12 February 2025
roadmap
austria vienna
Will disclosure obligations change the game for Austrian civil proceedings?
Directive (EU) 2020/1828 on representative actions was adopted in Austria on 18 July 2024. However, Austria has failed to implement key elements of the Directive. Article 18 of the Directive requires courts to have the power to order the disclosure of any evidence within the control of the defendant or a third party, with the aim of addressing information asymmetries. Yet, the new provisions of the Austrian Procedural Code (ZPO) do not include such disclosure obligations. How will claimants obtain potentially crucial evidence? And can they rely on any other existing disclosure obligations?
The provisions on disclosure obligations in the Austrian Procedural Code (Sections 303 et seq. ZPO; Art XLIII EGZPO) assume that both parties are on equal footing, with at least one party knowing that the other possesses the document and is aware of its contents. In certain cases, these obligations may even apply before legal proceedings are initiated. Thus, these provisions are inadequate for addressing information asymmetries. The corresponding provisions of the Austrian Antitrust Act (Sections 37j et seq. KartG), implementing Directive (EU) 2014/104 and applying only to follow-on antitrust damages actions, might be more suitable, as these specifically target information asymmetries between unequal parties. This antitrust procedure shares similarities with representative actions. However, a request for disclosure in antitrust proceedings can only be made during ongoing proceedings. The Austrian legislator has therefore excluded pre-trial discovery. Additionally, exploratory evidence ("fishing expeditions") is inadmissible under Austrian civil procedure law.
It remains to be seen whether courts will apply these antitrust provisions in practice, perhaps analogously to representative actions to close the gap, or whether they will apply Article 18 of the Directive directly, potentially opening the gates to discovery procedures after all.
author: Sarah Rosenthaler
Sarah
Rosenthaler
Associate
austria vienna