Litigation in Austria – things to consider before going to court

Although Austria is a small jurisdiction of about 8.8 million inhabitants, it has one of the most elaborate court systems in the EU and some of the highest standards of ethics in its legal system.

According to a 2018 report, there were more than 6,000 lawyers in Austria, and litigation is part of their day-to-day activities. However, like every jurisdiction, Austria has specific laws and procedures that set it apart from other countries and that both individuals and companies should be aware of before taking legal action. Whether you have just moved to Austria or you run a business here, here are some top considerations you should know about Litigation Austria.

When possible, conflicts should be settled out of court - Litigation & Court Proceedings in Austria

In Austria, the claimant must advance court fees, as per the Austrian Court Fees Act, or Gerichtsgebührengesetz (Litigation Austria). The total value of the fees depends on several factors, such as the value of the dispute and the number of parties involved. As a result, the fees can get quite high and filing a claim can be a lengthy, complicated process. For example, when one of the parties is not from Austria, the litigation case can be significantly delayed. While going to court is always a valid option, litigation experts in Austria recommend avoiding legal disputes whenever possible and attempting to settle the matter outside court.

A professional lawyer can inform you of the correct arbitration proceedings and help you find a solution that works in your favor. By having a transparent approach from the beginning, you can minimize conflict potential and avoid controversies.

What if you want to go forward with damage compensation? - Litigation Austria

Although solving matters out of court is more straightforward for both parties, it isn’t always possible to avoid Litigation in Austria. For example, if you have sustained physical injuries or property damages, you may be entitled to substantial compensation demands, which fall under the Austrian Damage Compensation Law. Around half of the cases that go to court are connected to damage compensation in some way, so this is one of the most active areas of the Austrian judicial system.

In Austria, damage compensation cases can be solved either by civil or criminal courts, depending on whether the defendant committed a crime when causing the damage.

In order to be eligible for compensation, the claimant must meet these four requirements laid out in the Austrian Civil Code:

• There must be damages or another incurred loss. The plaintiff must prove that the defendant’s unlawful actions or negligence led to physical injury, property damage, or mental anguish.
• The damage must have been caused by another party’s behavior (causation). In other words, the damage should not be coincidental.
• The defendant committed an illegal act. The behavior that caused the damage violated an existing law or regulation.
• The defendant must be culpable for their behavior. Factors such as their age or whether they acted out of negligence should also be considered.

If these four requirements have been met, a team of legal experts can commence the legal damage compensation process. In such cases, it’s important not to take matters into your own hands and instead let professionals represent you. Discussing your expectations in advance with a lawyer is important because they can:

• Check the legal grounds for legal compensation claims and estimate the costs needed to commence legal proceedings
• Negotiate damage compensation settlements out of court on your behalf
• Should out-of-court proceedings not be enough, they will assist you in seeking damage compensation by taking your case to court
• Defend you against unsubstantiated allegations aimed at preventing you from getting compensation
• Represent you in court and pursue your best interests

In Austria, most damage compensation claims fall under the umbrella of civil law because they are based on harmful behaviors such as personal injury. However, in some cases, additional criminal laws can be applied.

As a result, if the behavior that caused the damage or injury is sanctioned by criminal law, the defendant can be prosecuted under civil law, but a criminal complaint can also be filed. In this case, the victim can take part in criminal proceedings as a witness and thus have access to case-related court files. Still, even in these cases, out-of-court settlements remain an option and are, in fact, often preferred, because a part of the compensation is given in criminal proceedings.

The definition of “damages” in Austrian law - Litigation & Court Proceedings in Austria

According to the Allgemeine Bürgerliche Gesetzbuch (ABGB), damages are defined as disadvantages caused to someone’s assets, rights or person. When establishing the amount of damages that a person has sustained, the “difference theory” is applied. Namely, what is the difference between the assets that the person has after sustaining the damages and the assets that the person would have if the damages haven’t been sustained.

It’s also worth pointing out that the damages may have been caused, by multiple perpetrators, knowingly or unknowingly. When that happens, each party can be held liable depending on how much they contributed to the damage.

How is damage compensation calculated? - Litigation Austria

When calculating the amount that a person should receive after sustaining damages, multiple factors are taken into account:

How long did the condition caused by the damages last? If the damage affected the victim’s life for an extended period, then it is the duty of the guilty party to provide natural restitution and reduce potential damages. If the damages affected the victim just for a brief period and had no lasting repercussion on their life, then the compensation will be lower.

• Contract vs. tort liability. In a contract, the rights and obligations are established and agreed upon by both parties under the contractual agreement. In tort, the rights and obligations are created by the courts applying common law.
• Pecuniary damages vs. intangible damages. Pecuniary damages have a monetary value, while intangible damages are hard to quantify in money. 
• Positive damages vs. lost profits. Positive damages refer to the loss of a tangible asset. Lost profits aren’t a destroyed asset per se, but by causing the damage, the defendant prevented the victim from generating certain earnings.
• Damages caused by negligent acts vs. damages caused by premeditated acts. If the act was premeditated, the victim is entitled to full compensation, including lost profits.
• Damages minor negligence vs. gross neglect. If the damages were caused by gross negligence, the victim is entitled to full compensation, including lost profits.

Most of the time, calculating the exact amount needed for damage compensation can be a long and complex process, which is why so many cases are delayed. Legal experts recommend those who have sustained damages to contact a lawyer as soon as possible and discuss compensation options early on. The more time passes after the damage has been sustained, the harder it will be to gather all the necessary evidence, so time is essential. In general, personal injury cases are the most complex.

When establishing the compensation that the victim is entitled to, these components play an important role:

• Medical expenses needed for hospitalization and recovery. Thus, people that have sustained a personal injury as a result of someone else’s actions or negligence are entitled to financial compensation for medical bills, both during and after hospitalization. In these cases, it’s essential for the victim to keep a record of these medical bills in order to prove their claim.
• Lost wages. If the damage prevented the victim from going to work, earning potential wages or generating profits, then they are entitled to compensation.
• The pain and suffering caused by the damage. These are important components, but the fact that they are hard to quantify and associate with a monetary value. A certain amount is usually established during the settlement, depending on the severity and extent of the damage. If the case does go to court, the Austrian Pain and Suffering Compensation Tables (Schmerzensgeldtabellen) are used for reference, to ensure that everyone is treated fairly and there aren’t discrepancies between compensation amounts for similar cases. An important note that international plaintiffs should keep in mind is that the compensation amounts for pain and suffering are usually quite small compared to the impairments caused by the damage. Moreover, unlike the United States, for instance, where victims can receive large amounts for the pain and suffering caused by damages, in Austria the compensation is considerably smaller.

Austrian law stipulates that all parties must provide proof to support their case during the litigation in Austria. Case law also applies prima facie (first appearances). In other words, events followed a typical course. Both parties can rebut first appearances and provide evidence to show that the course of events was atypical.

When a case goes to court, it may arise that both parties (the victim and the defendant) can be held culpable, such as in the case of traffic accidents, for instance. When that happens, the Austrian Civil Code states that the parties involved split the damage compensation amounts. When it cannot be determined how culpability is shared, the perpetrator must pay the victim for at least half the damages incurred.