The 2023 Amendment to the Austrian Code of Civil Procedure: What’s New?

On 14 July 2023, amendments to the Austrian Code of Civil Procedure (Zivilprozessordnung, ACCP) entered into force. During the COVID-19 pandemic, laws had been introduced that temporarily allowed for remote hearings and evidence-taking under certain circumstances. These temporary provisions expired on 30 June 2023. Now, the Austrian legislature has adopted permanent versions of the COVID-19 era rules, albeit in a more limited form.
Below, the most notable changes to the ACCP are outlined. Readers should note that the 2023 amendments are not limited to the ACCP but include the Non-Contentious Proceedings Act (Außerstreitgesetz), the Commitment Act (Unterbringungsgesetz), the Enforcement Act (Exekutionsordnung), and others. The focus of this article will be exclusively on the ACCP.

Remote Hearings

With the newly introduced Section 132a (1) ACCP, the legislature intends to create the possibility for remote (or hybrid) hearings to be held in civil proceedings.
The court may allow all or some participants of a civil proceeding to participate in a hearing remotely. This possibility, however, is limited: The court has discretion on whether to allow remote participation, whereby it must consider procedural economy and the available technical facilities. Furthermore, before allowing a remote hearing, the court must either have the express approval of all parties or must announce the remote hearing while granting the parties the possibility to object within a certain time period. If any party objects in a timely manner, holding a remote hearing is not permitted. Parties do not have a right to request the court to conduct a hearing remotely; they may only suggest that the court do so.
By limiting the possibility for remote hearings to be held, the legislature intends for these to remain the exception rather than the norm. In particular, the reference to the procedural economy as a statutory requirement to hold a remote hearing is notable. The legislative materials make clear that procedural economy speaks for a remote hearing when it would be possible to, for example, set an earlier hearing date, avoid a postponement, or reduce the costs of the proceedings because of less travel to the court.
Even during a remote hearing, the judge must be present in the courtroom.

Virtual Taking of Evidence

Before the 2023 revisions and even before the COVID-19 pandemic, the virtual taking of evidence was possible in Austrian civil proceedings pursuant to Section 277 ACCP. This provision states that the court shall, subject to the technical possibilities, conduct the taking of evidence (examination of parties, witnesses, and experts) using technical equipment (i.e., video conferencing) instead of hearing evidence through a judge by way of mutual legal assistance (Rechtshilfevernehmung) unless the hearing through mutual legal assistance is more expedient taking into account the procedural economy or is necessary for special reasons. Thus, for a judge to make use of Section 277 ACCP, it is a statutory requirement that the taking of evidence by technical means be conducted as a substitute for using mutual legal assistance.
Section 277 ACCP has remained intact. In addition, the legislature has now introduced the possibility to take evidence by technical means even without the requirements of Section 277 ACCP being met in the following scenarios:
• For expert witnesses to discuss their expert reports, and
• For the parties and “informed persons” to be examined during preparatory hearings.
The rationale behind allowing “informed persons” to be examined remotely during preparatory hearings is the following: In Austrian civil proceedings, preparatory hearings are intended for the parties to present the facts and claims, for the court to discuss the facts and legal arguments, and for the parties to attempt to settle the case. Sometimes, evidence is also taken during these hearings. If, in cases where a party does not have the necessary knowledge of the subject matter of the proceedings, an informed person (such as a staff member) attends the preparatory hearing, it may be necessary to hear this informed person as a witness.

Settlements

Section 132a (3) ACCP regulates the procedure for concluding a settlement during a remote hearing and aims to ensure that concluding a settlement during such a hearing remains possible.
The court has various possibilities to ensure that the parties are aware of the exact conditions of the settlement. Section 132a (3) ACCP states that the court shall either 1) make the text of the settlement visible to the parties on the screen, 2) clearly read out the text of the settlement, or 3) play back the text of the settlement recorded on a sound carrier for all to clearly hear. The will of a party that is not present in person to conclude the settlement must be clearly expressed, taking into account the technical circumstances. Parties physically present in the hearing room are still required to sign the settlement.
Section 132a (3) ACCP mirrors the provisions adopted during COVID-19.

Conclusion

The legislature’s intention to permanently adopt rules on remote hearings and remote taking of evidence should generally be welcomed. As is recognized in the legislative materials, conducting remote hearings can and often does benefit procedural economy. While the Austrian COVID-19 era rules were quite far-reaching in this regard, those rules were merely temporary. The 2023 revisions ensure that remote hearings will remain a feature in Austrian civil litigation.
Nevertheless, it is important to be aware that the possibility to use remote hearings, including for the taking of evidence, has been curtailed. In particular, one must distinguish between hearings and the taking of evidence: the former can, in principle, always be held remotely (if the statutory requirements are satisfied); the latter is possible remotely, as explained above, only to a limited extent. It remains to be seen how frequently the newly introduced provisions will be made use of in practice and whether, in the future, the Austrian legislature will further expand the use of virtual hearing technology.

Resources

BGBl I 2023/77 from 19 July 2023.
ErlRV 2093 BlgNR 27. GP, p. 1.
ErlRV 2093 BlgNR 27. GP, p. 4.
ErlRV 2093 BlgNR 27. GP, p. 4.
Rechberger in Fasching/Konecny3 III/1 § 277 ZPO Rz 2 (Stand 1.8.2017, rdb.at).
ErlRV 2093 BlgNR 27. GP, p. 2.