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Last update: 17-11-2006
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Jurisdiction of the courts - Austria

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TABLE OF CONTENTS

A. Does my action have to be brought before an ordinary court or a specialist court? A.
B. How do I obtain information on where exactly to file a suit in the case of jurisdiction by an ordinary court? B.
I. Is there a difference between inferior and superior courts of first instance? If there is, which of them is competent to deal with my case? I.
II. Territorial jurisdiction II.
1. The basic rule of territorial jurisdiction 1.
2. The basic rule of territorial jurisdiction 2.
a) In which cases can I choose between a court at the defendant's domicile (as required by the basic rule) and a different court? a)
b) In which cases do I have to file a suit with a court which is not at the defendant's domicile (as required by the basic rule)? b)
c) Can the parties to a lawsuit agree on the jurisdiction of a court which would not normally be competent? c)
C. How do I obtain information on where to file a suit in the case of the jurisdiction of a specialist court? C.

 

A. Does my action have to be brought before an ordinary court or a specialist court?

In civil cases, jurisdiction in the first instance is exercised by District Courts (Bezirksgerichte) and Provincial Courts (Landesgerichte). Outside Vienna, District Courts and Provincial Courts also hear commercial cases. In addition, Provincial Courts pass judgement in cases involving labour and social welfare law. Vienna is alone in having its own District Court dealing with commercial matters, its own Commercial Court and its own Court for Labour and Social Welfare Law.

Please see the fact sheet on the organisation of courts for the demarcation between the jurisdiction of District Courts (Bezirksgerichte) and Provincial Courts (Landesgerichte), and the jurisdiction of courts dealing with commercial matters and with labour and public welfare law.

B. How do I obtain information on where exactly to file a suit in the case of jurisdiction by an ordinary court?

I. Is there a difference between inferior and superior courts of first instance? If there is, which of them is competent to deal with my case?

The basic demarcation in jurisdiction is made according to the type of action, for all other matters it depends on the value in dispute. Jurisdiction according to the type of action always takes precedence over jurisdiction according to the extent of value in dispute.

Jurisdiction based on the extent of the value in dispute applies in District Courts (Bezirksgerichte) where the value in dispute is less than 10 000 euros. District Courts have jurisdiction according to the type of action, for instance, in most cases involving family law or the law of tenure.

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Jurisdiction on the basis of the extent of the value in dispute applies in Provincial Courts (Landesgerichte) in cases where the value in dispute is 10 000 euros or more. Jurisdiction according to the type of action applies in Provincial Courts in disputes relating to the Atomic Liability Act, the Public Liability Act, the Data Protection Act and the Acts relating to competition and intellectual property.

II. Territorial jurisdiction

1. The basic rule of territorial jurisdiction

Every person is accorded a place of general jurisdiction based on the relationship of his person to a court district. As a rule, cases are initiated in the place of general jurisdiction of the defendant. The place of general jurisdiction of a natural person is based as a rule on the person's legal or habitual residence; one person can also be accorded several places of general jurisdiction. The place of general jurisdiction of a juristic person mostly depends on the location of its registered office.

2. The basic rule of territorial jurisdiction
a) In which cases can I choose between a court at the defendant's domicile (as required by the basic rule) and a different court?

In some cases, actions can be initiated not only according to the defendant's place of general jurisdiction, but also optionally in another jurisdiction, an elective venue. The Austrian Law of Judicature recognises more than twenty different elective venues for civil proceedings alone, for dealing with contractual and statutory relationships under the law of obligations or various claims under the law of property, as well as elective venues of a procedural kind. These might include the forum of the place of performance or the place named on the invoice. They could be the forum rei sitae (jurisdiction at the place where the subject matter in controversy is situated) or the place where damage was inflicted, or else the place of a cross-action. The ways in which these are dealt with can sometimes vary greatly from other comparable European and national rules on jurisdiction.

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Austrian law provides for the following places of jurisdiction in the case of the claims listed below:

For claims arising from contracts (but not for claims arising from employment contracts): actions to determine the existence or non-existence of a contract, actions to demand the performance of, or the rescinding of a contract, as well as actions brought to demand compensation for non-performance or partial performance of a contract can all be brought at the court where performance of the contract is required of the defendant, according to the agreement of the parties. (The place of jurisdiction is the place of performance.) The agreement must be documented.

For maintenance claims: see the fact sheet on maintenance claims.

For liability in tort: disputes over damages arising from the manslaughter of, or the injury to one or several persons and damages arising from false imprisonment or bodily harm can also be heard in the court in whose district the conduct which caused the damage took place. (Jurisdiction according to the infliction of damage.)

For cases of damages claimed under civil law as a result of criminal acts: damages which are claimed under civil law as a result of criminal acts can be asserted at the court at which the criminal proceedings have been initiated.

For divorce petitions: see the fact sheet on divorce.

For custody petitions: see the fact sheet on parental responsibility.

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b) In which cases do I have to file a suit with a court which is not at the defendant's domicile (as required by the basic rule)?

In other cases there is a particular place of jurisdiction where the suit has to be initiated, which excludes both the place of general jurisdiction and elective venues. We use the expression compulsory place of jurisdiction to denote an exclusive place of jurisdiction which cannot be deviated from, even if the parties have agreed upon a place of jurisdiction. Exclusive places of jurisdiction exist above all in matrimonial and family law, but are not confined to these. Exclusive places of jurisdiction could be, for instance, jurisdiction in disputes arising from matrimonial relationships or matters of probate. They could also include jurisdiction in disputes arising from partial debenture or from relations within an association. The ways in which these things are dealt with can sometimes vary greatly from other comparable European or national rules on jurisdiction.

c) Can the parties to a lawsuit agree on the jurisdiction of a court which would not normally be competent?

If there is no compulsory place of jurisdiction, the parties can also submit to jurisdiction by one or several courts of the first instance at named places by giving their express agreement. In the same way, they can exclude such courts as would otherwise be competent. The agreement must either refer to a particular legal dispute or to legal disputes arising from a particular legal dispute or legal relationship. There is no compulsory legal form for concluding agreement on a place of jurisdiction. However, it must be possible to prove documentation of the agreement, should this be disputed during the course of the proceedings.

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It is thus possible for the parties to amend immediate legal jurisdiction according to both subject matter and place, or to the one or the other. An agreement on jurisdiction of this kind is permitted before legal proceedings begin, and it can even be agreed upon at the start of the proceedings. Agreement on the jurisdiction of a court according to subject matter is possible where this involves a move from the court of first instance to a District court, provided that the court has jurisdiction on the basis of the extent of the value in dispute. This applies to both general and commercial juridsiction.

It is possible to alter a place of jurisdiction so long as this is not expressly ruled out. If a legal regulation states that a change in jurisdiction is not permissible, this is a case of compulsory place of jurisdiction. An alteration in the place of jurisdiction is, for example, not permissible, or only permissible to a limited extent, if competence is determined under the following sections of Austrian law: Section 14 KschG (Consumer Protection Act), Section 83a, Section 83b JN (rules on jurisdiction), Section 48 VersicherungsvertragsG (the law relating to the conclusion of insurance agreements), Section 42 AtomhaftpflichtG (Atomic Liability Act) and Section 532 ZPO (Code of Civil Procedure).

C. How do I obtain information on where to file a suit in the case of the jurisdiction of a specialist court?

It is only in Vienna that there are specialist courts for commercial matters: the District Court for Commercial Matters (Bezirksgericht für Handelssachen) and the Vienna Commercial Court (Handelsgericht Wien). Vienna is also alone in having a specialist court for labour and social welfare law (Arbeits- und Sozialgericht Wien). In all other areas, cases involving commercial law and labour and social welfare law are dealt with in the general courts. The place of jurisdiction in commercial matters and matters concerning labour and social welfare law is therefore regulated according to the regulations for general civil proceedings.

« Jurisdiction of the courts - General information | Austria - General information »

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Last update: 17-11-2006

 
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