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Jurisdiction

Court system

Outline and explain the general structure of your country’s court system as it relates to the commercial appellate process.

Civil and commercial law disputes, including insolvency proceedings, fall within the jurisdiction of the civil-court system. All civil courts are federal.

There are four levels of civil courts:

  • district courts;
  • regional courts;
  • courts of appeals; and
  • the Supreme Court.

There are, however, a maximum of three stages of proceedings; either district courts or superior courts serve as courts of first instance, depending on the nature of the claim and the amount in dispute.

Regional courts or courts of appeals serve as appellate courts, depending on whether the court of first instance was a district court or a regional court. In limited cases where another stage of appeal is admitted, the Supreme Court in Vienna always serves as last resort.

Within the court system there are some highly specialised judges and panels of judges responsible for handling certain kinds of disputes (eg, commercial law, civil law, family law etc).

Civil matters

Are there appellate courts that hear only civil matters?

Appellate courts in Austria hear civil and criminal matters. This does not mean, however, that any case could end up with any appellate judge. Appellate judges are highly specialised; cases are assigned according to case-allocation plans that are made in advance (not on an ad-hoc basis once the appeal reaches the court). Those plans take into account the specialisation of certain panels of judges.

There is also a special department of the Vienna Court of Appeals responsible for non-contentious antitrust cases, such as the registration of (legal) cartel agreements. Appeals against decisions of the Cartel Court are decided by a special panel of the Supreme Court. Ordinary courts decide disputes in other contentious antitrust cases.

Appeals from administrative tribunals

Are appeals from administrative tribunals handled in the same way as appeals from trial courts?

Appeals against decisions by the executive branch are handled by different kinds of administrative courts system. This system is separate from the civil and criminal court system. Jurisdiction of the administrative court system includes appeals against administrative penalties, complaints for failure by the executive to render a timely decision as well as ‘other matters’.

The administrative court of first instance is not bound by the administrative’s findings (re facts) or decisions.

Representation before appellate courts

Is there a separate appellate bar or other requirement for attorneys to be admitted before appellate courts?

No.

Multiple jurisdictions

If separate jurisdictions exist for particular territorial subdivisions or subject matters, explain their main differences as to commercial appeals.

As a general rule, district courts are responsible for handling matters where the amount in dispute does not exceed €15,000. However, there are some fields (eg, tenancy law, family law) where all cases are handled by the district courts and the amount in dispute can be pretty substantial.

The procedure before district courts has certain particularities. When the amount in dispute does not exceed €5,000, a party does not need to be represented by a lawyer. In this situation the judge is obliged to provide legal guidance while still staying above the fray (which, in some cases, is quite hard).

Before the district courts and the regional courts, summary proceedings for debt collection are obligatory for monetary claims not exceeding €75,000. On the basis of the claim filed by the plaintiff, the court issues an order without hearing the defendant. If the latter files an objection within four weeks, the order expires and the court must initiate the regular proceedings. If not, the decision becomes final therefore enforcement measures can be taken based on this decision.

There is also a separate commercial jurisdiction that applies to certain kinds of litigation arising from business dealings. The cases themselves are normally heard at regular district or regional courts in case a panel decides it needs to include experienced businessmen as lay judges. In Vienna, there is a separate commercial court and a separate district court for commercial matters. The district court for commercial matters is exclusively competent for the European Union’s reminder procedure in Austria.

With regard to labour and social law disputes, there is also a separate jurisdiction. The cases themselves are normally heard at regular regional courts, but the panels include experienced businessmen and worker’s representatives as lay judges. A separate labour and social dispute court only exists in Vienna.

Bringing an appeal

Deadlines

What are the deadlines for filing an appeal in a commercial matter?

Generally, an appeal has to be filed within four weeks after receiving the judgment, and within 14 days after receiving other decisions (resolutions).

Procedural steps

What are the key steps a litigant must take to commence an appeal?

The notice of appeal is a written document filed by the appellant with the court (a copy of which is sent to the appellee), which is usually the initial step into the appeals process. It informs the court and the counterparty in whose favour a judgment or order has been made that the unsuccessful party seeks a review of the case. Failure to file a notice of appeal may preclude appeal.

Under Austrian law, filing a notice of appeal is necessary only in a small fraction of cases. In nearly every civil-law case, decisions are rendered in writing. If a judge decides to render his or her decision orally (which is his or her prerogative, but rarely happens in practice), a notice of appeal has to be filed within 14 days (section 461, paragraph 2 of the Austrian Code on Civil Procedure).

In cases handled in front of a criminal court, a notice of appeal has to be filed with the court within three days (sections 284 and 294 of the Austrian Code on Criminal Procedure).

In all other cases, an appeal against a judgment has to be filed within the relevant deadline of four weeks; a recourse against a resolution has to be filed within the relevant deadline of 14 days.

Documentation

How is the documentation for appeals prepared?

The function of the appellate court is limited to a review of the trial record ‘sent up’ from the lower court and the briefs filed.

If a party is unhappy with what the hearing minutes show it can file an objection to the hearing minutes under section 215, paragraph 1 of the Austrian Code on Civil Procedure. This can only be done in writing at the end of the court hearing.

Right of appeal

Discretion to grant permission to appeal

In commercial matters, may litigants appeal by right or is appellate review discretionary?

Generally, in civil matter cases, litigants do have a right to appeal if they are aggrieved by the decision because it has a direct and adverse effect upon their person or property.

In cases where the amount in dispute does not exceed €2,700, appeals can only be filed in very limited circumstances.

Above this threshold, an appeal might be filed because of:

  • procedural errors;
  • unjustified exclusion of evidence;
  • incorrect application of the law; and
  • incorrect statement of facts (wrong evaluation of the evidence).

A decision can only be appealed to the Austrian Supreme Court (as a second appeal) if a substantial legal issue is raised. Substantial legal issues mostly derive from one of three reasons:

  • the decision in question deviates from earlier Supreme Court decisions;
  • there have been no Supreme Court decisions on the matter at hand; or
  • there are diverging decisions from different sections of the Supreme Court about the matter at hand.

Also, in many cases, an appeal to the supreme court can only be filed if either the dispute value exceeds €30,000, or the dispute value exceeds €5,000 and the first appellate court grants a right to an appeal (if the appellate court agrees that the question at hand is a substantial legal issue).

Judgments subject to appeal

Can litigants appeal any ruling from a trial court, or are they limited to appealing only final judgments?

Although some court orders can only be fought through an appeal on the final judgment, a recourse is possible against many kinds of court orders. The decision on the recourse is, in some cases, subject to a second recourse to the Austrian Supreme Court.

Security and interlocutory matters

Security to appeal

In a typical commercial dispute, must a litigant post a bond or provide security to appeal a trial court decision?

In a typical commercial dispute there is no legal requirement for a litigant to post a bond or provide other security to appeal a trial court. However, in some limited cases, the party winning the case in the first instance may have the right to ask the losing party to post a bond or provide security.

Interlocutory appeals

Are there special provisions for interlocutory appeals?

Under Austrian law on civil procedure, a court is free to render a partial decision but it is not obliged to do so. It may render an opinion stating that the defendant is liable for some kind of wrongdoing but without yet deciding the amount of damages. It is also free to decide that one of the claims that formed the basis of a lawsuit is valid before deciding on the other claims. Such a decision can be appealed under the normal rules on appeals. The court, however, can also do one singular ruling deciding on the basis of the claim and on the amount of damages in one decision. If there is only one decision, only this decision can be appealed against.

Injunctions and stays

Are there special rules relating to injunctions or stays, whether entered in the trial court or on appeal?

Yes. There are special rules relating to injunctions.

Scope and effect of appellate proceedings

Effect of filing an appeal

If a litigant files an appeal in a commercial dispute, does it stay enforcement of the trial court judgment?

Yes.

Scope of appeal

On an appeal from a commercial dispute, may the first-level appellate court consider the facts and law anew, or is its power to review limited?

The Civil Procedure Code provides for an ordinary appeal against a judgment by a trial court and for a second appeal against the decision of an appellate court. A complaint or second complaint may be possible against a court order. Other requests for relief from court decisions are referred to as extraordinary remedies. A timely appeal suspends the legal validity, and in most instances, the enforceability of a judgment. Court orders are enforceable pending the appellate court’s decision. There is, however, a process available for the litigant to secure a stay pending the decision on the appeal by the appellate court.

In review proceedings (also at the first-level appellate court), with few exceptions no new claims and defences or new allegations of facts and evidence may be introduced.

For an ordinary appeal, the litigant files the writ of appeal with the trial court. After checking if the appeal was filed in a timely manner and with the right court, the court sends the writ appealing the trial court’s decision to all opposing parties. These parties then have the chance to reply to the writ of appeal within the same time frame the appellee had to file his or her appeal.

The case file, including the writ of appeal and any replies to the writ of appeal, is then sent to the competent court that will, in most cases, render a written decision. This decision can be:

  • the ruling stands;
  • the ruling is overturned; or
  • the ruling is vacated and sent back to the trial court to make further material findings.

Further appeals

If a party is dissatisfied with the outcome of the first-level appeal, is further appeal possible?

The second appeal is a legal remedy against judgments of appellate courts.

It is addressed to the Supreme Court. As a general rule, it is impermissible if the value in dispute is not above €5,000. There are, however, some exceptions to this rule (eg, in family law).

If the value in dispute exceeds €5,000, but not €30,000, the appeal reaches the Supreme Court only if the appellate court grants the appeal. An appeal will only be granted if a legal issue of considerable importance in substantive or procedural law is involved with respect to the uniform application, reliability or development of the law beyond the case in point. Even the appeal to the Supreme Court has been granted by the court of second instance the Supreme Court is free to decide whether it accepts or declines the case.

If the value in dispute exceeds €30,000, the appellate court may not block the appeal; but, as in all cases, the Supreme Court has discretion to accept or refuse to accept the case (similar to granting or denying certiorari in the United States).

The Supreme Court is bound by the facts found by the lower courts.

Duration of appellate proceedings

How long do appeals typically take from application to appeal to a final decision?

This differs considerably from court to court, but generally speaking, a decision is to be expected within three to 10 months after the appeal is filed.

Submissions and evidence

Submissions process

What is the briefing and argument process like in a typical commercial appeal?

In most cases both appellant and respondent only have one chance to file a writ (appeal and response to appeal). Oral hearings are rare in appellate proceedings concerning civil law matters.

New evidence

Are appeals limited to the evidentiary record that was before the trial court, or can new evidence be introduced on appeal?

As a general rule, no new allegations and evidence may be introduced on appeal.

In limited circumstances, this new evidence can be grounds to file a new lawsuit.

In certain proceedings that are deemed to be ‘non-contentious’, the rules on introducing new evidence on appeal are somewhat loosened.

New evidence of wrongdoing

If litigants uncover new evidence of wrongdoing that they believe altered the outcome of a trial court judgment, can they introduce this evidence on appeal?

Generally, no new allegations and evidence may be introduced on appeal (see question 19).

If some kind of wrongdoing is uncovered after the judgment (eg, false testimony or evidence, collusion) the trial can be reopened after a claim for retrial or restarted after an action for annulment.

New legal arguments

May parties raise new legal arguments on appeal?

Only if they refer to formal questions, new facts or the legal assessment in the decision new legal arguments may be raised.

Costs, settlement and funding

Costs

What are the rules regarding attorneys’ fees and costs on appeal?

Attorneys and their clients are free to enter into different kinds of fee arrangements (ie, an hourly rate agreement, a flat payment, both possibly including an additional success fee). However, under Austrian law, a contingency fee based on the money won by the appeal is forbidden.

The winner, however, will only be reimbursed by the other side according to the Lawyers’ Scales of Fees Act (which is a flat-fee based on the value in dispute that, in many cases, is considerably lower than the costs incurred by the winning party).

Settlement of first instance judgment after appeal lodged

Can parties enter into a settlement agreement to vacate the trial court judgment after an appeal has been taken?

Yes.

Limits on settlement after commencement of appeal

Are there any limits on settlement once an appeal has been taken?

An out-of-court settlement is possible during any stage of the appeal’s process. A settlement in front of the court is only possible until the first-appeals court renders its decision or in a hearing in front of the appellate court, which is very rare.

Third-party funding

May third parties fund appeals?

Yes.

Disclosure of litigation funding

If litigation funding is permitted in an appeal, must funding sources be disclosed to the court or other parties to the litigation?

No.

Judgments, relief and non-parties

Decisions

Must appellate courts in your country write decisions explaining their rulings? Can the courts designate the precedential effect of their decisions?

In general, any decision must be explained. If, however, the appellate court deems the decision of the trial court to be reasonable and the appeal to be unsound, then it can keep the explanation very short and refer to the decision of the trial court (section 500a of the Austrian Code on Civil Procedure). The decision does not have to be explained if the Supreme Court refuses to accept the case.

Non-parties

Will the appellate courts in your country consider submissions from non-parties?

No.

Relief

What are the ordinary forms of relief that can be rendered by an appellate court in a civil dispute?

The appellate court usually renders a decision that:

  • lets the ruling stand;
  • overturns the ruling; or
  • vacates the ruling and sends it back to the trial court to make further material findings.