Austria
Austrian law essentially provides three categories of interim (or temporary) relief measures:
- preventive measures, which are granted to secure the enforceability of an eventual judgment and may involve freezing a particular state of affairs or assets;
- regulatory measures, which are granted to regulate a temporary state of affairs; and
- performance measures, which provide a temporary performance of an alleged obligation.
However, this categorisation is of little practical importance. Despite specific provisions in certain legislation such as the Patent Act, the Copyright Act or the Trademark Act, interim relief measures are principally regulated by the Enforcement Act (Exekutionsordnung), which distinguishes between:
- execution for security; and
- interim injunctions.
Execution for security refers to the execution of an interim measure on the condition that the applicant pays security into court covering any potential damages to the respondent. To grant execution for security:
- the court must have issued an existing judgment, which will be the basis for execution;
- the claim must be a monetary claim; and
- the court must be convinced that:
- without the execution for security, the enforcement of the monetary claim would be thwarted or considerably impeded; or
- the judgment would most likely need to be enforced in states or another foreign jurisdiction in which the enforcement of the claim is not guaranteed either by international treaties or by Union law.
Interim injunctions are types of preventive measures granted to ensure immediate legal protection before, during or after trial. There are three types of interim relief injunctions, namely those for the purpose of securing:
- monetary claims;
- other claims; and
- a right or a legal relationship.
For further detail on interim injunctions, see below section on Prejudgment attachments and freezing orders.
Injunctive relief proceedings are commenced when one of the parties applies for injunctive relief at:
- the court where the substantive proceedings are pending; or
- where an injunctive measure is sought prior to the commencement of substantive proceedings, the District Court of the domicile (Allgemeiner Gerichtsstand) of the defendant.
The application will usually be accompanied by supporting evidence (evidence may be merely cited in the application but parties generally enclose it to avoid any delay in having to provide it subsequently). In specialized legal matters (family law disputes, labor and social law disputes, etc.), interim proceedings may also be initiated and granted ex officio.
For injunctive relief to be granted, the applicant must demonstrate that:
- it has a prima facie claim, and for this purpose, the applicant will need to (i) include precise allegations regarding their claim in the application; or (ii) where the application and the lawsuit are filed at the same time, refer to such precise allegations in the main lawsuit; and
- their claim risks being frustrated if no injunctive relief is granted by the court.
If the court considers that (i) the above requirements (along with other formalities) are satisfied; and (ii) granting injunctive relief would (a) be proportionate; and (b) not result in an irreversible state of affairs, the court will order the injunctive relief sought by the applicant. Further, the court may order that injunctive relief is made conditional on the applicant's payment of security into court.
The procedure for issuing injunctive relief is not public and, in principle (unless the claim relates to civil rights), will be conducted without hearing the opposing party. However, as the opposing party has the right to object to the court's decision once the injunction has been granted, the court will usually serve the application on the opposing party in order to avoid a subsequent opposition (provided that notice will not lead to a delay likely to defeat the purpose of the injunction). If notice has been given, the opposing party may reply to the application within a short deadline set by the court (usually ranging between three days to two weeks).
Generally, injunctive relief is granted within one week of the application, although in relation to urgent matters, the court can grant interim relief within two or three days.
The respondent can appeal against decisions of the court within fourteen days after the service of the order granting the interim measure. In general, interim measures do not have suspensive effect unless specifically granted by the court.
The costs of interim relief proceedings have to be advanced by the applicant. However, the applicant may be reimbursed for such costs by the opposing party if the applicant is successful in the main proceedings.
In certain circumstances, usually when the amount in dispute exceeds EUR5,000, legal representation is mandatory. If represented by an attorney, the application for injunctive relief must be submitted to the court in writing. Otherwise, the application may be made orally, and a transcript will be taken.