CODE OF CIVIL PROCEDURE IN AUSTRIA
This article will provide guidance on the Code of Civil Procedure in Austria. The expenses associated with civil procedures in Austria are governed by the ZPO or the Austrian Code of Civil Procedure. Generally, the parties to a dispute are responsible for covering their legal fees, and the successful party is entitled to an award of costs after the case is concluded.
It may be difficult for the victorious party to collect on an award of costs from a non-Austrian party if that party does not have any assets in Austria that may be seized to satisfy the award. Therefore, the victorious party would have to seek foreign enforcement of an Austrian court's ruling, which might provide its challenges.
The Act on the Judicial Procedure in Civil Disputes (ZPO) and the Act on the Exercise of Jurisdiction and Competence of the Ordinary Courts in Civil Cases are the primary sources of civil procedural law in dispute. They lay forth the fundamental guidelines that must be followed by both the party bringing a lawsuit and the court. The Act on the Exercise of Jurisdiction and Competence of the Ordinary Courts in Civil Cases will supply the requirements for the response if the individual is eager to submit a claim and wants to know which court will be considering their complaint. The ZPO will guide if further details regarding the next course of action are required.
To launch a typical Austrian civil case, a statement of claim must be filed with the court; this signals the start of ongoing procedures. Beyond that, it identifies the disputing parties and the issue. The court considers the procedural requirements based on the claim before informing the opposing party. After the claim has been considered and the court determines that the action is conclusive and all other conditions have been met, oral hearings are set immediately. District court proceedings go under this. The responsible judge directs the respondent to answer to the complaint within four weeks if the action is presented to regional courts before oral hearings. The four-week deadline for the declaration of defense is debated in the literature as to whether it may be extended or a non-extendable emergency deadline.
Unless statutory law specifies otherwise, the statute of limitations is thirty years and begins when the claim originates and becomes due. Although individual statutes of limitations have preferences, this is only a catch-all supplementary clause. For example, damages, inheritance, and rental fee claims are exceptions. Damage claims expire three years after the parties eligible to file them become aware of the harm and the responsible party. In addition, the standard thirty-day window is applicable. Short, subjective, and long, objective terms are often combined.
Additionally, certain activities have a shorter time restriction. For instance, a possession interference action must be filed within thirty days after becoming aware of the interferer and the interference for it to fulfill its peacekeeping purpose.
SPECIFICS OF A CLAIM IN AUSTRIA
Interim injunctions may be requested before or during a dispute but only implemented upon request. The claim just has to be certified to impose an injunction. This indicates that no proof—or at least a high degree of certainty—is needed since proof of entitlement suffices. The trial court grants the order if the security application is made during the process or in conjunction with a lawsuit. It is up to the district courts to determine whether the claim should be safeguarded before litigation and if it is acceptable.
These actions, which have a similar form but a distinct goal setting from procedures for preserving evidence, must be clearly defined. Both may be considered backup measures, but the perpetuation of evidence acts as a preventative strategy by recording the present level of proof, while the interim injunction's goal is to maintain the enforcement of a claim. If doing so does not violate EU or international law, Austrian courts may mandate the preservation of evidence that would otherwise need to be collected abroad. This also holds if a future legal issue is brought before a court with authority over international matters.
REPRESENTATION IN COURT
If the sum in controversy is merely up to five thousand euros, a litigant in Austrian court proceedings is permitted to represent themselves in proceedings of first instance before the district courts. The use of any other person's representation is also allowed. In certain district court proceedings, the litigant is not required to retain counsel, but if they do, that counsel must be an attorney at law. All cases must be successfully prosecuted with the assistance of an attorney before the district courts and appellate courts.
Legal entities, whether created under public or private law, are entitled to rights and are subject to responsibilities of any type in their names. In terms of their legal capacity, they are, in theory, on par with natural people unless the law in issue calls for a natural person. Legal people must act via organ representatives, which a natural person must carry out since they cannot authorize or commit themselves directly. They are subject to the same restrictions as those listed above. Representatives of companies are only permitted to represent their entities in court if an attorney is not required or, in cases where one is, the representative is an attorney by profession.
JURISDICTION IN AUSTRIA
The Austrian Service Act mainly applies to serving official documents in legal and administrative processes. It claims that international conventions are mostly controlling when it comes to servicing overseas. The legislation of the European Community applies to all EU Member States. Existing bilateral and multilateral treaties will only continue to apply to services provided in foreign countries.
Additionally, each Member State must select suitable transmitting and receiving agencies for service. Documents should normally be served in the language of the state to which they are sent; otherwise, the addressee may reject them. The terms and outcomes of service performed abroad must be evaluated per the procedural legislation relevant to the state of service. In addition to service provided by transmitting and receiving agencies, effective service may also be provided through postal services. The court will decide how to serve documents in a specific instance.
Austrian courts may also compel parties and representatives who lack a national delivery location to appoint an authorized representative for service outside the purview of EU legislation. These laws apply equally to both natural and legal persons, even if this may not be the case under the domestic law of the receiving state.
ENFORCEMENT OF FOREIGN JUDGEMENTS IN AUSTRIA
The Execution Order outlines the major procedural requirements (EO). It was revised in 2017 and recently underwent a fundamental change. It now has a separate section titled "international enforcement law" that specifies that acts and documents created outside of Austria require a declaration of enforceability to be used unless they are recognized as enforceable by an international agreement or acts of the European Union.
The main goal of the legislative initiatives at the European level is to guarantee the free movement and enforceability of court judgments made by Member States within the European Union. Regulation (EU) No. 1215/2012 on recognizing and enforcing decisions in civil and commercial issues has been reformed, which is mostly to blame for these developments.
The controlling principles are outlined in the Execution Order if a declaration of enforceability is preconditioned in the absence of bilateral or multilateral international agreements. An application for such a declaration and one for authorizing execution may be submitted together. Both are subject to the local district court's jurisdiction, which decides both petitions concurrently. The overseas execution order will be handled like a domestic one after a declaration of enforceability has become final. Such a law, meanwhile, is never more successful than it is in the state where it was first implemented.
The Hague Convention on Civil Procedure of 1954, ratified or customary international law, which adheres to the principle of reciprocity, is the major source of information on international judicial aid to non-member states of the European Union. A request for foreign legal aid may be sent via diplomatic or consular channels and directly between judicial authorities.
SERVICE OF PAPERS IN AUSTRIA
Service is a legal action automatically carried out after being directed by the court during legal proceedings (Zivilprozessordnung - ZPO). Service must be formally recorded so that the day and person(s) served may be confirmed. If there is evidence that the papers have been properly served, certain procedural consequences may only be applied. As a general rule, all court orders (such as summonses, rulings, and judgments) and all requests from parties (such as claims, defenses, and appeals) must be served officially by the opposing party.
The decision-making body directs the way of service and the delivery of papers (judge, judicial officer). The decision-making authority must issue this directive, known as a service decree (Zustellverfügung), on the original copy of the document to be served. A delivery service handles the actual service procedure itself. To obtain registration information regarding the primary residence registered for a natural person, anyone—including a foreign authority—may contact the Austrian registration authorities (municipal office, municipal authorities, municipal district office). The central registry contains the registration data (Zentrales Melderegister – ZMR). The names of all people registered in Austria are included here, together with information on their primary address and, if relevant, their secondary residence. It is required to register or deregister as a resident in Austria.
SERVICE METHODS IN AUSTRIA
Generally, a delivery service, such as the postal service or another universal service provider, or court personnel conduct service.
The court must appoint an administrator if service can only be completed by the public announcement (inclusion in the edict file), and the person involved would normally need to take legal action to protect their rights in light of the document to be served on them, especially if the document contains a summons for this or those person(s). The edict file must include an announcement of the administrator's appointment. Service is judged to have been completed when this occurs, and the document is then delivered to the administrator.
The courts may serve papers electronically as well. The technology used for this is the Elektronischer Rechtsverkehr or ERV. Personal service is the process where the papers must be delivered in person to someone being served if the law prohibits the server from serving them to a different recipient. This only applies in unusual circumstances.
Other than that, alternative service is acceptable. Suppose the addressee cannot be located at the delivery location. In that case, the documents may, in theory, be delivered to any adult residing at the same address as the addressee or to any employee or employer of the addressee willing to accept them. This individual is the replacement receiver (Ersatzempfänger) under the law.
However, the server may only provide substituted service if the server has good cause to anticipate that the addressee will be there to accept the delivery regularly. A person who is a party to the legal dispute as the addressee's adversary is not permitted to serve as a replacement receiver. Additionally, substituted service is not considered completed if the addressee was not present at the delivery place and so could not learn about the served documents promptly.
The document must be deposited where service is handled by a delivery service, at its relevant business premises, and in all other situations, at the relevant town hall or authority, if located in the same municipality, if neither the addressee nor a substitute can be found at the delivery location and the server has reason to believe that the addressee is regularly present there.
The document must be left at the delivery place or, if this is not practicable, deposited without written notice if the addressee or a substitute receiver living in the same home refuses to accept it without a good legal justification. Service is completed when the document is left or deposited.
FOREIGN SERVICE OF PAPERS THROUGH THE POST
The Universal Postal Union Convention and an international acknowledgment of receipt must be followed while providing postal services. The document must be given to the addressee or, if that person cannot be served with it, to another person authorized by local law to receive it (e.g., authorized recipient, substitute recipient).
The question of whether it is legal to deposit the document and, if so, with what provisions of the Universal Postal Union Convention do not cover restrictions. Therefore, the national laws of the nation where the text is being presented serve as the foundation for these issues. The document may be deposited in accordance with the applicable rules of Austrian law, provided that the prerequisites are met.
The delivery agent must attest on the evidence of delivery that the document has been served (confirmation of delivery, acknowledgment of receipt). If the person accepting delivery of the document is not the real addressee, they must indicate their connection to the latter and sign the proof of delivery to affirm service. If the recipient declines to acknowledge receipt, the delivery agent must indicate this refusal on the proof of delivery along with the date and, if relevant, a description of the recipient's relationship to the addressee. The evidence of delivery must be promptly sent back to the sender.
Documents can be faxed at (800) - 296-0115, emailed to firstname.lastname@example.org, mailed to 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.
Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; Our receptionist receives all documents.
DOMESTIC COVERAGE AREAS:
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INTERNATIONAL COVERAGE AREAS:
Albania | Andorra | Anguilla | Antigua | Argentina | Armenia | Australia | Austria | Azerbaijan | Bahamas | Barbados| Belarus | Belgium | Belize | Bermuda | Bosnia and Herzegovina | Botswana | Brazil | British Honduras | British Virgin Islands | Bulgaria | Canada | Cayman Islands | Central and Southern Line Islands | Chile |China (Macao)| China People's Republic | Colombia | Costa Rica | Country of Georgia | Croatia | Cyprus | Czech Republic | Denmark | Dominican Republic | Ecuador | Egypt | Estonia | Falkland Islands and Dependences | Fiji | Finland | France | Germany | Gibraltar | Gilbert and Ellice Islands | Greece | Guernsey | Hong Kong | Hungary | Iceland | India| Ireland| Isle of Man | Israel | Italy | Jamaica | Japan | Jersey Channel Islands | Jordan | Kazakhstan | Korea | Kuwait| Latvia| Lithuania | Luxembourg| Malawi | Malaysia | Malta | Mauritius | Mexico | Monaco | Montenegro | Montserrat | Morocco | Namibia | Netherlands | New Zealand |Nicaragua | Norway | Pakistan | Panama | Paraguay| Peru | Philippines | Pitcairn |Poland| Portugal | Republic of Moldova | Republic of North Macedonia | Romania|Russian Federation | Saint Vincent and the Grenadines | San Marino | Saudi Arabia | Serbia | Seychelles | Singapore| Slovakia| Slovenia | South Africa | Spain | Sri Lanka | St. Helena and Dependencies | St. Lucia | Sweden | Switzerland | Taiwan | Thailand | Tunisia | Turkey | Turks and Caicos Islands | Ukraine | United Kingdom of Great Britain and Northern Ireland | Uruguay | US Virgin Islands | Uzbekistan | Venezuela | Vietnam
New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 - 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 - 1101 Pennsylvania Avenue, Suite 300, Washington DC 20004
FOR ASSISTANCE SERVING LEGAL PAPERS IN AUSTRIA
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1. Zivilprozessordnung (ZPO) is the Austrian code of civil procedure. It was drafted in 1895 by Franz Klein and superseded the Josephinian Common Court Regulations (Allgemeine Gerichtsordnung (AGO)) of 1781
2. Act JN:
3. The Vienna upper regional Court has now confirmed the potential for an extension upon request.
4. Due to ECHR case law, preliminary court hearings are often two-sided and in accordance with Article 6 of the ECHR (right to be heard); only in urgent situations may a restraining order be given without the opposing party being heard.
5. In contrast, lawyers licensed to the Austrian Bar can advocate for themselves in any procedure and before any court, but foreign attorneys are not permitted to rely on this exemption. Parties must be represented by an Austrian attorney when lawyer involvement is required.
6. The Service Regulation provides for the service of judicial and extrajudicial documents in civil or commercial disputes within EU Member States.
7. The most recent changes, which took effect in 2021, mostly concern domestic execution practices. The newly modified international enforcement statute did not undergo any significant content changes.
8. In the European Union, Regulations (EC) No. 1206/2001 (taking of evidence) and (EC) No. 1393/2007 (judicial aid) regulate the practice in its entirety (service of documents).
9. According to Section 87 of the Austrian Code of Civil Procedure.
10 . In most cases, this will be the postal service, however under Section 2(7) of the Austrian Service of Documents Act (Zustellgesetz - ZustG) and Section 3(4) of the Austrian Postal Market Act (Postmarktgesetz), it may also be another universal service provider.
11. Gemeindeamt, Magistrat, Magistratisches Bezirksamt)
12. A written registration inquiry must be submitted for a charge of €14.30. Any oral or digital inquiry made using a Citizen Card is free. A federal administrative fee of €3.30 will also be due.
13. Section 88 of the Austrian Code of Civil Procedure).
14. Sections 116–118 of the Austrian Code of Civil Procedure (service via an administrator appointed by the court)
15. Lawyers and defense counsel, notaries, credit and financial institutions, Austrian insurance companies, social insurance providers, pension institutions, the Construction Workers Leave and Severance Pay Fund (Bauarbeiter-Urlaubs- und Abfertigungskasse), the Pharmaceutical Salary Fund (Pharmazeutische Gehaltskasse), the Bankruptcy Contingency Fund (Insolvenz-Entgelt-Fonds), and IEF-Service GmbH, the system administrator, are the only parties required other individuals do not have to participate in this system. However, they are welcome to do so.
16. According to Section 16(2) of the Austrian Service of Documents Act.
17. Section 16(5) of the Austrian Service of Papers Act
18. If the authority hasn't prohibited this by attaching a letter to the proof of delivery, it can transmit an electronic copy of the proof of delivery or its content instead of the physical proof of delivery. If the authority demands it, the original proof of delivery must be given right away and stored for at least five years after the electronic copy is delivered