European Commission > EJN > Interim and precautionary measures > Austria

Last update: 09-10-2006
Printable version Bookmark this page

Interim and precautionary measures - Austria

EJN logo

This page is now obsolete. The original language version has been updated and moved to the European e-Justice Portal.


 

TABLE OF CONTENTS

1. What are the different types of measures? 1.
2. What are the conditions under which such measures may be issued? 2.
2.1. Please describe the procedure 2.1.
2.2. Please describe the substantive conditions 2.2.
3. Object and nature of such measures 3.
3.1. What types of assets can be subject to such measures? 3.1.
3.2. What are the effects of such measures? 3.2.
3.3. What is the validity of such measures 3.3.
4. Is there a possibility of appeal against the measure? 4.
5. Special arrangements for matters coming under family law 5.

 

1. What are the different types of measures?

Interim and precautionary measures are known collectively as precautionary procedures. Austrian law lays down the following precautionary procedures:

  • obtaining evidence;
  • execution in respect of the realisation of assets;
  • interim injunctions.

All these precautionary procedures have the common feature that the parties do not have to prove their claims but simply have to prove them, i.e. provide sufficient evidence to the court.

Interim injunctions are the most important of these, which is why the following illustrations are restricted to interim injunctions.

Interim injunctions are court rulings in the form of a decision, by which a future execution is assured or whereby currently prevailing circumstances are specified and maintained for a definite period or the provisional satisfaction of a party’s claim is achieved.

Interim injunctions are further subdivided into the following types:

  • to secure a claim to the payment of money;
  • to secure a claim to the performance of some action;
  • to secure a right or legal set of circumstances.

2. What are the conditions under which such measures may be issued?

2.1. Please describe the procedure

Interim injunctions are delivered only upon application. The parties are known as the ‘injured party’ and the ‘opponent of the injured party’. Responsibility for delivering an interim injunction rests with

TopTop

  • the court with the appropriate jurisdiction hearing a case which is already pending;
  • the executing court hearing the execution proceedings;
  • before the investigative proceedings or between the investigative phase and the execution phase of the hearing, any district court in the district of which the opponent has his usual place of residence;
  • subsidiary to that, the place of jurisdiction of the subject of the injunction or the permanent or temporary place of residence of the third party debtor or the district court which hears the first enforcement hearing.

Since the case proceeds according to the regulations of execution law, there is no need for legal representation in first instance hearings.

Where real enforcement acts are to be carried out – as, for example, custody ordered by the court – these are carried out through official channels (by the bailiff). The costs of an interim injunction, which depend on the value of the claim being asserted, must initially be borne by the applicant. The applicant is entitled to reimbursement of costs only when he has succeeded in the main proceedings – this claim to reimbursement is generally made as part of the main proceedings. However, the opponent of the application is entitled to reimbursement of costs at the time of the ruling on the interim injunction if he is successful in the respective hearing.

2.2. Please describe the substantive conditions

The necessary condition for delivery of an interim injunction is an application from the injured party, in which

  1. a money debt, a claim not to money but to some other performance or a disputed right or set of legal circumstances is asserted and authenticated;
  2. a risk is asserted and authenticated;
    • for an interim injunction to secure a money debt, a subjective risk must be authenticated – this means a certification to the effect that without the interim injunction the opponent would by his own actions frustrate or obstruct collection of the money debt.
    • for the other types of interim injunctions, only an objective risk needs to be authenticated, i.e. to the effect that without delivery of the interim injunction the legal prosecution or realisation of the claim would be frustrated or significantly obstructed, in particular through changes to the prevailing condition of the subject of the injunction.
    • In both interim injunctions for securing money debts and in the other types of interim injunctions, evidence that the claim would have to be enforced in states where the Jurisdiction (Brussels I) Regulation does not apply or which have not ratified either the Brussels or the Lugano Convention, is a sufficient form of authentication of the risk.

3. Object and nature of such measures

3.1. What types of assets can be subject to such measures?

The means of realising a debt are listed taxatively in the Execution Code. These are:

TopTop

  • the storage and administration of movable assets;
  • prohibiting the debtor from disposing of or pledging movable physical assets;
  • third-party prohibition;
  • administration of real estate property of the opponent of the injured party;
  • prohibiting the debtor from disposing of or encumbering real estate property or rights registered in the Land Register.
3.2. What are the effects of such measures?

The effects differ according to the type of realisation. The storage and administration of movable physical assets has the effect of removing these items from the direct personal influence of the injured party’s opponent. This means that any rights of disposal over the stored and administered items become in effect void. The law allows the court wide powers of discretion as regards ‘necessary or useful’ dispositions over the items while they are subject to storage and administration to prevent their deterioration leading to loss of value or proceeds. These dispositions can cover, for example, the sale of stored items which are perishable.

Any dispositions over the movable physical items which violate the prohibition on their being disposed of or pledged are void in their entirety. 

The court’s third-party prohibition is enforced in that the opponent of the injured party is denied any rights of disposal over the claim he has against this third party and in particular is denied the right to assert the claim. At the same time, an order is addressed to the third party not to pay the opponent of the injured party any sum owed to him until further notice from the court and neither to deliver any items due to him nor to perform any other action which could frustrate or significantly obstruct the execution with regard to the debt or the items which are owed or deliverable. It is therefore allowable to prohibit the third-party debtor only from fulfilling an obligation or from forbearing from the fulfilment, but not allowable to require him to make payments to the injured party or to forbid him to exercise any particular right. Non-compliance by the third party with the prohibition will render him liable to pay damages. However, whether or not rights of disposal of the third party conflicting with the prohibition are in themselves void is not explicitly laid down in law and legal opinion in Austria is divided on this subject.

TopTop

An administrator appointed and thereafter supervised by the court undertakes the administration of real estate property belonging to the opponent of the injured party.

An entry is made in the Land Register of the fact that the debtor is prohibited from disposing of or encumbering his properties or rights which have been entered in the Land Register. In accordance with this entry, voluntary rights of disposal of the injured party’s opponent over the real estate property or right and the corresponding entries in the Land Register are allowable and realisable but only subject to certain conditions with regard to the injured party. It is only if the injured party’s claim is definitively dismissed by the court or if the interim injunction is otherwise rescinded that the third party comes fully into possession of his rights, including with regard to the injured party and the prohibition can be allowed to lapse.

3.3. What is the validity of such measures

An interim injunction is enforceable only for a specified period though it can be prolonged upon application of the injured party. If the interim injunction is ordered outside of an investigative hearing, the court must, to allow the suit or execution application to be brought, set a reasonable period in which grounds should be adduced in support of the suit concerning the secured claim. The opponent of the application can stay the enforcement of the injunction and effect the rescission of the injunctions already enforced by lodging a redemption amount.

An interim injunction must be rescinded either upon application or by official channels if

  • the period for adducing grounds has elapsed without any further action;
  • the interim injunction had been enforced with a scope greater than was necessary for the protection of the injured party;
  • the conditions justifying the injunction no longer prevail:
  • the opponent of the injured party has paid in a redemption sum or a security;
  • the grounds for the injunction no longer prevail.

4. Is there a possibility of appeal against the measure?

The proceedings leading to the delivery of an interim injunction allow of two legal remedies, which have no delaying effect:

TopTop

  • Appeal against the interim injunction: The opponent of the injured party can, if he has not previously been heard, lodge an appeal within 14 days. New evidence can be brought in order to ensure a fair hearing. The court of first instance rules on the appeal in an oral hearing not open to the public and delivers a decision.
  • An appeal is also possible against decisions in the proceedings on interim injunctions. 14 days are allowed for such an appeal. The proceedings for lodging such an appeal are purely written proceedings and no new evidence may be brought. It is also permissible to lodge such an appeal against a confirmed decision to deliver an interim injunction but not however when an interim injunction has been dismissed.

5. Special arrangements for matters coming under family law

In family law matters, the law covers four particular sets of circumstances:

  • Designation of interim accommodation for a (divorced) spouse
  • Designation of interim accommodation for a child
  • interim injunctions to prevent violence in the family and
  • an interim settlement, use or safeguard with regard to the available marital funds and savings.

Amongst these special arrangements for family law matters, special importance is attached to interim injunctions to prevent violence in the family. Since the Prevention of Violence Law came into force on 1 May 1997, there has been in Austria a very efficient and straightforwardly structured system for preventing violence in the family, which enables a violent family member to be excluded from the family and forbidden to return. In particular, the system fosters close co-operation between the police, the family court, the intermediary body for the prevention of violence in the family and – if minors are involved – the youth welfare service. 

TopTop

Policing legislation empowers the forces of law and order to impose an exclusion order or ban on entering certain areas of up to 10 days’ duration if there has been a dangerous attack on life, health or liberty. If an application has been made to the court for an interim injunction, the period is prolonged up to a maximum of 20 days. The police are also obliged to inform the intermediary body so that support can be offered to the person at whom the violence was directed.

Any person whose behaviour towards a close family member makes it unreasonable for cohabitation to continue, whether it be by physical attack, threat of attack or by conduct conducive to the significant impairment of a person’s psychic health, must be ordered by the court, upon application of the injured party,

  • to quit the dwelling and its immediate vicinity and
  • not to return to the dwelling or its immediate vicinity as long as the dwelling serves to satisfy the urgent need for accommodation of the applicant.

In addition, the court can ban the excluded person from being in certain specified locations (such as outside the home, outside the child’s school) and can order the said person to refrain from meeting or contacting the applicant provided that some serious interest of the opponent is not thereby violated.

If an interim injunction is delivered in connection with proceedings on the principal case, such as, for example, in connection with divorce proceedings, termination or annulment of the marriage, proceedings for the division of assets or settlement of rights of usage of the marital home, then the interim injunction will apply until the legally definitive conclusion of the main proceedings. An interim injunction can be delivered irrespective of whether or not the parties continue to live together and independently of the main proceedings. However, so long as such proceedings are not pending, the period for which such an injunction can be delivered cannot exceed three months.

If the conditions for doing so are in existence, an interim injunction must be enforced immediately, either upon application or by official channels. In so doing, the enforcement agent/agency (bailiff) must see the opponent of the application out of the dwelling, take from the said opponent all the keys to the dwelling and lodge them with the court. In connection with enforcement of interim injunctions for the prevention of violence in the family, the court can order the law and order agencies to call in the public law and order enforcement services that they have at their disposal. In practice, this is a very frequent occurrence, so that interim injunctions for the prevention of violence in the family are generally not enforced by the bailiff but by the public law and order enforcement services.

« Interim and precautionary measures - General information | Austria - General information »

TopTop

Last update: 09-10-2006

 
  • 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