed a court hearing or having scrutinised the legitimacy of the claim.
Formal court proceedings will only commence if contradictions are submitted. Otherwise, if the debtor fails to contest the conditioned payment order within four weeks, it becomes legally binding. Consequently, the creditor obtains an effective order which enables him to conduct garnishment proceedings.
Contrary to common law, the approach under Austrian law adopts the concept of "the loser pays all". If one party succumbs in the lawsuit, that party will be ordered to pay the opposing party's total lawyer's and court fees. This also applies when a claim is dismissed on whatever grounds resulting in the claimant having to pay the defendant's legal costs.
Legal representation costs are subject to and regulated in the Austrian Lawyers' Tariff (Rechtsanwaltstarif, RATG). The RATG is a complex system, explicitly stating the precise fee for each specific procedural step, always depending on the amount involved in the dispute.
The winning party can only seek reimbursement of its legal costs in an amount which correlates to the RATG. Notwithstanding that a client has an hourly rate remuneration agreement with its lawyers, in the case of prevailing in the lawsuit, the court will only grant legal fees in accordance with the RATG.
Another particularity under the Austrian Civil Procedure stipulates § 43 ZPO that costs will be split according to the success quota of the parties.
Aurelia Tramposch, Associate
Tramposch & Partner, Innsbruck, Austria
T: +43 51 257 17 57
Aurelia Tramposch is an associate who has been working in the Vienna office of Tramposch & Partner since 2012. Aurelia has previously worked in renowned law firms in London, Mexico City and Vienna with a focus on international arbitration.
Tramposch & Partner is a boutique law firm handling litigation and business law matters on a national and international scale. The three offices across Austria, based in Innsbruck, Vienna and Eisenstadt, enable the company to provide comprehensive legal counselling as well as representation at all Austrian courts and administrative bodies. Tramposch & Partner offers specialised services in the areas of corporate law, insurance and re-insurance law, debt collection and litigation.
published: August 2013