Austria already has a collective action regime in place

What is the most common type of collective action you are seeing?

Consumer and misleading action claims but with the implementation of the new collective redress regime data protection claims will likely increase.

What are the various ways a group could bring a collective action?

• Class action (Sammelklage): Consumers assign claim to a specific person, who files one action. The court decides all claims in one proceeding.
• Model lawsuit (Testprozess): Consumers assign claim to consumer protection association. Court decision binds all consumers whether or not they opt into the lawsuit. However, each additional consumer must initiate their own proceedings to benefit from the binding effect.

Specific consumer protection bodies are also entitled to file representative actions (Verbandsklage) in the public interest. Although not strictly a collective action consumers may try to convince these bodies to initiate proceedings to indirectly benefit from this action.

If collective actions are permitted, are these opt-in or opt-out actions?

Class action and model lawsuits are opt-in actions.

Does the law currently provide for private collective actions by consumers?

Yes, the class action.

If collective actions are permitted are the usual forms of relief permitted and can punitive damages be claimed?

The following forms of relief can be requested depending on the nature of the claim: performance (e.g. compensation, repair, replace, refund, publication of judgment), declaratory relief or an injunction. Claims for omission and publication of the judgment might also be asserted in preliminary injunction proceedings.

There are no punitive damages.

Are bodies which represent consumers able to bring actions on their behalf? And if yes, can these bodies bring cross-border actions?

The relevant bodies are listed in the Austrian Consumer Protection Act.

These bodies can file cross-border claims, if Austrian consumers are adversely affected.

Is third party funding of litigation permitted?

Yes, for class actions, only.

Is litigation funding permitted for collective actions?

But lawyers cannot work on a contingency fee basis.

Are consumer groups and law firms allowed to advertise the collective actions they are running?

Law firms have to adhere to strict professional requirements which prohibit aggressive advertisements.

Is there a formal mechanism to settle actions on a collective basis?

General court rules apply. In collective redress proceedings, consumers can choose whether to be bound but must let the claimant know prior to the settlement. In representative actions consumers have no participation right.

If a trader loses a collective action does the law require the trader to publicise this?

Only if the claimant has requested publication.

Is there a penalty for non-compliance with a final decision issued in respect of a collective action?

If a party does not comply the claimant enforces its rights by a separate enforcement action. A penalty is only imposed by the court in the case of non-compliance with a request of an imposed action or omission.

Contacts

With thanks to our friends at Dorda. Please contact Dr Axel Anderl, [email protected]

The Collective Redress Directive must be implemented in all EU member states by 25 December 2022. To find out more about the current progress of implementation of the Directive in this jurisdiction click here.