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Last update: 27-10-2006
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Enforcement of judgements - Austria

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TABLE OF CONTENTS

1. What does “enforcement” mean in civil and commercial matters? 1.
2. Under what conditions can a right be enforced? 2.
2.1. The procedure 2.1.
2.2. The essential requirements for consent to enforcement to be granted 2.2.
3. Enforcement measures 3.
3.1. Which of the debtor’s assets are subject to enforcement? 3.1.
3.2. What are the effects of enforcement measures? 3.2.
3.3. How long are enforcement measures permissible? Is the permissible duration restricted by law or by a court? 3.3.
4. Is there any appeal against approval for enforcement? Who can make this appeal? At which court must the appeal be lodged and within what time limit? What is the effect of making an appeal? 4.

 

1. What does “enforcement” mean in civil and commercial matters?

Enforcement (compulsory enforcement) is the application of State coercive force to implement enforceable claims.

The enforcement rules provide for various types of enforcement, a distinction being made on the one hand as to whether the executory title is directed at a pecuniary claim or at a claim for specific performance and, on the other hand, against which assets enforcement is to be levied.

If an executory title that is expressed in monetary terms is to be enforced on the debtor’s moveable assets, the following types of enforcement can be considered: enforcement upon moveable goods, enforcement on receivables, enforcement of a claim in claims for delivery up and enforcement in respect of other pecuniary rights. Enforcement upon moveable goods takes place in principle in three stages, namely seizure, realization and satisfaction.

Enforcement upon real estate involves the debtor’s immoveable assets and the enforcing creditor can choose between the compulsory creation of a lien, compulsory administration or compulsory sale by auction.

There is no single enforcement procedure for executory titles directed at a claim for specific performance. The following methods can be considered for enforcing the required action or omission: compulsory removal, substitute performance or penalties for contempt (fines and terms of imprisonment).

2. Under what conditions can a right be enforced?

2.1. The procedure

Both judicial and also non-judicial decisions can be enforceable rights.

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The non-judicial decisions include the following:

  • orders by the administrative authorities in respect of claims under private and public law and in respect of financial penalties and administrative fines, where enforcement is referred to the court, and settlements concluded in front of administrative authorities,
  • orders by social security providers in respect of benefit claims,
  • settlements and decisions by arbitration tribunals,
  • enforceable notarial instruments,
  • proofs of arrears.

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To levy execution, the enforcing creditor must in principle be in possession of confirmation of enforceability which is granted by the relevant authority in the procedure which establishes the right.

The court dealing with enforcement has jurisdiction in principle to consent to the enforcement. The district court always has substantive jurisdiction. Geographical jurisdiction is held by the registry court in respect of enforcement on properties entered in the land register and, in principle, the court in whose district the debtor is resident, in respect of enforcement on receivables. In all other cases, jurisdiction is held primarily by the court in whose district the enforcement item is located at the start of the enforcement or, in the alternative, the court in whose district the first enforcement measure is to be effected.

Only single judges and registrars have jurisdiction to make decisions in enforcement proceedings. Numerous functions are transferred, in enforcement matters, to registrars, who are federal officials with special training for this purpose. These functions include, in particular, enforcement upon the debtor’s moveable assets. However, enforcement on immoveable assets (with the exception of the compulsory creation of a lien, which is allocated to registrars) , the approval of enforcement on the basis of a foreign right, the imposition of imprisonment and decisions on appeals are however reserved for decision by judges.

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Enforcement actions are conducted by special enforcement officials, the court bailiffs. They are responsible for actually carrying out the enforcement, e.g. seizing moveable physical items, evictions, drawing up a list of the debtor’s assets, etc. Bailiffs are executives of the court and must comply with its orders and instructions. They are ordered to pursue enforcement measures until the order is complied with or it is apparent that it cannot be complied with.

It is not necessary to be represented by a lawyer in order to make an application for enforcement.

The following inclusive court fees apply to an application for enforcement, the value of the claim which is to be enforced being taken as the basis for calculation:

  • in enforcement proceedings with the exception of the proceedings referred to in paragraph (b) where the value of the contested subject-matter is as follows:

up to 150 Euro

13 Euro

more than 150 Euro

up to 360 Euro

29 Euro

more than 360 Euro

up to 730 Euro

34 Euro

more than 730 Euro

up to 2,180 Euro

46 Euro

more than 2,180 Euro

up to 3,630 Euro

62 Euro

more than 3,630 Euro

up to 7,270 Euro

79 Euro

more than 7,270 Euro

up to 36,340 Euro

114 Euro

more than 36,340 Euro

up to 72,670 Euro

138 Euro

more than 72,670 Euro, for every further 72,670 Euro or part thereof

138 Euro more in each case

  • in enforcement proceedings in respect of immoveable assets where the value of the contested subject-matter is as follows:

up to

150 Euro

26 Euro

more than 150 Euro

up to 360 Euro

34 Euro

more than 360 Euro

up to 730 Euro

44 Euro

more than 730 Euro

up to 2,180 Euro

62 Euro

more than 2,180 Euro

up to 3,630 Euro

86 Euro

more than 3,630 Euro

up to 7,270 Euro

132 Euro

more than 7,270 Euro

up to 36,340 Euro

190 Euro

more than 36,340 Euro

up to 72,670 Euro

305 Euro

more than 72,670 Euro, for every further 72,670 Euro or part thereof

2.2. The essential requirements for consent to enforcement to be granted

In order for approval for enforcement to be given, it is necessary for the general enforcement requirements to be met (domestic jurisdiction, admissibility of legal proceedings, capacity to be a party, capacity to bring proceedings and the intervening party’s authorization) and also the special enforcement requirements must be met (jurisdiction of the court concerned, existence of an executory title and confirmation of enforceability, the necessary content of the enforcement application, the enforcement item being subject to enforcement). Additionally, the application for enforcement must be substantively well founded (it is basically necessary for the parties referred to in the application to coincide with those referred to in the title, and the claim must in principle have arisen and the period for payment must have expired).

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3. Enforcement measures

3.1. Which of the debtor’s assets are subject to enforcement?

Although in principle a debtor’s entire assets are liable to meet his commitments, compulsory enforcement, unlike bankruptcy, covers only individual assets of the debtor (the speciality principle). A number of creditors will normally have access to various assets. If the satisfaction fund is not sufficient, assets which have already been attached must be subsequently attached. In these cases, the creditors are satisfied strictly in accordance with the priority principle: the creditor who first attaches an asset takes precedence over the others. Where there is simultaneous attachment in favour of a number of creditors, they will rank on an equal footing.

For the protection of the debtor, certain items are exempt from enforcement, for example household goods in accordance with a modest lifestyle, items necessary for the exercise of an occupation in the case of small traders and small farmers, food and fuel necessary for four weeks for the debtor and the family members living with him in the joint household, cash consistent with a minimum subsistence, means to make good a disability and therapeutic treatments, family pictures, letters, etc. Similar protection against seizure also exists in the case of enforcement on receivables: there can be no seizure of receivables in respect of expenditure repayments, nursing care benefits or family assistance. Regular income and pension payments can be seized to a limited extent, the level of the portion which cannot be seized (“the minimum subsistence level”) being dependent on how high the payments are and how many maintenance obligations the debtor has.

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3.2. What are the effects of enforcement measures?

Dispositions by the debtor in respect of his assets are in principle legally valid although enforcement has been commenced but they may have consequences under the criminal law if he sells part of his assets or reduces his assets and thereby frustrates or reduces a creditor’s satisfaction. There are also possible consequences under the criminal law if the debtor removes an item which has been officially seized. If the enforceability of a creditor’s claim has been adversely affected by a legal act on the part of the debtor, the creditor is able, under certain conditions, to challenge this legal act by court proceedings, to have it declared invalid and to claim the assets which the debtor has removed from creditor satisfaction in order to cover his claim.

Execution on the debtor’s bank credit balances is effected by attachment and transfer: the approval for enforcement contains an order forbidding the institution where the account is held from making payment to the debtor and an order forbidding the debtor from disposing of the claim against the institution. The attachment is effected when the approval for enforcement is served on the institution where the account is held. The institution where the account is held must subsequently make a statement to the court and to the enforcing creditor as to the existence and extent of the receivable. The attached receivable is realized by being transferred. The order upholding the application for a transfer gives the enforcing creditor the right to demand payment from the third-party debtor (the institution where the account is held) , if necessary also by proceedings. If the bank makes payments to the account holder although the account has been attached, such payments do not have the effect of discharging its debt.

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3.3. How long are enforcement measures permissible? Is the permissible duration restricted by law or by a court?

Approval for enforcement (for purposes of satisfaction) is granted for an unlimited period. (Only enforcements for the purposes of security and interim injunctions are approved for just a limited period).

The court bailiffs must halt the enforcement if the claim is satisfied or deferred or if continuation of enforcement is waived, if this is asserted by the creditor or if the debtor is able to prove it by a public document or a publicly certified document.

Additionally, the debtor or a third party with a prima facie interest in postponement can request that enforcement be postponed. The act contains a limitative list of the grounds for postponement, including in particular enforcement proceedings and appeal proceedings. If it can be assumed that the postponement of enforcement would endanger the satisfaction of the enforcing creditor’s claim, postponement may be approved only if the applicant for the postponement provides appropriate security.

The enforcement procedure must also be suspended on application by the enforcing creditor, the debtor or another party involved if, for example, the enforcing creditor waives the continuation of the enforcement, if the debtor certifies by means of qualified documents that the claim has been satisfied or deferred or if the executory title is subsequently declared invalid as a result of annulment proceedings or proceedings for revision. Where approval for enforcement has been incorrectly given or where there are serious defects in the conduct of the enforcement (for example enforcements being inadmissibly carried out for no purpose when the debtor’s available assets do not even cover the costs of the procedure) , the enforcement procedure shall also be automatically terminated.

4. Is there any appeal against approval for enforcement? Who can make this appeal? At which court must the appeal be lodged and within what time limit? What is the effect of making an appeal?

There is the right of appeal, which is an ascending and non-postponing legal remedy, against the approval of enforcement (and, unless otherwise provided for by law, against the other orders made at first instance during the enforcement procedure). The appeal must be lodged at the enforcement court within 14 days. The parties to the enforcement procedure are authorized to bring the appeal. Appealing against the approval of the enforcement constitutes a ground for the postponement of enforcement. Additionally, it is also possible for the debtor under certain circumstances (e.g. waiver of enforcement) to claim, by proceedings against the enforcing creditor, that the individual approval for enforcement was inadmissible.



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Last update: 27-10-2006

 
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