Recognition and Enforcement of Foreign Titles in Áustria

Before recognition of a title, Austria offers some possibilities for research regarding a (future) judgement debtor, however access to certain information is still restricted. It is there e.g. possible to research a current address as well as to do a name query in the company, thus revealing any companies the judgement debtor in involved in as a director or shareholder. However, the land register does not allow a name query at this stage. Therefore, research is restricted to the addresses revealed by the address query, or the company register. 

Foreign titles can be enforced in Austria under certain circumstances. In some cases, a declaration of enforceability of the foreign title is required. If this is the case, a proceeding for an enforcement declaration can be initiated. This is a one-sided document procedure, i.e. the application for a declaration of enforceability is to be decided by court order without a prior oral hearing and without consulting the opposing party. This means that no new information about the debtor is disclosed in the enforcement declaration proceeding that was not already known in the title proceeding.

However once recognition is obtained, further research possibilities open up. For one, the land register may now be queried by the judgement debtor’s name, thus revealing any real estate owned by the same. Secondly, a social security query is possible which shows any employment the judgement debtor has.

Furthermore in enforcement proceedings, under specific circumstances — particularly following an unsuccessful execution against movable property or the unsuccessful enforcement of a claim — the debtor is obligated to submit a statement of assets. This statement must include the debtor's personal data (such as date of birth, social security number, and maintenance obligations), as well as a detailed inventory of the debtor's assets and any claims the debtor holds against third parties (such as an employer).

Pursuant to Section 403 of the Austrian Enforcement Act (EO), acts and documents originating abroad (‘foreign titles’) necessitate a declaration of enforceability in Austria for enforcement, unless they are enforceable under an international agreement or a legal act of the European Union without such a declaration. Consequently, in instances of conflict between statutory law provisions and applicable treaty provisions, the latter shall take precedence. 

The principal EU regulation in this context is Regulation (EU) No 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I recast, EuGVVO in Austria). The Brussels I recast sets forth uniform rules designed to facilitate the free circulation of judgments throughout the EU.

According to Art. 36 Brussels I recast, judgments given in a Member State are recognized in the other Member States without any special procedure being required. Furthermore, a judgment given in a Member State which is enforceable in that Member State is also enforceable in the other Member States without the need for a declaration of enforceability by the Member State in which a foreign title is to be enforced. Merely the foreign court, which has given the relevant judgement, needs to fill out a declaration of enforceability according to Art. 53 Brussels I recast in its official language as well as the language of the Member State of the intended enforcement. For this purpose a simple, multi-lingual form is available.

Furthermore, the Lugano Convention governs the mutual recognition and enforcement of judgments from the national courts of EU member states and the contracting states of Norway, Switzerland, and Iceland. According to the Lugano Convention, judgments rendered in one contracting state shall be recognized in the other contracting states without the need for any special procedure. However, in contrast Brussels I recast, judgments require to be declared enforceable — upon application — by the responsible court in the country in which enforcement actions are to be initiated.

According to Art. 36 Brussels I recast, judgments given in a Member State are recognized in the other Member States without any special procedure being required. Furthermore, a judgment given in a Member State which is enforceable in that Member State is also enforceable in the other Member States without the need for a separate procedure to have the judgement declared enforceable. 

The judgment creditor must only provide a copy of the judgment and a declaration of enforceability by the original court according to Art. 53 Brussels I recast.

In cases where international agreements exist, the (simple) recognition of foreign judgments may occur ipso iure, i.e. without a special procedure. However, in some cases (if no international agreement exists or facilitates this) for domestic enforceability a declaration of enforceability as outlined in Sections 406 et seq EO is required. 

The application for a declaration of enforceability must be submitted to the court of the place where the debtor is domiciled. The party may combine this request with an application for an enforcement authorization.

The requirements for a foreign title to be declared enforceable in Austria are set out in Sections 406 - 408 EO.

The basic requirements for enforceability are as follows:

• The enforcement title is enforceable in the state of issuance of the judgment;
• Reciprocity is guaranteed by state treaties or by ordinances;
• The state of origin would have had international jurisdiction according to Austrian law; 
• The document instituting the proceedings was properly served to the defendant;
• The judgment is no longer subject to a stay of execution according to the certificate of the foreign court or other authority under the law applicable to the latter;
• There are no grounds for refusal. Pursuant to Section 408 EO reasons for refusal are:
  • It was not possible for the defendant to participate in the proceedings before the foreign court or authority due to an irregularity in the proceedings; 
  • The declaration of enforceability is intended to enforce an act that is either unlawful or unenforceable under Austrian law;
  • A legal relationship is to be recognized or a claim is to be realized by the declaration of enforceability which is denied validity or enforceability by domestic law in Austria for reasons of public order or morality.

Once a foreign judgment has been declared enforceable in Austria, its execution follows the same rules as those for a domestic judgment, meaning that the enforcement of judgments is regulated by the EO. However, it never has effect beyond that in the state of origin.

Concerning acts and documents executed abroad that exclusively pertain to property law matters and are not subject to execution, Section 415 EO applies. This provision primarily pertains to declaratory and constitutive judgments. Recognition under Section 415 is granted solely upon application. The right to apply is not confined to the parties involved in the original proceedings or their legal successors; third parties, in particular those affected by the foreign act or those who can derive rights from it, are also entitled to file an application.

A decision on recognition and enforcement is typically rendered at the first instance within one to two months. If the decision is appealed, this period can be extended by up to an additional six months.

There are no court fees for filing an application for a declaration of enforceability. However, the application for enforcement of the judgement incurs court fees, which vary based on the amount being enforced.

Pursuant to Article 45 and 46 Brussels I recast on the application of any interested party or of the person against whom enforcement is sought, the recognition or the enforcement of a judgment shall be refused, if

• the judgement violates Austrian ordre public;
• the document instituting the proceedings was not duly served to the defendant;
• the recognition or enforcement is irreconcilable with an earlier judgment given in another Member State and involving the same parties and the same cause of action; or
• the recognition or enforcement is incompatible with a judgement given in Austria involving the same parties.
  

The defendant may lodge an appeal against a decision on the application for a declaration of enforceability in accordance with Section 411 EO. 

The decision on the declaration of enforceability may be appealed within four weeks of service. This period may be extended to eight weeks if a party does not have its habitual residence in Austria and the appeal represents the first opportunity for the party to participate in the proceedings.

The debtor is obligated to raise all grounds for opposing the declaration of enforceability in their appeal simultaneously and is barred from introducing them at subsequent stages of the proceedings.

There is no specific statutory time limit for having a foreign judgment recognized or declared enforceable. Therefore, the general limitation periods apply.

There are no court fees for filing an application for a declaration of enforceability. Thus only the costs of legal representation need to be claimed. In principle the legal cost of the filings in a recognition proceeding, can be claimed as calculated on the basis of the Austrian Attorneys Tariffs Act (RATG). However according to Section 412 para 1 EO an application for recognition of enforceability can be combined with an application of enforcement. This is usually interpreted by the courts as a rule that those applications usually need to be combined, in which case the costs also need to be calculated separately.

Once the declaration of enforceability has become final, the foreign enforcement title is to be treated as a domestic enforcement title pursuant to Section 413 EO. However, it never has effect beyond that in the state of origin. 

Pursuant to Section 412 para 1 EO, the application for a declaration of enforceability may (i.e. according to the courts need to) be combined with the application for enforcement authorization. The court must decide on both applications at the same time.

Austrian enforcement law provides for various types of enforcement measures. It distinguishes between titles to be enforced for monetary claims or claims for specific performance and identifies which assets will be targeted for enforcement.

The common methods of enforcement include:

• Seizure of property;
• Attachment and transfer of receivables;
• Compulsory leasing; and
• Judicial action.

A declaration of enforceability (Sections 406 et seq. EO) of a foreign title can also be applied for after the opening of insolvency proceedings.

However, pursuant to Section 10 of the Insolvency Code (IO), no judicial lien or right of satisfaction can be acquired on the assets belonging to the insolvency estate after the opening of insolvency proceedings due to a claim against the debtor.

Foreign arbitral awards are enforceable on the basis of bilateral or multilateral treaties that Austria has ratified. By far the most important convention for the enforcement of foreign arbitral awards is the New York Convention (NYC, NYÜ in Austria), which has 170 contracting states (as of October 2022), therefore, some of its provisions will be discussed in more detail below. 

The procedure for the enforcement of foreign arbitration awards is governed by sections 406 et seq. of the EO. However, due to its primacy of application, the NYC intervenes in this structure at various points. The enforcement of foreign arbitral awards in Austria therefore primarily results from a synopsis of the provisions of the EO and those of the NYC.

A prerequisite for a declaration of enforceability under the NYC is the existence of a foreign arbitral award. This must be sufficiently specific.

According to Art III NYC the recognition of foreign arbitral awards occurs ipso iure in Austria and therefore does not require any special procedure.

However, in order to be enforceable in Austria, foreign arbitration awards must first be declared enforceable. This gives them enforcement effect. The procedure requires an application by the enforcing creditor. This application for a declaration of enforceability can be combined with an application for an enforcement authorization.

According to Art IV NYC, a duly certified original of the arbitral award or a certified copy thereof as well as an original of the arbitration agreement or a certified copy thereof must be submitted together with the application for a declaration of enforceability. The parties do not have to submit a confirmation of the legal force and enforceability of the arbitral award. Pursuant to Section 614 para 2 EO, the original of the arbitration agreement or its certified copy only has to be submitted upon request of the court. 

If the arbitral award or the arbitration agreement is not drawn up in German, a translation certified by an official or sworn translator or a diplomatic or consular representative must be attached to the application for a declaration of enforceability. The arbitral award as well as the arbitration agreement, must be translated in full and not only in part.

The arbitral award can only be recognized or declared enforceable if there are no grounds for refusal. The obligor is responsible for asserting and proving the existence of a ground for refusal. Art V NYC stipulates certain grounds for refusal of recognition and enforcement of foreign arbitral awards and therefore supersedes Section 408 EO. The grounds for refusal of recognition and enforcement under Art V NYC are exhaustively regulated.