in important cases
in important cases
in second instance
Court of First Instance
PANEL OF JUDGES JUDGE SITTING ALONE
in first instance
Amount in dispute over EUR 10.000
Amount in dispute of up to EUR 10.000 and specific cases
(e.g. matters relating to family law and tenancy agreements)
Civil-law matters not under the jurisdiction of the commercial or labour courts [Handels-/Arbeitsgericht], or those for which there is provision for non-contentious legal proceedings, are determined in general civil procedure.
There are in principle two different sequences of courts, each of which may be divided into three stages. In the first instance disputes are assigned to either the local or regional courts. In principle, the demarcation of jurisdiction depends on the nature of the dispute (subject-matter jurisdiction); in all other matters it is determined by the value of the subject in dispute (monetary jurisdiction). Subject-matter jurisdiction always takes precedence over monetary jurisdiction.
Local courts have monetary jurisdiction in cases involving a value in dispute of up to EUR 10 000 and subject-matter jurisdiction in most disputes relating to family law or tenancy agreements. An appeal on points of fact and law goes to the regional court, where an appeal panel decides the appeal. In particularly important cases concerning legal issues of fundamental importance, a further appeal against the result of the first appeal may be made to the Supreme Court.
Regional courts have monetary jurisdiction in cases involving a value in dispute over EUR 10 000 and subject-matter jurisdiction in disputes pursuant to the Austrian Nuclear Liability Act [Atomhaftpflichtgesetz], Public Liability Act [Amtshaftungsgesetz], Data Protection Act [Datenschutzgesetz] and in cases of unfair competition and breach of copyright. An appeal on points of fact and law goes in the second instance to the Higher Regional Court. In particularly important cases concerning legal issues of fundamental importance, a further appeal may be made to the Supreme Court.
In the first instance, the vast majority of cases are tried by a single judge (and only in disputes over EUR 50 000 and at the request of one of the parties by a panel of three judges). In the second instance, cases are tried by a panel of three judges, or five judges in the Supreme Court. Where the case involves a legal issue of fundamental importance (such as a change to established jurisprudence), the Supreme Court convenes an augmented panel of eleven judges.
First-instance judgments may be challenged by means of an appeal on points of fact and law. An appeal on points of fact and law may be lodged in all cases on the grounds of invalidity or mistaken legal judgment, in specific matters or in any case above a value in dispute of EUR 2 000 on the grounds of procedural errors or establishment of incorrect facts.
The Courts of Second Instance are only called upon to review the first-instance judgment. This means that in principle they decide the matter only on the basis of the motions for judgment available at the conclusion of the oral proceedings in the Court of First Instance and the submission of facts as at this point. The Courts of Second Instance may decide the case itself (to confirm or amend the judgment). To this end, within the frameworks defined by the motions and submissions in the Court of First Instance, they may repeat or extend all or some of the proceedings, overturn the decision of the Court of First Instance and instruct the same to retry the matter, or reject the action.
Second-instance judgments may be challenged by means of an appeal on points of law. This form of appeal to the Supreme Court is, however, subject to various restrictions, depending on the matter in question. In principle the Supreme Court adjudicates only on legal issues of considerable importance, the existence thereof being a prerequisite for the Supreme Court accepting an appeal on points of law. Irrespective of this, in certain matters appeals against second-instance judgments are not allowed below a value in dispute of EUR 4 000 while, if the value in dispute does not exceed EUR 20 000, the appeal on points of law to the Supreme Court may also need to be authorised by the Court of Second Instance (directly or by means of a new application).
The Supreme Court decides only on legal issues and is therefore bound in its judgment by the facts previously established. It only decides on the accuracy of the judgment made on this basis or highlights invalidity and, to a limited extent, procedural errors in the previous proceedings. The Supreme Court not only performs an appellate function; it may also decide on the matter itself (to confirm or amend the judgment), repeal the previous decisions and instruct the Courts of First or Second Instance to retry the matter, or dismiss the action.
Labour-law cases, i.e. the civil disputes listed in Section 50 of the Austrian Labour and Social Courts Act [Arbeits- und Sozialgerichtsgesetz, ASGG] in connection with working conditions, are dealt with in a separate process corresponding to the civil process supplemented by special rules.
In labour-law cases the regional courts (in Vienna, the labour and social court [Arbeits- und Sozialgerichtshof]) are the Courts of First Instance, the Higher Regional Courts the Courts of Second Instance and the Supreme Court, the Court of Last Resort.
Panels of judges comprising in all instances one or more professional judges and one lay judge from the body of employers and employees decide on labour-law cases.
The appeal procedure comprising appeals on points of fact and law and appeals on points of law against judgments by the Courts of First and Second Instance corresponds to the civil process, although there are fewer restrictions on appeals. In cases of labour law, appeals on points of law to the Supreme Court are always permissible, irrespective of the maximum values, where a legal issue of considerable importance is concerned.
With a few exceptions, commercial cases, i.e. the civil disputes listed in Section 51 of the Austrian Jurisdiction Act [Jurisdiktionsnorm] involving a businessman, are dealt with in the civil process. However, in the case of commercial cases on which panels of judges decide, a lay judge from the commercial field participates in the Courts of First and Second Instance (but not in the Supreme Court).
All civil-law cases which have been assigned to this type of procedure on the basis of their special character (mostly settlement proceedings, custody proceedings or proceedings which do not typically involve two parties with opposing interests) are tried in non-contentious legal proceedings.
In the vast majority of cases, the local courts are the Courts of First Instance, the regional courts the Courts of Second Instance and the Supreme Court the Court of Last Resort.
In non-contentious legal proceedings, cases in the Court of First Instance are usually tried by a single judge or by a registrar (specially trained civil servant) and cases in the Courts of Second and Third Instance by panels of three or five professional judges.
The appeal procedure is comparable in nature to the civil process, although there are fewer restrictions on appeals because of the special nature of these procedures. To a limited extent, new submissions are also permissible in the Court of Second Instance over and above the frameworks defined by the motions and submissions defined in the Court of First Instance.
Given the diversity of the matters dealt with in these procedures, there are often various differing special provisions.Top
Last update: 05-11-2009