European Commission > EJN > Bringing a case to court > Austria

Last update: 24-10-2006
Printable version Bookmark this page

Bringing a case to court - Austria

Imagine a situation in which you are in dispute with a company, a professional person, your employer, a member of your family or somebody else in your own country or abroad. In order to solve this problem, you ask yourself a number of questions:



 

TABLE OF CONTENTS

1. Do I have to go to Court? 1.
2. Am I still in time to bring a court action? 2.
3. Am I sure that I should go to a court in Austria? 3.
4. If yes, which particular court should I go to in Austria, given where I live and where the other party lives, or other aspects of my case? 4.
5. Which particular court should I go to in this Member State, given the nature of my case and the amount at stake? 5.
6. Can I bring a court action by myself or do I have to ask an intermediary, such as to be represented by a solicitor? 6.
7. Who exactly do I apply to: to the reception office or the office of the clerk of the court or any other administration? 7.
8. In which language can I make my application? Can I do it orally or does it have to be in writing? Can I send my application by fax or by e-mail? 8.
9. Are there special forms for bringing actions, or, if not, how must I present my case? Are there elements that have to be included in the file? 9.
10. Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the introduction of my application? 10.
11. Can I claim legal aid? ('legal aid' theme) 11.
12. From which moment is my action officially considered to have been brought? Will the authorities give me some confirmation that my case has been properly presented? 12.
13. Will I have detailed information about the timing of subsequent events (such as the time allowed for me to enter an appearance)? 13.

 

PRELIMINARY QUESTIONS BEFORE BRINGING A CASE TO COURT

1. Do I have to go to Court?

It might be better to use alternative dispute resolutions procedures. See this theme.

2. Am I still in time to bring a court action?

Time limits for bringing court actions vary according to the case. This question of time limits can be clarified with a legal adviser or at an information office to citizens on access to law.

3. Am I sure that I should go to a court in Austria?

See the 'Jurisdiction of the courts' theme.

4. If yes, which particular court should I go to in Austria, given where I live and where the other party lives, or other aspects of my case?

See the 'Jurisdiction of the courts - Austria' theme.

5. Which particular court should I go to in this Member State, given the nature of my case and the amount at stake?

See the 'Jurisdiction of the courts - Austria' theme.

TopTop

STEPS TO FOLLOW TO BRING A CASE TO COURT

6. Can I bring a court action by myself or do I have to ask an intermediary, such as to be represented by a solicitor?

In civil and commercial matters to be settled through the courts, complaints lodged with the district courts (which are normally responsible for disputes involving up to €10 000 euros) must be signed by a lawyer if the amount involved is more than €4 000. This obligation does not, however, apply if the complaint has to be lodged with the district courts regardless of the amount involved (i.e. even where disputes involve more than €10 000). (In particular, this means disputes about descent, statutory maintenance payments, and divorce, disputes arising from the relationship between marriage partners or between parents and children, disputes about the fixing or adjustment of property boundaries, tied accommodation and provision for retired farmers, disputes due to disturbance of possession and disputes arising from rental and usage contracts for residential and business premises, including car-parking spaces and garages, from tenancy/ usufructuary leases concerning real property and enterprises with real property assets, and disputes arising from the contractual relationship between ships' masters, transporters, hoteliers, innkeepers and the like and their principals, travellers or guests).

The obligation to engage a lawyer does not apply to complaints that are to be settled through out-of-court proceedings.

So where legal representation before the district courts is not compulsory, anyone can lodge a written complaint or application initiating proceedings with the court.

TopTop

In civil and commercial matters to be settled through the courts, complaints lodged with the regional courts must normally always be signed by a lawyer. The regional courts have jurisdiction over all complaints for which the district courts do not have jurisdiction, and in particular disputes concerning industrial property, unfair competition and applications for prohibitory injunctions by consumer protection associations, regardless of the amount involved.

The obligation to engage a lawyer does not apply to complaints that have to be settled in the labour- or social courts (proceedings under the ASGG), i.e. in particular claims by employees against their employer arising from their employment relationship.

7. Who exactly do I apply to: to the reception office or the office of the clerk of the court or any other administration?

Written complaints must be sent to the court's postal address.
However, if you are not represented by a lawyer you may also lodge a complaint orally in the appropriate department of the district court or of the district court in whose area of jurisdiction the party is currently residing (under supervision by the judge) on any official business day. The appropriate department of the court is specified in the court's allocation of business, and information can be obtained by telephone or on the spot during official working hours. The official business day hours of the district court (at least one half day every week) can be found on the homepage de of the Federal Ministry of Justice under the heading “Gerichtsdatenbank” or by telephoning the court - at least during normal business hours (usually 8.00 to 16.00 Mondays to Fridays, except holidays).

TopTop

8. In which language can I make my application? Can I do it orally or does it have to be in writing? Can I send my application by fax or by e-mail?

The language of business for all courts is German. In some courts the use of Burgenland-Croat, Hungarian or Slovenian is permitted for minority language groups.

Complaints or applications to start proceedings must be in writing. However, where legal representation is not compulsory, they may also be made orally - as indicated under Question 7 - at the relevant district court. Where complaints are sent to the court by fax or e-mail the court is likely to issue instructions for them to be corrected. Complaints can be submitted electronically through the closed electronic legal business system (ERV), which is accessible upon application (only worthwhile if you bring numerous actions before the Austrian courts).

9. Are there special forms for bringing actions, or, if not, how must I present my case? Are there elements that have to be included in the file?

The only compulsory forms are for payment claims (Mahnklagen), aimed at obtaining a conditional payment order from the court. From 1.1.2003 actions for payment of up to €30 000 must be brought under this procedure (Mahnverfahren). The appropriate forms can be obtained from the court or printed out via the homepage de of the Federal Ministry of Justice.

TopTop

There are optional forms for a court order terminating a lease contract for a dwelling or business premises.

Any complaint may be accompanied by all appropriate documents in support of the claim (= in as many copies as the complaint itself, see Question 12). Any written agreements on the place of jurisdiction or domestic jurisdiction (agreements on jurisdiction — Zuständigkeitsvereinbarungen) must be enclosed with the complaint. The same applies to written agreements on the place of performance of a contract if the complainant wishes to rely on that place of jurisdiction, and in other special cases in terms of jurisdiction or procedure (for instance the procedure for enforcing payment of a bill of exchange).

10. Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the introduction of my application?

In any civil action, court fees become payable as soon as the application is lodged with the court; they are intended to cover the overall cost of action at first instance and always depend on the subsequent outcome of the complaint. The amount is usually determined on a graduated scale according to the amount in dispute. The fees can be paid either on the spot in cash or by bank or credit card, or else by bank transfer to the court's account, indicating “court fees” (“ Gerichtsgebühren” ) and the names of the parties.

How the lawyer's fees are to be paid is a matter for individual agreement; the same applies as regards the amount of those fees (unless payment has been agreed in accordance with the Legal Fees Act (Rechtsanwaltstarifgesetz) or the Independent Fee Guidelines (Autonome Honorarrichtlinien)). Compensation from the opposing party is normally obtained only after the final decision in the proceedings depending on how successful the action is.

TopTop

11. Can I claim legal aid? ('legal aid' theme)

Legal aid is available before proceedings begin

  • in the shape of free legal information from the courts on official business days and telephone information from the Federal Ministry of Justice and
  • in the shape of free legal advice on first consultation of a lawyer at the free advice centres (Unentgeltliche Beratungsstellen) of the Austrian Laywers' Association (Rechtsanwaltskammer) or from the lawyers indicated by them.

Parties who satisfy the relevant financial and substantive conditions can apply to the appropriate court (the court hearing the case or the court at your place of residence) for legal aid, before lodging an action with the court, in respect of the submission of a complaint and/or the entire further court proceedings.

FOLLOW-UP

12. From which moment is my action officially considered to have been brought? Will the authorities give me some confirmation that my case has been properly presented?

An action is officially considered to have been lodged upon receipt by the competent (or at least theoretically competent) court. It is considered to be properly presented if it does not give grounds for immediate rejection or for correction by the court (in other words if it appears fit to be dealt with in accordance with the rules of procedure). A written complaint must be submitted with as many copies as there are parties (one copy for the court, one for each opposing party). If it contains errors in terms of form and/or content, the court is likely to issue instructions for it to be corrected, also indicating the consequences of failure to make the corrections in due time. Confirmation of receipt is normally given only on request, but under the electronic legal business system (ERV) it is automatic.

TopTop

13. Will I have detailed information about the timing of subsequent events (such as the time allowed for me to enter an appearance)?

In proceedings for a payment order, the form for submitting the claim includes an application to be sent an enforceable copy of the payment order. So the complainant automatically receives either an enforceable copy of the payment order (Exekutionstitel) or a copy or notice of any appeal submitted in good time by the other party, usually together with a summons to an oral hearing (the start of the regular procedure). There is currently no lower time limit for a summons in proceedings before the district court, but in proceedings before the regional court it will be at least three weeks from 1.1.2003.

In proceedings for a court order terminating a lease contract for a dwelling or business premises, you must make a separate application for an enforceable copy of the termination order. If the person being served notice raises objections within the time allowed (four weeks), the party giving notice is automatically informed and usually summoned to attend an oral hearing at the same time.

Apart from special types of procedure (such as for orders to enforce payment, payment of bills and termination of leases), in cases in the district courts, the complaint is normally sent to the defendant automatically once it has been received (and after any correction procedure) together with a summons to appear at an oral hearing; at the same time the court will also summon the complainant. In cases before the regional courts, the complaint sent to the defendant is automatically accompanied by a request for a written response (and the defendant is informed that he must use the services of a lawyer). If the defendant fails to answer the complaint in time, the court - on application by the complainant - delivers a judgment by default; otherwise proceedings are suspended. If the complaint is answered in time, the complainant receives a copy of the response, often together with a summons to the oral hearing.

Information about the precise sequence of the procedural stages already decided by the court or the current state of proceedings (at any stage) can be obtained by telephoning the court department responsible (registry = Kanzlei) direct during normal business hours and giving the file number.

At the preparatory sitting (the first session of the oral hearing) the further course of the proceedings (especially as regards timing) is discussed with the parties, for whom attendance in person is compulsory unless their representative is sufficiently informed about the facts, and the court then takes a decision which is set out in the form of a timetable and entered in the record of the proceedings. The parties (or their representatives) are sent a copy of the record. Changes in the timetable have to be notified to the parties or discussed with them where this is deemed appropriate.

Further information

for general information on how the courts are organised and on the legal system, see:
  • The homepage de of the Federal Ministry of Justice, and
  • the Rechtsinformationssystem de of the Federal Chancellor's Office, which is also accessible via the list of links on the Federal Ministry of Justice homepage).
A knowledge of German is necessary. The lists of links on both web sites also include the homepages of the lawyers' associations (Rechtsanwaltskammern), some of which are available in English.

« Bringing a case to court - General information | Austria - General information »

TopTop

Last update: 24-10-2006

 
  • Community law
  • International law

  • Belgium
  • Bulgaria
  • Czech Republic
  • Denmark
  • Germany
  • Estonia
  • Ireland
  • Greece
  • Spain
  • France
  • Italy
  • Cyprus
  • Latvia
  • Lithuania
  • Luxembourg
  • Hungary
  • Malta
  • Netherlands
  • Austria
  • Poland
  • Portugal
  • Romania
  • Slovenia
  • Slovakia
  • Finland
  • Sweden
  • United Kingdom