Austria
Answer ... It is a fundamental principle of Austrian law that civil proceedings must be public. Exceptions and limitations exist, however. While it is therefore permitted for the general public to attend hearings, filming, live streaming and taking photographs during a hearing are not permitted.
Furthermore, the judge may – and in some cases must – exclude the public. For example, the court must exclude the public if it is suspected that there will be disruptions to the proceedings.
Any party may also request the exclusion of the public from (parts of) the hearing if, for example, business secrets are discussed.
The exclusion of the public and thus the restriction of a fundamental procedural principle cannot be taken lightly, so the unjustified exclusion of the public is grounds for annulment of a judgment.
Austria
Answer ... Procedural law requires the court to discuss the factual and legal questions it regards as relevant in the case with the parties at the first hearing. This primarily ensures that the court does not render a surprising decision without the parties having had the opportunity to argue their case. The court will usually set a schedule for the proceedings laying out which issues will be discussed and addressed first, as well as which evidence will be taken in what order.
As proceedings should be conducted in a cost and time-efficient manner, the court will address preliminary issues first. This will usually include any objections raised by the defendant, such as objections regarding:
- the court’s jurisdiction;
- the validity of an assignment of the claims; or
- the claims being time barred.
Addressing preliminary issues first is not specific to class actions.
So-called ‘test cases’ are not determined by the court. An association (or special purpose vehicle) that has been assigned multiple claims will have to determine test cases which will be filed with the court(s) and which should be representative for the other assigned claims.
One benefit for test cases being filed with the courts is that the court fees are determined based on the amount in dispute. For large classes, the court fees may require a significant upfront investment from the claimant (often financed through a third-party funder). While judgments rendered in test cases are not binding on other members of the class, such decisions allow the claimant to collect valuable information to better assess the prospects of success for the claims of the rest of the class.
One point of caution for such test cases is the thresholds for appeals. If the amount in dispute does not exceed €5,000, there is no possibility to appeal to the Supreme Court against decisions of the court of second instance.
Austria
Answer ... Austrian-style class actions are subject to the same procedural steps as any civil lawsuit in Austria.
Proceedings are initiated by filing a statement of claim. The court will then perform a cursory assessment of its jurisdiction and, if deemed competent to hear the dispute, will serve the statement of claim on the defendant. In proceedings before the regional courts, the defendant will simultaneously be ordered to file its statement of defence within four weeks.
The court then schedules a preparatory hearing. The first hearing follows the same steps and involves:
- dealing with any objections (eg, regarding the court’s jurisdiction, the validity of assignments, time limitations);
- the recital of the parties’ submissions (usually by way of referring to the written submissions);
- a mandatory attempt at settlement; and
- preparation of the further programme of the proceedings, which in a non-binding way outlines how the proceedings will be conducted (eg, when specific matters will be discussed or when certain evidence will be taken).
From this point onwards, proceedings will vary; but they will usually involve various hearings and the taking of witness and documentary evidence, as well as expert evidence. Once the court is satisfied that it has sufficiently examined the matter and is ready to render its decision, it will close the proceedings.
Austria
Answer ... No specific data is available in relation to the duration of Austrian-style class actions. Reference may be made to the median duration of civil proceedings available for 2016: district court proceedings had a median duration of six months (ie, 50% of approximately 45,300 cases were decided in less than six months). At the regional courts, the median duration was 13 months. Only 2.3% of all contentious civil proceedings had a duration of more than three years.
As Austrian-style class actions deal with a multitude of claims and often complex issues, there is a tendency for such proceedings to go beyond the usual duration of civil proceedings.
Austria
Answer ... Judgments of the Austrian courts are generally binding only between the parties to the proceedings and thus do not have a direct legal effect on the other members of the class. However, the same court will generally not render a different ruling if the claim is based on the same (or similar) facts. Also, judgments of higher courts may set some kind of precedent for similar cases (although they are only legally binding between the parties to the proceedings).