Class Actions Comparative Guide

• Law Firm: Pitkowitz Foerster Rechtsanw'lte GmbH
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Author: Mr Nikolaus Pitkowitz and Roxanne De Jesus
• Published date: 02 May 2023

1 Legal framework

1.1 Is there a dedicated class action regime in your jurisdiction? If not, how is collective action typically brought?

Austria does not have a codified regime for US-style class actions or group actions. There are only very specific mechanisms for authorised associations to initiate proceedings in the interests of consumers (eg, to challenge general terms and conditions in contracts with consumers).

In the early 2000s, a mechanism to bring collective actions was developed in Austrian case law that has since become known as the 'Austrian-style class action'. There has been a noticeable increase in such actions in recent years.

The Austrian-style class action is based on Section 227 of the Code on Civil Procedure, which allows multiple claims to be jointly brought between the same parties before the same court in a single lawsuit. To use this instrument for class action-style proceedings, multiple persons assign their claim to a single (legal or natural) person, which then brings the claims in its own name jointly against the defendant.

Based on Austrian case law, the assigned claims for Austrian-style class actions must share:

• the same jurisdiction;
• the same type of proceedings;
• the same cause of action; and
• essentially the same actual and legal issues.

In practice, claims are often assigned to an association that acts as claimant. Usually, the costs of Austrian-style class actions are advanced by a third-party funder that will receive a share of the proceeds in case of success.

1.2 Do any special regimes apply in specific sectors?

The Act on Consumer Protection allows specific institutions to seek an injunction against companies making use of unlawful and immoral provisions in terms and conditions. The applicable provisions contain a list of specific types of contracts or matters that fall under the scope of such injunction proceedings; they include, for example, package tours, consumer credit and claims for phone charges.

1.3 Are the courts in your jurisdiction generally considered sympathetic to class actions?

Austrian law does not assign jurisdiction for class actions to specialised courts; the 'general' civil courts will deal with Austrian-style class actions. Cases are assigned to judges based on different predetermined mechanisms, so as to not allow for any undue influence in the allocation of cases. Due to this distribution of Austrian-style class actions to different courts and judges, it is difficult to give a general assessment of their attitude towards such proceedings. Therefore, even in similar cases, courts may take different approaches and render different decisions.

2 Parties

2.1 Who has standing to bring a class action in your jurisdiction?

The Austrian-style class action is, in principle, open to any natural or legal person to which claims are assigned.

In practice, the person bringing the claim is usually a legal person in the form of an association that is founded to pursue consumer interests.

2.2 Can representative bodies bring class actions in your jurisdiction? If so, which bodies may do so and what is the applicable procedure?

The Act on Consumer Protection lists a handful of institutions that have standing to seek an injunction in particular regarding the use of unlawful and immoral terms and conditions (Section 29). They include the likes of:

• the Federal Chamber of Commerce;
• the Federal Chamber of Labour; and
• the Association for Consumer Information.

The named institutions benefit from certain procedural benefits as they are deemed to serve public interests. For example, an appeal to the Austrian Supreme Court is usually admissible only if the amount in dispute exceeds '5,000 - a restriction that does not apply in such cases.

Similarly, the Act on Unfair Competition allows specific institutions - some also named in the Act on Consumer Protection - to seek an injunction in case of prohibited business practices.

2.3 Can parties outside the jurisdiction be members of a class action? What requirements and restrictions apply in this regard?

The jurisdiction of the Austrian courts is not limited to parties that reside in Austria. The underlying claim must, however, be subject to the jurisdiction of the courts, which requires a connection to Austria. This may be the case if the defendant is a company registered or seated in Austria or where damages were suffered in Austria.

2.4 Which parties may be the target of a class action? Can parties outside the jurisdiction be the target of a class action? What requirements and restrictions apply in this regard?

In accordance with the requirements of the Austrian-style class action, the target of such a lawsuit may be any person faced with multiple claims of similar nature based on similar facts and concerning similar questions of fact and/or law.

In practice, the targets are large corporations that regularly conclude (similar) contracts with numerous persons (eg, purchase contracts, investment contracts).

The jurisdiction of the Austrian courts is not dependent on the defendant being registered or seated in Austria. The advanced claims must, however, have a connection to Austria to establish the jurisdiction of the Austrian courts.

In the case of damage claims, it is therefore possible, for example, to target a defendant outside of Austria if the damage occurred in Austria.

2.5 Do class actions proceed on an opt-in or opt-out basis?

Austrian-style class actions are based on assignments of claims, which can thus be compared to an opt‑in approach. Therefore, any rulings on such claims will not be binding on persons that have not assigned their claims.

3 Forum

3.1 In what forum(s) are class actions heard in your jurisdiction?

There are no courts specialised in Austrian-style class actions and therefore these claims are subject to the jurisdiction of the general civil courts. Depending on the amount in dispute, the courts of first instance are either:

• the district courts, for claims of up to '15,000; or
• the regional courts, for claims exceeding '15,000.

The amount in dispute is determined for each individual claim and not calculated as the sum of all claims accumulated in one class action. Nevertheless, claims that do not reach the threshold can jointly be brought with claims that do exceed the threshold at the court competent for the higher amount in dispute.

3.2 Who hears class actions in your jurisdiction (eg, judges or juries)?

First-instance civil cases in Austria are always heard by judges. In first-instance proceedings, the case will generally be heard by a single judge. Depending on the amount in dispute, this will be a judge at:

• a district court (where the amount in dispute is up to '15,000); or
• a regional court (where the amount in dispute exceeds '15,000).

Austrian law does not provide for juries in civil proceedings.

3.3 Is there any opportunity for class action forum shopping in your jurisdiction? If so, what are the implications?

The jurisdiction of the courts is generally determined by the underlying claim.

While consumers usually have the benefit of filing a claim with the court that is competent at their place of residence, this forum is not available if the claim is assigned.

4 Bringing a class action

4.1 What is the limitation period for bringing a class action in your jurisdiction? What requirements and restrictions apply in this regard?

There are no separate provisions regarding the time limits for bringing class actions in Austria. The general statute of limitations applicable to the underlying...