Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

After a claim has been filed and served on the defendant, he or she may submit an answer in the form of a statement of defence if disputing the claim.

Following the exchange of written submissions, an oral hearing will be scheduled where all motions will be pleaded orally and where both parties and witnesses will be interrogated.

The judge then proceeds to close the oral hearing, and a judgment will either be rendered directly after the hearing or will be issued later in writing.

Within the allocated time limit, either party has the right to appeal the judgment.

As soon as a judgment becomes res judicata, it can be legally enforced.

Bringing in additional parties

Can additional parties be brought into a case after commencement?

An additional party may join an ongoing proceeding in support of the claimant or defendant, at any stage until a final judgment is rendered.

However, third-party intervention requires that the third party have a legal interest in the success of the joined party. In order to join a proceeding, the third party may file an application for joinder on its own or it may be formally invited to join by one of the main parties of the proceeding. A joinder needs to be approved by the court. The parties may request that a joinder is dismissed, but the court can nevertheless approve the joinder against the parties’ will.

Austrian law distinguishes between two kinds of third-party intervention. If a third party has a mere legal interest in the outcome of a proceeding, the joining party’s role is limited to assisting the joined party and it does not have the same procedural rights as the main party. If the prospective judgment will have a direct effect on the third party, the third party and the joined party are treated equally and have the same legal rights.

Consolidating proceedings

Can proceedings be consolidated or split?

Consolidation of two (or more) proceedings pending before the same court and involving the same parties is possible for cost and time-saving reasons. A court’s decision to consolidate proceedings cannot be appealed by the parties and may be revoked by court at any time. Despite the consolidation, a final judgment may be announced separately for each of the proceedings once it is ready for decision. Otherwise, a joint judgment is rendered.

On the other hand, Austrian courts also have the authority to split proceedings in order to hear claims separately, even though they were originally filed together.

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

As a matter of principle, each party is responsible for alleging and furnishing proof of all facts and arguments supporting its submissions. Only in exceptional cases does Austrian substantive law provide for a reversal of the burden of proof or even set out legal assumptions that render the provision of further proof obsolete.

The question of the applicable standard of proof is one of procedural law. Therefore, Austrian courts always apply Austrian rules on evidence.

Regarding the required standard of proof, a judge must be fully convinced of the truth of the factual allegations made. Proof is considered to be given if there is such a high degree of probability, tantamount to certainty, that any reasonable person familiar with the circumstances would not harbour any further doubts.

However, in certain cases the standard of proof is reduced and a mere attestation of trust will be sufficient, meaning that the judge must merely be convinced of the preponderant probability of a certain factual allegation.

How does a court decide what judgments, remedies and orders it will issue?

The Code of Civil Procedure distinguishes between two types of decisions: judgments and court orders. Any decision concerning the merits of a claim will be issued in the form of a judgment rendered on behalf of the Republic of Austria; all other decisions that do not have to be rendered in the form of a judgment are court orders.

However, certain exemptions to this rule exist. For instance, in proceedings that are not governed by the Code of Civil Procedure (such as enforcement proceedings or insolvency proceedings), decisions on the merits are also issued in the form of orders.

Evidence

How is witness, documentary and expert evidence dealt with?

As a principle rule, evidence is taken only during the course of the litigation, and not before. The taking of evidence is conducted by the court during the oral hearing, and the court freely evaluates the provided evidence. Discovery evidence is not admissible in Austria, and therefore a motion to take evidence with the sole purpose of clarifying certain aspects of a case will be rejected by the court. Evidence obtained through illegal means (eg, unauthorised eavesdropping) is, in principle, admissible.

Witnesses as well as parties need to testify orally before the court. Depositions, written witness statements or affidavits are not permitted. Unlike in other legal systems, witness preparation is not common in Austria.

Usually the judge will instruct parties to produce certain evidence. However, documentary evidence may only be presented if at least one party has referred to it. Moreover, documentary evidence may not be admitted or witnesses heard if both parties object.

Expert witnesses play a crucial role in Austrian litigation. It is for the court to decide whether expert evidence is required, and to select and appoint an appropriate person as expert. Usually, experts render their reports in writing, and the parties are entitled to question the expert at a hearing. In practice, judges tend to rely (too) heavily on expert opinions, especially in complex litigation.

How does the court deal with large volumes of commercial or technical evidence?

There are no specific rules regarding the court’s dealings with large volumes of evidence. Frequently, courts will take the necessary time to review and evaluate the evidence as far as it is considered relevant. If the court has to deal with advanced commercial or technical evidence, it may consult an expert.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

Although EU Regulation No. 1206/2001 has facilitated the taking of evidence abroad, there is no authority to force foreign witnesses to testify before Austrian courts.

In the case of an extradition treaty with a foreign state, an accused person may be extradited, but this does not apply to witnesses.

If a summons is served on a foreigner, the procedural disadvantages may be stressed in the case of absence, but penalties or other disadvantages - such as bringing the person to court - need not be feared.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

Duly summoned witnesses are obliged to appear, to testify and to tell the truth before the court. Faiure to do so can result in fines or imprisonment, or both. The judge takes the lead in examining witnesses, and questions every witness individually and in the absence of other witnesses. Thereafter, the parties or their legal representatives have the opportunity to ask further questions.

Contradicting witnesses may be confronted with each other. A witness may refuse to answer a question if the answer would cause reputational or financial harm for the witness him or herself or for his or her close relatives. In certain cases, a witness may testify in front of a delegate judge or use video conferencing.

Opinions rendered by court-appointed experts are considered to be a specific kind of evidence under Austrian law. Reports submitted by party-appointed experts are permitted as well, but do not have the same status as opinions rendered by court-appointed experts. According to most recent case law, opinions by party-appointed experts are relevant insofar as court-appointed experts have to deal with their findings in their own reports.

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

The average duration of first instance proceedings in the district court level is six months, and 13 months at the regional court level. Around 2 per cent of civil proceedings take more than three years. If courts are in default regarding their obligations (eg, in deciding on a request), the parties have the possibility to file a request to the higher court to set a deadline for the court of first instance to act.

If the plaintiff is only entitled to a payment of up to €75,000, the court will issue an order for payment without a detailed examination of the facts. This ensures a faster and cheaper procedure for the creditor. Only about 10 per cent of these actions are appealed.

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

Austrian procedural law does not leave much scope for means to gain tactical advantages unless the other party makes mistakes. Default judgments are only issued if the defendant does not appear for a hearing. Summary judgments do not exist in Austria.

Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

As a consequence of the loser pays principle, court proceedings entail a considerable cost risk for parties. If a litigation funder is involved, this may have an impact on the duration and final costs, and actually some cases could not even be tried without third-party funding.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

In Austria, legal professionals are required to use the electronic filing system, WebERV, to communicate with courts (see question 53) and with other legal professionals. Moreover, there is an ongoing project at the Viennese Commercial Court regarding paperless trials. In the course of this project, court files are displayed on screens within the courtroom. This project is, however, still in the test phase.

In general, it is possible to access an electronic file containing the basic information of each case (such as dates of service, dates of hearings, what submissions have been filed, etc). Technology-assisted document reviews are permitted.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

In the light of the procedural economy, courts shall combine proceedings for simultaneous hearings and judgments. Due to their binding effect, civil proceedings can be interrupted if another proceeding (including a criminal proceeding) is dealing with a preliminary question.

In addition, there are adhesion procedures under which private law claims are decided in criminal proceedings at the request of the legitimate party. This reduces the costs, risks and duration for the claimant.