Availability of civil claims
Scope for civil claims in Austria
Stand-alone and follow-on civil actions are available in Austria.
Any natural or legal person that is affected by an infringement of Articles 101/102 TFEU or Sections 1-5 of the Austrian Cartel Act (“Cartel Act”, Kartellgesetz) may bring an action for damages pursuant to Austrian law on damages, which is set forth in Section 1295 et seq. of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch – “ABGB”) and specified in Section 37a of the Cartel Act. Austrian law provides that anyone who intentionally or negligently causes damage to another person shall be liable to compensate for the loss suffered.
Applicable limitation periods
The general limitation period for damage claims is three years from the moment a potential claimant has sufficient information to bring a claim, i.e., knowledge of the damage and the identity of the infringing party (Section 1489 ABGB). The absolute limitation period for damage claims is 30 years (Section 1478 ABGB).
It is on the defendant to prove that the claimant actually had sufficient information/knowledge more than three years before filing the claim, which is generally not an easy task. In a follow-on case regarding elevators and escalators, the defendants argued that many dozens of newspaper reports about a (confidential) infringement decision by the Cartel Court (the decision making authority in public enforcement cases) from 2007 provided the claimant with sufficient information and hence triggered the limitation period.
The defendants further pointed out to a 2007 announcement of representatives of the claimant, which included details of the damage lawsuit it filed more than three years later. In this case – as in a few others – the Austrian Supreme Court (Oberster Gerichtshof, “Supreme Court”), however, decided that in follow-on proceedings it will usually be the publication of the final infringement decision which triggers the running of the limitation period. That the commencement of the limitation period is not in every case linked to a previous finding of a violation by the competition authorities was established in another case. There, the action was held to be time barred because it was filed more than three years after the defendant should have been aware of the violation of the competition rules. In this case, the claimant was itself party to the agreement, which later was found to be in violation of Articles 101/102 TFEU.
The newly adopted Section 37a of the Cartel Act sets forth that the running of the limitation period shall be suspended while a corresponding public enforcement procedure on the EU or national level is pending. The suspensory effect of such a proceeding only ends six months after the decision of the competition authority becomes final. This provision only applies to competition law infringements, which took place after 28 February 2013.
Appeals
The competence to hear actions for damages lies with the Austrian civil courts. The amount claimed and the legal nature of the defendant will dictate which court has jurisdiction. A district court (Bezirksgericht) is competent to hear claims of an amount up to EUR15,000. Claims exceeding an amount of EUR15,000 are heard by a regional court (Landesgericht).
Competition law issues are usually litigated before specialized chambers of ordinary civil courts, the commercial courts (Handelsgericht). Commercial courts are competent if: (i) the action is brought against a defendant that qualifies as an “entrepreneur” (Unternehmer) under the Austrian Commercial Code (Unternehmensgesetzbuch – “UGB”); and (ii) the damage arose within a contractual commercial relationship.1 The City of Vienna has a separate district court for commercial matters (Bezirksgericht für Handelssachen Wien, with the status of a district court) and a commercial court (Handelsgericht Wien, with the status of a regional court).
Decisions of district courts can be appealed to the competent regional court.2 Decisions of regional courts can be appealed to the competent court of appeal (Oberlandesgericht).
The appeal court may decide the merits of the case and confirm, revise or overturn the first instance judgment. However, the scope of appeal is confined to the motions and submissions made in the regional court. The appeal court may repeat or extend all or some of the proceedings, overturn the decision of the regional court and instruct the same to retry the matter, or reject the appeal.
Judgments of an appeal court may be challenged only on points of law. Such an appeal must be made to the Supreme Court in Vienna and is subject to various restrictions, depending on the matter in question. The Supreme Court will only accept an appeal for adjudication that raises legal issues of considerable importance. Appeals against second-instance judgments are not allowed in disputes valued at EUR5,000 or less regardless of whether such judgments raise an issue of legal importance. Further, if the value in dispute does not exceed EUR30,000 the appeal on points of law to the Supreme Court may also require leave to appeal from the court of appeal (directly or by means of a new application).
The Supreme Court is the highest court in civil cases. It decides on legal issues and is therefore bound in its judgment by the facts established in the lower courts. It only decides on the accuracy of the judgment made by the appeal court or highlights any invalidity and, to a limited extent, procedural errors in the previous proceedings. The Supreme Court may also decide on the matter itself (confirm or amend the judgment), repeal the previous decisions and instruct the regional court or the court of appeal to retry the matter, or dismiss the action.
Availability of class actions for infringement of competition law and/or damages in Austria
Although, technically, Austrian law does not (yet) provide for a class or group action in the strict sense, there are a few ways how claimants may group their claims and achieve efficiencies.
First, claimants may band together as co-claimants in a single lawsuit if the claims or the facts of a case are similar pursuant to Section 11 et seq. of the Austrian Civil Procedure Code (Zivilverfahrensordnung, “ZPO”).
However, even if the claims are sufficiently similar to be joined in one proceeding, such claims remain separate from a procedural law point of view. This means that the court will rule separately on each claim and each co-claimant may at any stage withdraw his claim or negotiate a settlement.
Second, claimants may assign their claims for damages to a single entity for collection. This has emerged as the preferred approach by claimants. While in some cases smaller claimants assigned their claims to financially stronger claimants, claimants in other cases have founded legal entities (e.g., a Verein) to which they assigned their claims and which acted as the sole claimant in the proceedings. Lawsuits pooling several hundreds of individual claims have been filed through the use of mass assignments.
Third, Austrian consumer organizations (Verein für Konsumenteninformation) and the Federal Chamber of Labor (Bundesarbeitskammer) may pursue claims of hundreds or even thousands of consumers. Such a claim also requires an assignment of individual claims to a single entity (e.g., the consumer organization itself). In the first private enforcement case in Austria, the Federal Chamber of Labor employed this technique and successfully took legal actions against members of a local driving school cartel (Fahrschulkartell).
Conduct of proceedings and costs
Burden of proof
The burden of proof lies, in principle, with the claimant who must prove that the following substantive criteria are satisfied:
i) An infringement of competition law
ii) Damage
iii) A causal link between infringement and damage
iv) Fault
In principle, the court must be fully convinced of the evidence on which it bases its judgment. In practice, however, claimants benefit from an easing of the burden of proof. For example, by an objective standard of proof, a piece of evidence is deemed to be “true” if there is such a high degree of probability that it is close to certainty (i.e., no reasonable person would have doubts).
First, infringement decisions are binding on civil courts. According to Section 37a of the Cartel Act, findings of a competition law infringement by the Cartel Court, the European Commission or any other competition authority in an EU member state have binding effect for follow-on claims.
Second, concerning damages, any evidence proving the damage is admissible, e.g. accounts showing a decrease in income. The civil courts may further decide to estimate the amount of damages on the basis of their “free conviction” pursuant to Section 273 ZPO. The courts may do so provided that the claimant established the occurrence of at least some damage and the precise amount cannot be determined (or not with reasonable efforts). Similarly, if the value of individual claims does not exceed EUR1,000, and the facts giving rise to the claim cannot be established without disproportionate difficulty, the court may determine the damage (Section 273 para 2 ZPO). So far, the Austrian courts have applied this provision only once in the context of an competition infringement (Fahrschulkartell).
Third, recent case law states that, in case of infringements of “protective laws,” a lower degree of certainty should suffice to establish causality, i.e., the fact that the damage was caused by the infringement of the defendant. For the compensation of loss of profit, Section 1293 ABGB sets forth that it suffices if the profit was probable, i.e., the profit could have been expected under the circumstances.
Fourth, with regard to the question of fault, the burden of proof is usually reversed. Pursuant to pertinent case law, competition rules are considered “protective laws” (Schutzgesetze) according to Sections 1298 and 1311 ABGB, an infringement of which justifies such a reversal. Thus, a claimant would not be required to prove that the defendant acted with fault, but rather the defendant would have to show that he acted neither intentionally nor negligently. The Supreme Court has held that in the context of competition law infringements it is difficult to conceive circumstances where no fault can be attributed to the infringers.
Fifth, a claimant might further ease its burden of proof by relying on the concept of prima facie evidence, which is well established in Austrian civil procedure. Accordingly, a claimant may benefit from a reversal of the burden of proof if it establishes the existence of a typical link between a proven fact and another (not yet proven) fact. In previous cases, claimants attempted to employ this concept to meet their burden of proof with respect to individual harm suffered. They argued that the fact that a cartel infringement occurred provides prima facie evidence that their customers suffered damages. The court of appeals rejected this argument. It held that such a generalization is inappropriate and that there is no typical link between a cartel agreement and damages to customers. The Supreme Court has yet to address the role of prima facie evidence in the context of follow-on litigation.
Joint and several liability of cartel participants
Pursuant to Section 1302 ABGB, where several natural or legal persons acted together intentionally and caused damage by way of joint action, such individuals or legal persons are generally jointly liable for the whole damage. It is well established in Austrian jurisprudence that members of a cartel are jointly and severally liable for the whole damage caused by the cartel.
If, however, the defendants can prove that they did not act jointly or intentionally (minor or major negligence) and specific parts of the damage can be allocated to each of the defendants, the defendants may each only be held liable for the part of the damage caused by them. If cartel members are jointly and severally liable, but claimants decide to take only one of them to court, that defendant is entitled to seek a contribution to damages from its fellow cartel members.
In the context of joint liability the Supreme Court just recently addressed the question whether all members of a cartel can be sued in the place where any one of them is domiciled (relying on Article 6 of the Brussels Regulation to say that the claims are connected). The Supreme Court stated that the joint liability of cartel participants establishes a connection between the claims, so as to allow an action in one jurisdiction against all alleged cartel members. The Supreme Court did not provide any further guidance on the requirements to establish such a liability.
Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege
Any type of evidence is admissible in Austrian civil proceedings, including tapes, films and digital files. Even evidence improperly obtained by the parties is admissible. The prevailing types of evidence are: (i) deeds and private documentary (Sections 292 to 319 ZPO); (ii) witnesses (Sections 320 to 350 ZPO); (iii) experts (Sections 351 to 367 ZPO); (iv) inspections (Sections 368 to 370 ZPO); and (v) questioning of the parties (Sections 371 to 383 ZPO).
The only exception to admissibility concerns evidence improperly obtained by the court itself (i.e., the method of obtaining evidence used by the court infringes constitutionally guaranteed rights). Such evidence is excluded, meaning that use of such evidence results in the nullity of the proceeding.
Witnesses may refuse to testify if this would (i) exposes them to a risk of criminal investigations (in particular Section 168b of the Austrian Criminal Code, Strafgesetzbuch, which prohibits bid-rigging), (ii) result in financial disadvantages for themselves or for their partner or family members, (iii) constitute a breach of a professional secrecy obligation, or (iv) reveal business secrets (Section 321 ZPO). The same applies to the parties to the proceeding (Section 380 ZPO).
US-style procedural discovery does not exist. A party may only obtain a court order for the production of documents if the requesting party is able to either provide copies of the respective documents or is able to provide sufficiently detailed descriptions of such documents’ content which allows for a clear identification of the documents (Section 303 ZPO). Document production can be legitimately denied if, for example, production would cause harm to the disclosing party, disclose a business secret or if the requested document falls under professional secrecy (Section 305 ZPO). Such justification is excluded if the document was created by both the claimant and the defendant (Section 304 ZPO). While, the court has no power to enforce the production of documents, it might nevertheless draw adverse inference of an unjustified refusal to produce documents.
Third parties can also be requested to produce relevant documents (Section 308 ZPO). The scope of this provision is limited to the production of known pieces of evidence and does not allow for “fishing expeditions.”
According to legal doctrine, evidence gathered through discovery in another country, where this is a legal means of collecting evidence, is admissible in Austrian proceedings.
Previously, Section 39 of the Cartel Act made access to the case file of a public enforcement procedure (including leniency documents) conditional on the consent of the parties to this procedure (which was usually not given). In a preliminary ruling proceeding (Donau Chemie), the European Court of Justice recently held that this rule is too rigid and thus liable to undermine the effective application of Article 101 of the TFEU. The current legal status is that Austrian courts should apply the balancing test suggested by the European Court of Justice in Pfleiderer. Thus, when confronted with a request for access to the file by a claimant, the competent court will balance the interest of the requesting party in a sound preparation of a damage action against the negative consequences disclosure might have on public interest in the effective enforcement of competition law (the attraction of leniency schemes in particular).
Legal privilege is not codified in Austrian law and has not been tested in domestic courts so far. While it is widely recognized that some form of legal privilege exists, its precise scope (whether it corresponds to the concept under EU law or differs in scope) is uncertain.
Pre-action disclosure
Pre-action disclosure is not available under Austrian law. Previous attempts by follow-on claimants to obtain disclosure of certain documents from cartel members in a preliminary proceeding by invoking reporting obligations under contract law (Section 304 ZPO in conjunction with Article LXIII of the Introductory Law to the Code of Civil Procedure – Einführungsgesetz zur Zvilprozessordnung) have failed. The Supreme Court held that such reporting obligation may not be used in order to overcome difficulties of gathering evidence in competition litigation.
Average length of time from issue of claim to judgment in Austria
Depending on the complexity of the case, an action for damages will take between eight months and two years to be resolved at first instance. An appeal against a first instance decision takes approximately nine to twelve months. Under certain conditions, in particular if a legal question of general interest is concerned and the claim exceeds a certain value threshold, a further appeal to the Supreme Court is possible, which may take a further nine to twelve months (approximately). It is not possible to expedite proceedings.
The length of time it has taken to resolve civil claims based on violations of competition law indicates that the duration of these proceedings may be considerably longer than “ordinary” proceedings. There have been numerous claims submitted to the Austrian civil courts since 2010. However, to date, the courts have yet to adopt a final decision on the merits in any of these cases.
Average cost from issue of claim to judgment in Austria
Average costs cannot be estimated without taking various factors into account, such as the amount claimed, the length of the proceedings, the number of witnesses to be questioned, the appointment of expert witnesses etc. The costs of individual procedures accordingly vary widely depending on the complexity of the case.
Court fees must be paid by the claimant upon filing any actions for damages. The fees are calculated on the basis of the amount claimed. Eventually, the costs (legal costs and court fees) have to be borne by the losing party. If a claimant succeeds in part, costs will be recovered in proportion to that success. Legal costs are reimbursed on the basis of a statutory tariff system.
Third-party/alternative funding
Austrian law does not prohibit third-party litigation funding. While third-party funding has gained popularity in Austria in recent years, it is still in an early stage of development. Thus, many of the procedural specifics of externally funded cases (e.g., whether the funding agreements need to be disclosed) have not been addressed by the courts so far.
For example, claimants in a pending follow-on litigation relating to payment card fees received third-party funding. The case is currently pending at the regional court level and the court has not decided over the disputed issues relating to external funding.
Alternative methods of dispute resolution
Alternative means of dispute resolution are available. Claims may be subject to arbitration or mediation.
Relief
Availability of damages and quantification
There are two different forms of compensation for damages: (i) indemnity (Eigentliche Schadloshaltung); and (ii) full restitution (volle Genugtuung). Whereas indemnity covers the actual loss of property (e.g., financial loss caused by overcharges due to price fixing), full restitution also covers loss of profits (e.g., lost business opportunities). If the defendant acted with minor negligence, only the actual loss is awarded. Full restitution, however, is the standard in follow-on cases, as an “entrepreneur” (Unternehmer) under the Austrian Commercial Code (“UGB,” Unternehmensgesetzbuch), is always liable for loss of profits, even if he only acted with minor negligence. Austrian law also provides for the right to recover interest.
Courts will determine quantum on the basis of a “but for” analysis but are generally free to choose the specific methodology. Litigation practice in follow-on cases has shown that courts exercise their discretion in line with the European Commission’s paper on quantification of damages, but eventually leave it to a court-appointed expert to choose the best calculation method for the specific case. In a currently pending case, for example, the court chose to compare different geographic markets. In another pending case, a comparison over time on the same market is envisaged.
Punitive and exemplary damages
Austrian law does not provide for punitive or exemplary damages in respect of competition claims.
Availability of interim or final injunctions in respect of an alleged competition law infringement
Generally, two types of interim measures might be relevant in private competition litigation. The court may grant an interim injunction to: (i) maintain the status quo (e.g., to prevent further damage); or (ii) freeze assets of the defendant to ensure the enforcement of a potential judgment ordering payment of damages. Interim payments in respect of damages are not available.
Emerging Trends
Private competition litigation is still on the rise in Austria. This is partially due to a recent amendment to the Cartel Act, which made it easier for claimants to succeed in court (e.g., binding effect of infringement decisions, suspension of limitation periods, etc.). At the moment, discussions about legislative amendments surround the question of whether further changes are necessary in light of the EU Antitrust Damages Directive.
In addition, private enforcement was supported by the decision of the European Court of Justice in Donau Chemie in 2013. Due to this ruling, it is much more likely that claimants obtain (partial) access to the authority’s case file (if their interests outweigh public interests), which will significantly improve their position in future cases. The increasing popularity of grouping claims through mass assignments and the availability of third party funding further promotes private enforcement.
Currently, a considerable number of proceedings are pending before the Austrian civil courts. The Supreme Court has (at least partially) ruled on a number of preliminary issues, such as joint liability, the admissibility of indirect purchaser claims and umbrella claims and limitation periods. So far, however, it has not rendered a major decision in which it awarded or declined to award damages. Thus, many questions regarding, e.g., the standard of proof and the quantification of harm are still open and are likely to be clarified once the pending cases reach the appeals stage.
1 The Commercial Code defines an enterprise as any economic activity intended to be performed permanently and independently in an organized manner, even if it is not aimed at realizing profit. The definition applies irrespective of size. Therefore, small enterprises (Kleinunternehmer) will also generally fall under the regime of the Commercial Code.
2 Exempted are appeals in cases where the value of the claim does not exceed EUR2,700. Appeals in such cases are restricted to grounds of nullity and questions of law (Section 501 ZPO).