1. Do you have a class action or collective redress mechanism? If so, please describe the mechanism.
The Representative Actions Directive (directive (EU) 2020/1828) entered into force on 24 December 2020 and should have been transposed into national law by 25 December 2022; from 25 June 2023 the new rules must be applied. However, at present there is not even a draft for a law in Austria yet. However, we assume that the directive will be implemented within the next few months.
Currently there is only the possibility of a national representative action under the Consumer Protection Act (the CPA ). The associations authorized by the Consumer Protection Act (e.g. Chamber of Labour, Association for Consumer Information) can seek an injunction against provisions in standard contracts and terms of business which contravene a statutory prohibition or which are contrary to public policy.
There is also the so-called Austrian-style class action (the ACA ), which has been developed by case law. In such a case, consumers assign their claims to associations, which in turn assert the assigned claims bundled in their own name, but on behalf of the individual consumers.
2. Who may bring class action or collective redress proceeding? (e.g. quali ed entities, consumers etc)
As mentioned under point 1, these are associations authorised by law. These associations are listed in in Article 29 of the Consumer Protection Act.
The Austrian-style class action can be brought by an association if the claims of several persons are assigned to the association. There are no special requirements for the association, as this instrument is only a legal continuation of the objective accumulation of claims and not an independent instrument.
It is currently uncertain who will be allowed to bring class actions after the implementation of the directive.
3. Which courts deal with class actions or collective redress proceedings?
The question of jurisdiction basically depends on the subject matter of the action. However, since companies are usually the defendants, the courts of commercial jurisdiction (e.g. the Commercial Court of Vienna) are primarily dealing with these proceedings. However, currently there is no speci c or exclusive jurisdiction.
4. What types of conduct and causes of action can be relied upon as the basis for a class action or collective redress mechanism?
For an action by an association under the CPA, there must be a general interest and this must be asserted by an association authorised to do so. The main cause of action is the use of unlawful general terms and conditions; this is also the reason for which the representative action is generally provided for.
In ACA, it is basically only clari ed that comparable claims are assigned; according to this, both the subject matter and the procedure are governed by general principles, which is why no special criteria need to be present.
5. Are there any limitations of types of claims that may be brought on a collective basis?
For representative actions, the limitations are derived from the CPA, such as the cause of action and the person entitled to bring an action.
In an ACA the restrictions are governed by general civil law.
6. How frequently are class actions brought?
Actions by associations under section 29 of the CPA are regularly brought because they are intended to protect public interests and the general welfare of consumers.
The number of other ACAs is di cult to quantify because ACAs are not statistically recorded.
7. What are the top three emerging business risks that are the focus of class action or collective redress litigation?
What business risks the new class actions will entail will only be revealed based on the draft.
8. Is your jurisdiction an opt in or opt out jurisdiction?
As mentioned above, Austria has not yet implemented the representative actions directive; it is therefore not yet clear whether an opt in or opt out jurisdiction will be introduced.
In principle, neither of the two systems applies; the optin system is most likely to apply to the ACA, as the individual must actively assign his or her claims in order to be included in the outcome of the decision.
9. What is required (i.e. procedural formalities) in order to start a class action or collective redress claim?
In principle, there are no special procedural requirements. In the case of ACA, the same court as well as the same type of proceedings must in principle be competent for all (assigned) claims.
10. What remedies are available to claimants in class action or collective redress proceedings?
Due to the restrictive design of collective redress, individual plainti s are usually not entitled to legal remedies. If the claims are assigned in the sense of the ACA, the association conducts the proceedings; in the case of the CAP class action, only the legitimised association and not individual consumers are parties.
11. Are punitive or exemplary damages available for class actions or collective redress proceedings?
Such punitive damages or special damages do not exist in Austrian collective redress. Are class actions or collective redress proceedings subject to juries? If so, what is the role of juries?
The types of collective redress in Austria are exclusively subject to civil jurisdiction and are not tried before juries.
12. Are class actions or collective redress proceedings subject to juries? If so, what is the role of juries?
No.
13. What is the measure of damages for class actions or collective redress proceedings?
Since there is no such own damage compensation (s. q 11), there is also no own calculation approach for it.
14. Are there any jurisdictional obstacles to class actions or collective redress proceedings?
For association actions under the CPA, the requirements of the CPA-procedure must be ful lled; for the ACA the same trial court must be competent and the same type of proceedings have to be applied for the assigned claims.
15. Are there any limits on the nationality or domicile of claimants in class actions or collective redress proceedings?
Currently, only Austrian associations are entitled to bring an action by association under the CPA. The ACA, as a legal continuation, is governed by general civil law, which is why, in principle, non-Austrian citizens can also assign their claims, provided that the requirements are met.
16. Do any international laws (e.g. EU Representative Actions Directive) impact the conduct of class actions or collective
redress proceedings? If so, how?
The EU Directive on representative actions has not yet been implemented in Austria, which is why its impact on the Austrian legal system cannot yet be determined.
17. Is there any mechanism for the collective settlement of class actions or collective redress proceedings?
In the absence of comprehensive procedural law for collective redress, there is also no speci c mechanism for dispute resolution; this is governed by general procedural law.
18. Is there any judicial oversight for settlements of class actions or collective redress mechanisms?
There is no such or comparable mechanism in Austria.
19. How do class actions or collective redress proceedings typically interact with regulatory enforcement ndings? e.g. competition or nancial regulators?
missing question
20. Are class actions or collective redress proceedings being brought for ESG matters? If so, how are those claims being framed?
Currently, there is no possibility to apply class action to ESG issues, but this could change in the near future with the implementation of the representative actions
directive and the supply chain directive.
21. Is litigation funding for class actions or collective redress proceedings permitted?
In principle, litigation funding is permitted in Austria; there are no legal regulations that would prohibit it for collective legal protection.
22. Are contingency fee arrangements permissible for the funding of class actions or collective redress proceedings?
Agreements on success ( quota-litis agreements ) are prohibited in Austria under the General Civil Code; these are therefore also not permissible in collective redress instruments.
23. Can a court make an adverse costs order against the unsuccessful party in class actions or collective redress proceedings?
Such a set of instruments is not provided for in Austrian collective redress.
24. Are there any proposals for the reform of class actions or collective redress proceedings? If so, what are those proposals?
The entire system of collective redress will be revolutionised and adapted through the implementation of the Representative Actions Directive. However, it remains to be seen what the exact implementation in Austria will look like; the topic leaves plenty room for discussions.
