I INTRODUCTION TO CLASS ACTIONS FRAMEWORK
Austrian civil procedural law does not provide for a class action system that is comparable to real class action provisions like those implemented in other jurisdictions such as the United States.
Nonetheless there are options of enforcing collective interests. These options do not, however, strictly classify as class actions in a common sense.
i Austrian-style class actions
Austrian legal practitioners implemented a model process, by which – most frequently – consumer organisations as the Austrian Consumer Information Association (VKI), but also the National Chamber of Labour bring claims on behalf of parties that have previously assigned their rights to the organisation. In these cases the organisation then claims all assigned rights in an ordinary two-party lawsuit.
There are no restrictions as to which entity or person may be assigned to pursue mass claims on its behalf. Not just consumer organisations but also other entities may be assigned to promote claims throughout mass proceedings. This often goes along with third-party funding.
ii Joinder of parties
Other provisions under the Austrian Code of Civil Procedure (ACCP) facilitate a consolidation of claims when (1) the jurisdiction for all respective claims lies with the same court, (2) the same type of procedure is applicable to all claims, and (3) the matter in dispute is of a similar or identical nature and addresses the similar or identical type of facts.
iii Linking of proceedings
Also, judges may bundle proceedings, bringing a reduction of costs and helping to speed up or simplify the procedure.
iv Actions by representative bodies
Also worth mentioning are representative actions by associations. Various laws such as the Act Against Unfair Competition and the Austrian Consumer Protection Act authorise certain representative bodies to bring actions for injunctive or declaratory relief on behalf of consumers. However, as the standing to sue lies with the representative bodies, such actions do not constitute a class action instrument in the strict sense.
II THE YEAR IN REVIEW
In the past year efforts to implement ‘real’ class action provisions in Austria have generally increased. Next to consumer organisations that have been calling for the implementation of class actions provisions in Austria for years, political parties have also now focused on the topic and submitted parliamentary motions calling for the introduction of an effective system to enforce collective interests. Furthermore, scholars and judges openly joined the discussion and spoke out to the media for the implementation of class action provisions.2 A crowdfunding platform in support of class actions in Austria as initiated by the former head of the VKI has, however, lost some momentum owing to a lack of financial support in the past year.3 At the same time, the entry into force of the General Data Protection Regulation (GDPR)4 in combination with legislative implementation steps taken by Austria5 will bring about means for non-profit organisations to file lawsuits for damages in case of breach of data protection rules upon the mandate of affected persons, which can include claims brought by a large number of affected persons.6
Backing the predominant Austrian system, critics of the current ‘pro class action efforts’ point out that the Austrian Civil Procedure Code already provides for possibilities to enforce collective interests.7 Furthermore, critics red flag a certain blackmailing potential of class actions.8
With regard to potential future litigation, it should be mentioned that Wienwert Holding AG, an issuer of certificates related to real estate investments, became insolvent in February 2018. Collective customer claims, and lawsuits, may follow in that context.9 Further, the Austrian consumer protection association VKI is currently assessing possibilities for collective action against Volkswagen.10 Finally, another platform working together with an international litigation funder have recently launched a collective action against Volkswagen in Austria and plan to file more going forward.11
As outlined above, the following procedural tools are useful for pursuing collective interests, although they differ from real class action provisions.
i Joinder of parties
If two or more parties on one side of the civil proceedings are involved in a court dispute against a single opponent, Section 11 ACCP allows a joinder of parties to facilitate the proceedings, save costs and to allow uniform decisions. This procedural instrument distinguishes between a formal joinder and a material joinder of parties.12
Material joinders occur in cases, where several parties jointly hold a claim (co-heirs, co-owners, etc.), or for cases where the underlying facts of each claim are identical (similarity of facts is not enough in this regard).13 A material joinder establishes a common place of jurisdiction (competent court) and causes the claim amounts to be added up (affecting the costs of the proceedings).14 A material joinder is useful for either a group of claimants that forms a group of creditors by operation of law or for parties that constitute any other form of legal community or alliance.15 Examples are several persons injured by one and the same accident or tenants that rent the same apartment.
For a formal joinder, different requirements are provided for. It can be established under the following conditions:
- one and the same court has jurisdiction for all claims (therefore, a common place of jurisdiction is created, for example, because the claim is directed against a single defendant at the place where the latter is domiciled); and
- the matter in dispute is based on the same nexus, meaning similar facts and similar questions of law. Complete identity of the facts is not required for a formal joinder.16
Regarding formal joinders, claim amounts remain separate, underlining the independence of each claim from each other. In general a formal joinder is the appropriate procedural tool for cases involving a number of similar claims. Obvious examples would be that a group of tenants of different apartments is sued for outstanding house rent, or a group of employees sues the employer for outstanding salary.
Both in case of material and formal joinders, the individual claims remain formally independent. Consequently, each claim must fulfil the procedural requirements for civil claims individually, and the same kind of procedure applies to all claims. The proceedings are merely combined. As a result procedural steps taken by one claimant that solely address the course of the procedure also have an impact on the other joinders, while procedural moves, which address the individual civil claim, only affect the claim of the joinder that takes this procedural action.17 In other words, each claimant can waive, settle or set off one’s claim without affecting other joinders. The same holds true for remedies, amendments or withdrawals of claims. This kind of conduct only affects the claim of the joinder that sets the respective procedural action.
With regard to both formal and material joinders of parties, court rulings only address the individual claims. Thus, a court ruling on one claim does not constitute a legally binding precedent for all the other joinders – rulings may even differ. However, practice shows that in most cases a ruling on one claimant has a factual impact on the outcome of the claims of the other joinders.
Joinders of parties do not solely depend on the discretion of the court. Also, parties are entitled to initiate this kind of procedural tool.
Even though a joinder of parties helps to facilitate proceedings that involve more than one party on one side of the proceedings, this procedural instrument soon reaches its limits. In practice, real mass proceedings would still not be feasible. Joint proceedings including hundreds of parties would simply not be administrable.
ii Linking of proceedings
In terms of efficiency of civil proceedings – especially reducing overall costs and duration – civil courts are authorised to link separate and pending civil proceedings pursuant to Section 187, Paragraph 1 of the ACCP.
In order to apply this provision the following preconditions have to be met:
- the proceedings to be linked have to be pending before the same court; and
- at least one party to the proceedings has to be involved in the same role in all proceedings (either the respondent or the plaintiff).
The linking of proceedings depends on the discretion of the court.18 At any time linked proceedings can also be separated again. The parties themselves do not have the right to demand either the linking or the separation. In this respect there are no remedies against the court’s decision.
According to Austrian law, linked proceedings do not have the effect that parties are joined; also, the amounts in dispute are not added up. As a result, the parties’ claims remain entirely separate.19 One party’s procedural conduct has no legal effect on other parties of the linked proceedings. Also, a ruling on one party does not set a legally binding precedent for other involved parties (although a factual impact on the outcome of the other claims can be expected).
Even though the preconditions outlined above are the only requirements for courts to link proceedings, judges will most likely only link proceedings regarding related claims. This goes along with the provision’s objectives to simplify proceedings, and reduce their duration and overall costs.
For collecting collective interest in real mass proceedings this procedural tool is also not a satisfying solution. Uniform decisions still cannot be ensured and more importantly parties are not entitled to initiate the linking of the proceedings. Generally, courts are reluctant to link proceedings, because of the additional workload involved for the judge linking proceedings together. In light of the fact that the parties do not have a right to formally request the linking, the practical importance of this tool in general (i.e., even outside the scope of ‘class actions’) must not be overestimated.
iii Austrian-style class actions
This procedural tool was originally developed through case law. After several court decisions the Austrian Supreme Court approved the concept in its milestone decision under reference No. 4 Ob 116/05w. In this case, multiple aggrieved parties assigned claims for the return of excessive consumer loan interest payments to the Federal Chamber of Labour. The concept is now often used in connection with third-party funding.
As outlined above, class actions in Austria work differently from class actions under, for example, the US rule. Under the US rule one or several claimants (representative parties) act on behalf of a large number of other affected persons who – in most cases – are not engaged in the proceedings themselves and sometimes are not even known by name to the competent court. Nevertheless a possible ruling has an effect on all individuals affected by the case.20 Under the US rule this effect can only be barred by ‘opting out’ from a possible ruling.
Under Austrian law this mechanism is not permitted. According to the provisions of the Code of Civil Procedure it is necessary for an affected person to assign the right to claim to another entity or person in order that the latter obtains locus standi to pursue the claim in the interest of the assigning parties. This person or entity then pursues the claim on its own behalf, usually in an ordinary ‘two-person trial’. As a matter of fact, the assigned entity or person then functions as the sole claimant in a procedural way. There are no procedural limitations as to who may bring a class action claim (in the Austrian manner). So far most class actions (in Austria) have, however, been brought by the VKI and the Federal Chamber of Labour.
In Austria, the effect of rulings in class action proceedings only includes parties that have previously assigned their rights to the formally claiming entity. Nevertheless, although the claims are accumulated by way of the class action, each claim remains legally separate and the court must decide on each claim (but possibly in one single judgment or by way of partial judgments). Thus, a decision on one claim does not constitute a legally binding precedent for other claims, although such a decision will typically have substantial factual impact on the other claims.
In order to bring class actions, the following preconditions developed by the Austrian Supreme Court (4 Ob 116/05w) must be met:
- the base as well as the respective questions of law and facts must be of similar kind or essentially the same; and
- the same procedure must be applicable for all claims.
It is not necessary for the facts or the questions of law to be completely identical. There is also no minimum number of claims to make this procedural tool available.
Unlike class actions under US law, each asserted claim that has been assigned is also subject to individual examination with regard to procedural requirements and specification of the claimed amount. For effective law enforcement it is therefore necessary to gain a clear understanding of each assigned claim also with regard to the amount in dispute. Substantive plea is necessary for each claim. In 2011, the Austrian Supreme Court rejected a class action claim in a retail investor’s dispute due to a lack of plea on every single investor contract of each claimant (3 Ob 2/11g).21 In addition, each assigned claim needs to be supported by substantive evidence. Before submission of the claim it is also necessary to check whether the class action claim is also partly based on claims assigned by minors. According to Section 167 of the Austrian Civil Code, civil claims on wealth-related matters (like a claim for damages) require the approval of the guardianship court.22 The careful preparation of a class action claim involving the claims of hundreds or even thousands of individuals is therefore essential and requires considerable organisational effort and costs.
iv Actions by representative bodies
Representative actions by associations play an important role with regard to the practical enforcement of consumer interests. Even though such actions cannot be compared to real class action provisions, they are comparable given that one single court action aims to protect the interests of an entire group of persons, mainly consumers or competitors. The main issues can be summarised as follows.
In principle, the right of action lies with designated representative bodies. Consequently, other natural persons or legal entities do not have the right to use this tool. The right of action is also limited to prevent companies from using certain general terms and conditions as well as from engaging in certain unlawful business practices. The relevant provisions regarding this course of action designed to protect consumers’ interests can be found in the Austrian Consumer Protection Act. Further, an equivalent tool is foreseen in the Austrian Act against Unfair Competition, which sets out the rules to fight unfair, aggressive or misleading business practices. Further, cases of discrimination against disabled people may entitle consumer organisations to bring representative actions.23 Representative actions, therefore, mainly pursue public interests. Following a successful representative action, the respective clause in the terms and conditions under scrutiny or the relevant market conduct must not be used any more towards any customer or consumer. This means that the representative action exonerates the consumers or affected customers from taking costly and risky legal action themselves.24
The institutions entitled to initiate representative actions are outlined in Section 29 of the Consumer Protection Act and Section 14 of the Act against Unfair Competition. Among those organisations, the most important entities are:
- the Austrian Chamber of Commerce;
- the National Chamber of Labour;
- the Austrian Trade Federation; and
- the VKI.
Many of these institutions have compulsory membership or are publicly funded.
v Commencing proceedings
As already mentioned above, class actions in Austria can be initiated by any person or entity to which the individual damaged parties have previously assigned their rights. There are no restrictions in this regard. In practice, claims are usually brought by consumer organisations or other entities powered by or cooperating with third-party funders.
Class actions in Austria work on an ‘opt-in’ basis, since Austrian Civil Procedure law sets forth that the decision to claim lies within the sole discretion of each party.25 There is (subject to exceptions not relevant here) no way under Austrian procedural law to bind a party to a procedure that it was not formally part of.
Class actions need thorough preparation before a formal claim is actually filed. In the first place, the legal entity designated to ultimately file the lawsuit needs to attract a sufficient number of damaged parties interested in transferring their claims in order to make the project commercially viable (i.e., large enough to attract third-party funding). Third-party funders will generally only be interested in the case, if the aggregate amount in dispute is big enough to cover its compensation if the litigation is successful, this being at least a high six-digit, or preferably a seven-digit euro or US dollar amount. Since this takes time and damage claims are normally subject to a limitation period of three years from the time the damaged party comes to know of the damage and the responsible party, timing is of the essence. In other words, potential ‘class action’ cases need to be identified at an early stage in order to raise the chances for the claimants to proceed with good prospects of success. After identifying the claims, a lot of ‘marketing’ is required in order that as many individual parties as possible are made aware that they may join a class action. In particular, the consumer organisations often initiate campaigns in the media to inform about a possible course of action. For example, the VKI offers online forms for potential claimants in order to quickly gather and analyse the necessary data. In any event, such campaigns take place on an optional basis. Nobody is obliged to participate in this court process and can decide to pursue his or her claims alone instead.
Subject to the precondition being met that Austrian courts assume jurisdiction, there are no restrictions in place on who can be included in the claim. The only requirement is that the claimant has assigned one’s right to the person or entity that subsequently pursues the class action claim on its behalf in Austria. Since court rulings only address parties involved in the civil proceedings, claimants need to ‘opt in’ to the proceedings by way of transferring their respective claim. In general, parties to civil proceedings are determined by the claim that also defines the rights and obligations arising from the procedure. The claim outlines who is a claimant and who is a respondent. Consequently, except for intervening parties, there are no legal grounds for parties to join civil proceeding at a later stage.
According to Austrian law, it is allowed to use the instrument of third-party funding to receive the funds to initiate mass proceedings (this issue was, however, heavily discussed among scholars). In case of success, the funder takes a substantial share of the litigation proceeds (e.g., one-third or more); in case of a loss, the funder covers the claimant’s costs and the opponent’s costs. As described above, affected persons have to assign their right to claim to such a funding entity that then pursues the claim in an ordinary two-person lawsuit.
vi Joinder of parties
When the certain conditions for either a formal or material joinder are met, parties are entitled to initiate civil proceedings as joinder of parties. Joinders of parties are on an ‘opt-in’ basis. As described above, it is a key principle of the Austrian Code of Civil Procedure that the decision to claim lies at the sole discretion of every party. Claimants and defendants are determined by the claim.
vii Linked proceedings
The linking of proceedings depends on the discretion of the court. Therefore, parties do not have the procedural right to demand such an action. Parties do not have a remedy to challenge a court’s decision on whether proceedings are linked or not. Practical experience shows that judges seem generally reluctant to link proceedings together, which is also because of the fact that linking proceedings increases the workload for the judge taking such decision (see above).
viii Representative actions
As outlined above, representative actions can only be initiated by consumer or other legally privileged organisations that are determined by the law. The subject matter is limited to injunctive or declaratory relief arising from general terms and conditions or certain business practices. With regard to representative actions, the ‘class’ is defined by the people affected by the unlawful conduct of the defendant.
ix Procedural rules
As the existing class action system in Austria was mainly developed through case law, there are no special provisions that differentiate class action proceedings from ordinary two-party civil proceedings. The above-mentioned class action is actually – from a procedural perspective – a standard two-party procedure, since the plaintiff files the claim on the basis of a number of claims previously transferred to him or her by way of transfer agreement. In contrast, in case of joined proceedings, the court has to apply the same procedural rules for a case joining a greater number of plaintiffs filing action against the defendant than for a standard case with just two or three parties on either the plaintiff’s or the defendant’s side. This is why joining proceedings is unlikely to bring about any time and efficiency (and also cost) benefits once the number of plaintiffs gets too high. The same holds true for the method of linked proceedings.
How to structure court proceedings is largely up to the discretion of the court. The standard process is to assess the entire factual basis of the claim, including both the issues relevant for the liability of the defendant in principle and the quantum. However, in cases where the assessment of the quantum triggers substantial additional process, the courts are allowed to issue an interim judgment deciding on the liability of the defendant in principle (interim judgment). This judgment can be appealed separately, which assists a timely final resolution of this prerequisite of any damage claim before spending too much time and resources on quantum. This general procedural tool is likely to be helpful in class actions in particular.
Against this backdrop, the likely duration of class action proceedings can only be estimated with a view to general experience, taking into account the specifics of assessing the facts relevant for the claims of a higher number of persons on plaintiff’s side. A significant number of witnesses to be heard adds as much to the timeline as the involvement of court experts assessing factual issues, which requires specific knowledge that a judge does not have. In fairly straightforward cases the first instance proceedings take – on average – one to two years, while more complex cases may prolong the procedure to three or even four years with exceptional cases going beyond that timeline.
It is fair to say that a class action will, in many cases, require such a broader factual assessment. In many cases, the various damaged parties (i.e., the parties who have previously transferred their claims to the formal plaintiff in case of the Austrian class action) need to be heard by the court and, depending on each damaged party, additional witnesses may play a role. Having said that, ‘class action’ proceedings will likely take approximately three years in the first instance, if not longer. They still do, however, help to reduce the duration of civil proceedings in general. By way of comparison: if many individual claimants initiated lawsuits against a single defendant, there would be the possibility for courts to pick one procedure as a model case in order to have the main questions of the case decided and not pursue all the other proceedings until then. Depending on the progress of the case defined as the model procedure, decisions in other proceedings will be delayed.
Appeal proceedings or third instance proceedings to the Supreme Court are added to the timeline described above. While it is obvious that complex cases also take more resources of the higher courts weighing on the timeline, it is notable that the factual review in the appeal stage is strictly limited to grave errors of factual appraisal and procedural errors, which negatively affected the collection of the factual basis of the judgment. No party is allowed to bring up any new factual allegations or any additional evidence in the appeal stage. Typically, appeal court proceedings take approximately six to nine months, and the same holds true for the third instance to the Supreme Court. Given the additional complexities of class actions, it is realistic to estimate the duration of the appeal and third instance proceedings to the Supreme Court as one year to 15 months each.
x Damages and costs
The Austrian court procedure in commercial cases does not foresee a jury process. Juries are used for criminal cases involving very severe crimes only. Typically, commercial court cases are handled by a single judge, who is assigned the case through a predetermined internal case assignment system. In cases with higher amounts in dispute, which a class action ‘Austrian style’ will likely qualify for, each party may request the dispute to be dealt with by a three judge’s senate. Depending on the nature of the case (civil or commercial law), these judges are either professional judges or partly lay judges.
Depending on the nature of the case, the calculation of damage may require the involvement of court experts, such as public accountants, if more complex issues need to be considered. If damages only need to be added together depending on the number of damaged parties involved, most judges would do this calculation work themselves. In some cases an accountant may be retained as an expert by the court to do this job. The calculation method for damages under Austrian law is driven by a rather strict causality test. The plaintiff needs to prove that owing to the unlawful action of the defendant certain measurable damage was caused. As a principle only the direct loss is covered. In cases of gross default (intent and gross negligence) or in commercial business relationships, the loss of profit is also reimbursed. There are no punitive damages in Austria. Damages for personal injury including compensation for pain and suffering are recoverable, but the amounts awarded by the courts are much lower than, for example, those a US court may grant in comparable cases.
Costs of civil proceedings in Austria depend on the number of parties involved, the duration and complexity of the case (numerous witnesses need to be heard orally before the court, need for expert opinions, etc.) and the amount in dispute (affecting both court fees and level of attorneys’ fees). For each court instance from filing the lawsuit, appeal stage and third instance to the Supreme Court a court fee pursuant to the Court Fee Act falls due, which is calculated as a fixed percentage fee based on the amount in dispute. Court fees add significantly to the costs of court litigation, especially in case of higher amounts in dispute. By way of example, a civil claim of €10 million triggers a court fee of €122,987. Plaintiffs therefore need to calculate the damage diligently in order to avoid excessive claims. At the same time, this regime discourages strategically driven exorbitant claims to induce a fast settlement with the defendant.
According to Austrian civil procedural law, parties to civil proceedings initially have to bear their own costs (including costs for attorneys). The first instance court fee must be paid by the claimant upon filing of the lawsuit; the appeal court and third instance court fee must initially be paid by the party losing in the foregoing instance. Generally, civil proceedings in Austria are governed by strict liability, meaning that reimbursement of costs (including court fees and other costs of the procedure, e.g., fees of a court expert) depends on the outcome of the proceedings.26 In the case of a 100 per cent win, the losing party has to fully reimburse the winner. In the case of a shared win, reimbursement depends on the success rate. In this regard only the ruling of the final instance is decisive. Reimbursement of attorneys’ fees solely takes place according to the Austrian Lawyer’s Fee Act that stipulates rates for work hours at the court and for briefs.
With regard to class actions, the court will award the costs according to the scheme described above only between the defendant and the procedural claimant, which means the claimant to whom the individual claims have been assigned. The distribution of the awarded costs among the parties assigning the individual claims is not governed by the procedural law (since the assigning parties are not formally parties to the proceedings), but is subject to the agreement between the assigning parties and the procedural claimant.
In case of joined or linked proceedings, the court will ultimately issue a court decision on costs with respect to each party involved. As each case is subject to individual court assessment, the cost decisions with respect to each claimant may vary.
As there are no special provisions for class action claims in Austria, ordinary civil procedural law is applicable. Settlement agreements are typically concluded both out of court and in court. If the parties settle a dispute out of court, the claimant typically simply withdraws the claim or the claim is suspended by way of mutual consent of the parties. A settlement in court also terminates the dispute and the settlement agreement is enforceable as such.
The effect of a settlement only binds the parties that have entered into a settlement agreement. Settling a dispute lies with the sole discretion of each party. This also applies to class actions. The claimant to whom the claims have been assigned can freely decide whether or not to settle a claim. To what extent the individual assigning parties may have a right to approve or reject a settlement offer, depends on the arrangements made on the occasion of the claims assignment. The assigning parties – since they have transferred their respective claims – cannot independently prevent a settlement entered into by the procedural claimant (unless on the basis of the contractual arrangement between the assignors and the assignee).
IV CROSS-BORDER ISSUES
As Austrian procedural law does not foresee tailor-made rules for class actions, Austria will primarily be the place to file the claim, if the defendant is domiciled in Austria or Austrian courts assume jurisdiction on the basis of the places of special jurisdiction pursuant to the Brussels Ia Regulation, for example, the place of performance (Article 7 No. 1) or claims based on tort (Article 7 No. 2), provided that the plaintiff is domiciled in an EU Member State. Further, parties domiciled in another EU Member State may be added to Austrian proceedings as co-defendants if the various claims are closely connected (Article 8 No. 1) However, as much as any other judgment issued by a court of a jurisdiction in the territorial scope of the Brussels Ia Regulation or the Lugano Convention II, a final Austrian court judgment will then be recognised and enforceable within (most) European Member States.
Further, as described above, the effects of an Austrian court judgment are (subject to a few exceptions) limited to the persons that are formal parties to the proceedings. Parties that do not play a part in the procedure, no matter whether domiciled inside or outside Austria, are not affected by the judgment.
As regards enforcement of foreign judgments in Austria, again the rules of the Brussels Ia Regulation are of primary importance. On this basis, Austria by and large recognises and enforces judgments issued by an EU court. In several instances, bilateral treaties are in place providing for mutual recognition and enforcement of judgments. However, failing any such treaty guaranteeing reciprocal treatment of judgments of either state, Austria does not recognise a foreign judgment. Even factual reciprocity does not suffice. Consequently, for example, US court judgments are generally not recognised and enforced in Austria. If overseas claimants have assets within Austria or the European Union, those assets can, however, be subject to enforcement measures based on an Austrian ruling. Last but not least, Austria recognises and enforces foreign EU judgments based on the Brussels Ia Regulation with no regard as to whether these foreign judgments have been rendered on the basis of standard proceedings or specific class action regimes applicable in the EU Member State of origin of the judgment.
V OUTLOOK AND CONCLUSIONS
It is subject to ongoing debate whether the Austrian legislator shall implement specific class action rules, or the existing procedural tools including the Austrian class action provide the necessary amenities to ensure that well-founded claims can be filed by damaged parties without being deterred by the cost risk, duration and complexity of single court action.
1 Holger Bielesz is a partner and Paul Krepil is an associate at Wolf Theiss.
2 Klauser. Warum Österreich eine echte Sammelklage braucht, Der Standard 2 October 2017; Kodek, Die Presse 2017/40/05; Wendehorst, Die Presse 2017/42/03.
3 http://help.orf.at/stories/2848692/ (visited on 19 February 2018).
4 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation; GDPR).
5 Data Protection Adaptation Act 2018 [Datenschutz-Anpassungsgesetz 2018], Federal Gazette No. I 120/2017.
6 Cf. Sections 28, 29 Data Protection Adaptation Act 2018.
7 As described in some detail below.
8 Stefan Albiez, VbR 2017/74, 111.
9 https://diepresse.com/home/wirtschaft/verbraucher/5356458/Wienwert_Was-Anleger-nun-machen koennen?direct=5356830 (visited on 19 February 2018).
10 https://verbraucherrecht.at/cms/index.php?id=2419 (visited on 20 March 2018).
11 https://www.dieselklage.at (visited on 20 March 2018).
12 For the sake of clarity, the following explanations are simplified. In particular, cases, where the claim of several parties must necessarily lead to the same court decision for or against all claimants (Section 14 ACCP; e.g., a claim of several shareholders of a partnership to exclude one co-partner), are not covered here, because they are regularly not relevant in class action scenarios.
13 Schneider in Fasching/Konecny (Third edition, 2017) II/1 Section 11 ZPO, Rz 7.
14 Rechberger/Simotta, Zivilprozessrecht (Ninth edition, 2017), p. 187.
15 Rechberger/Simotta, Zivilprozessrecht (Ninth edition, 2017), p. 185.
16 Schneider in Fasching/Konecny (Third edition, 2017) II/1 Section 11 ZPO, Rz21.
17 Rechberger/Simotta, Zivilprozessrecht (Ninth edition, 2017), pp. 187–188.
18 Höllwerth in Fasching/Konecny (Third edition, 2017) II/3 Section 187 ZPO, Rz 28.
19 Höllwerth in Fasching/Konecny (Third edition, 2017) II/3 Section 187 ZPO, Rz 4.
20 Knötzl, Sammelklage – Unsere ZPO am Prüfstand?, AnwBl 2006, 82, 2.
21 Koller, Effektive Rechtsdurchsetzung durch Sammelklagen!?, Zak 2012, 63, 3.
22 Fischer-Czermak in Kletečka/Schauer, ABGB-ON1.04 Section 167, Rz 27.
23 Section 13 of the Federal Act on Employment of Disabled Persons (Federal Gazette [BGBl.] I No. 82/2005).
24 Welser/Zöchling-Jud, Grundriss des bürgerlichen Rechts (14th edition, 2015), p. 355.
25 Rechberger/Simotta, Zivilprozessrecht (Ninth edition, 2017), p. 243.
26 Rechberger/Simotta, Zivilprozessrecht (Ninth edition, 2017), pp. 263–264.