Costs of proceedings - Austria
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This page provides information on legal costs in Austria.
Regulatory framework governing fees of legal professions
Under the Austrian Lawyers’ Code, the fees to be paid for services provided can generally be freely agreed between clients.
The fee may be calculated at an hourly rate or may be agreed as a flat-rate fee. The flat-rate fee does not include individual services and time. In the absence of explicit agreements, it shall be assumed that an appropriate fee has been agreed.
The Code of Civil Procedure and the Lawyers’ Collective Law provide that, in civil proceedings, the court must determine in the decision on costs the proportion of the costs to be reimbursed by the unsuccessful party to the successful party. The costs shall be calculated on the basis of the value of the claim and the duration and nature of the service provided.
In criminal proceedings, any person (defendant*, private prosecutor*, civil party*) who has appointed a lawyer to represent him/her must also bear the resulting costs. This is also the case if the defence lawyer has been appointed ex officio, unless the conditions for granting legal aid are met. The costs regularly vary according to the court and the composition of the panel (e.g. district court, regional court with a single judge*, jury court, jury court).
The Enforcement Fees Act sets out the remuneration that bailiffs receive for their activities. In particular, the Act provides for an enforcement fee to be paid by the creditor when submitting the enforcement application, together with a flat-rate fee provided for in the Court Fees Act (GGG).
The enforcement fee (Section 2 of the Enforcement Fees Act)is part of the cost of an enforcement procedure. At the request of the creditor, the court may decide in the decision on costs that the enforcement fee is to be reimbursed by the debtor*.
The bailiff is also entitled to remuneration for receiving payments. This can be deducted from the amount operated (Section 11 of the Enforcement Fees Act).
Fixed costs in civil proceedings
Fixed costs for litigants in civil proceedings
The court fees payable for the services provided by the court are calculated either as flat-rate fees (fixed fees) or as a hundred (thousands) rate fees (percentage of the valuation basis). Their amount depends on the nature of the case, the value of the claim (which depends on the amount of the claim expressed in money) and the number of parties. In the case of more than two parties, a multi-party surcharge under § 19a GGG may be added (of 10-50 %).
When must the costs be paid in civil proceedings?
In civil proceedings at first instance, the flat-rate fee must be paid when the action is brought. The fee shall be payable only once, irrespective of the course of the proceedings at that instance, even if the action is directed against more than one claim and against more than one person. The flat-rate fee covers the entire procedure at first instance. If the head of claim is extended in the course of the proceedings, further fees may be payable. These must be paid at the time of the submission of the pleadings. If the form of order sought is extended during a hearing, the fees shall be payable from the beginning of the record. In the second and third instance, the fee is to be paid when the appeal is lodged (Section 2(1) of the Court Fees Act, GGG). As an exception, in non-contentious proceedings, a decision fee is sometimes payable instead of the appeal fee.
Costs in criminal proceedings
Costs for litigants in criminal proceedings
In principle, no court fees are payable in criminal proceedings. It is only in private prosecution proceedings that entry fees are due for applications for the initiation or continuation of criminal proceedings and for appeals and actions for annulment brought by the private prosecutor.
When must the costs be paid in the criminal proceedings?
Fixed fees must be paid upon submission of the entry triggering the fee.
Costs in proceedings before the Constitutional Court
Costs for litigants in the proceedings before the Constitutional Court
Under Section 17a(1) of the Verfassungsgerichtshofgesetz (Law on the Constitutional Court, VfGG), the fee is EUR 240.
When must the costs be paid in the proceedings before the Constitutional Court?
Fixed fees must be paid at the beginning of the procedure.
Information obligations of lawyers and lawyers
Rights and obligations of the parties
As a general rule, lawyers are obliged to inform their clients of how costs are calculated and what costs are to be expected. In this regard, Section 15(2) of the Guidelines on the practice of the profession of lawyer (RL-BA 2015) recommends that when a new contract is entered into, lawyers inform their clients about the basis for the calculation of the remuneration and the entitlement to an interim statement. If no flat-rate fee has been agreed, the client is entitled to request, at appropriate intervals, an interim financial statement or an interim report on the services already provided or the time taken to do so (if a calculation based on hourly fees has been agreed). Similarly, an agreement should be reached on the start and frequency of the interim settlement before the lawyer is appointed.
Where can you find out more about cost laws in Austria?
The legal provisions on reimbursement of costs in contentious civil proceedings (including commercial matters) are laid down in Sections 40-55 of the Code of Civil Procedure (ZPO). For non-contentious proceedings (e.g. family proceedings, in particular in cases of consensual divorce, custody, contact and maintenance disputes), different rules on reimbursement of costs apply. The general rules are laid down in Paragraph 78 of the Ausstreitgesetz (AußStrG).Exceptions apply, inter alia, in proceedings concerning the right of custody, the right of contact or maintenance of minor children. The costs of criminal proceedings are governed by Sections 380-395 of the Code of Criminal Procedure (StPO). The court fees (flat-rate fees) are regulated by the Court Fees Act (GGG).
A brochure summarising the lawyers’ fees is available online on the homepage of the Austrian Bar Association. General information can also be found via the inter-agency platform oesterreich.gv.at via the link: Life Topics > Documents and Law > Civil Law > Civil Procedure available.
This website, oesterreich.gv.at, provides general information on court fees. Legal texts (Jurisdictional Fees Act, Tariff Items) can be consulted free of charge via the link to the Federal Legal Information System on the website of the Federal Chancellery.
In which languages are the information on the cost laws in Austria available?
Where can you find out about mediation/arbitration?
A list of mediators maintained by the Federal Ministry of Justice is available on a dedicated website on mediation.
With regard to restorative justice in criminal proceedings, information on compensation (mediation between the accused and the victim) is available on the NEUSTART homepage. http://www.neustart.at/AT/de/Angebote_/_Service/Hilfe_fuer_Opfer/
Where can I find additional information about costs?
Online information on procedural costs
General information on the Austrian legal system, the costs and the Federal Ministry of Justice can be found on the Austrian Justice website and the website oesterreich.gv.at, which provides reader-friendly information.
The Federal Legal Information System provides the following legal texts:
- Court Fees Act (GGG)
- Fee Claims Act (GebAG)
- Bar Code (RAO)
- Lawyers’ Tariff Act (RATG)
The text of the general fee criteria (AHK) can be found onthe Austrian lawyers’ portal.
Where can I find information on the average length of time that different procedures take?
Please contact the Austrian Federal Ministry of Justice directly for this purpose.
Where can I find information on the average aggregate cost for a particular proceeding?
The court fees to be paid for each type of proceedings are fixed in advance (Court FeesAct). You can change at a higher or lower value. In civil proceedings, the court determines in the decision on costs which court fees and costs (lawyers‘fees, experts’ and interpreters‘fees or translators’ fees) are to be reimbursed by the unsuccessful party. This decision is based on the Lawyers’ Tariff Act (for fees for lawyers) and the Law on fees (for experts and interpreters and translators). These costs are largely based on expenses and time spent. It is therefore not possible to fix a precise amount in advance. The fees to be paid by clients to lawyers can in principle be freely agreed.
Where can information on VAT be found? What are the rates?
The services provided by lawyers are subject to turnover tax. It is 20 % in Austria. Like other expenses, lawyers must be remunerated separately in accordance with Section 16 of the Lawyers’ Tariff Act and Section 17 of the General Fee Criteria. Turnover tax is not included in the tariff headings in the Lawyers’ Tariff Act and in the general fee criteria.
Applicable income threshold in civil matters
Legal aid is not linked to statutory income limits. In civil matters (and in commercial matters), legal aid is governed by the Austrian Code of Civil Procedure. The provisions of the Code of Civil Procedure shall apply mutatis mutandis to non-contentious proceedings. The court of first instance shall decide on the aid to the proceedings.
Legal aid shall be granted to a party only if his income, financial circumstances and maintenance obligations are such that he is unable to meet the costs of legal proceedings without prejudice to the maintenance necessary to enable him to live easily. Legal aid shall not be granted if the intended legal action or defence appears manifestly frivolous or unproven. The court will decide in each case which of the benefits listed below will be granted.
In Austria, legal aid may include in particular:
- a temporary exemption from the payment of court fees, fees for witnesses, experts and interpreters, the cost of the necessary statements and of an*n curator*, as well as the cash expenses of the legal representative or lawyer appointed by the court;
- representation by a lawyer.
Within three years of the termination of the proceedings, a party may be required to reimburse all or part of the legal aid if its financial situation changes accordingly and it is able to make the corresponding payments without adversely affecting its necessary maintenance.
Applicable income threshold for defendants and victims of crime in criminal proceedings
There are no fixed income limits used to assess whether the defendant or the victim or private party of a crime is entitled to legal aid. The following guidelines are taken as a guide: Subsistence above the minimum subsistence level and below a reasonable level of subsistence. The minimum subsistence level is regularly re-assessed and indicated at the current level on the website of the Austrian judiciary. http://www.justiz.gv.at/
Conditions for granting legal aid to victims of crime
Where there is no right to legal assistance within the meaning of Section 66(2) of the Code of Criminal Procedure, private parties are entitled to legal aid or legal aid if:
- it is not possible to represent a lawyer without impairing the necessary maintenance (see the above comments on subsistence); and
- Representation by a lawyer is necessary in the interests of justice, in particular in the interests of proper enforcement of claims, in order to avoid subsequent civil proceedings.
Conditions for granting legal aid to defendants
In order for legal aid to be granted, it must be in the interests of justice, in particular in the interests of a proper defence, apart from the existence of the financial conditions.
In the interests of justice, it is in any event appropriate to provide a defence counsel if:
- There is a case of a necessary defence within the meaning of Section 61(1) of the Code of Criminal Procedure (see below) where the accused person is blind, deaf, dummy, otherwise obstructed or is not sufficiently familiar with the language of the court and is therefore unable to defend himself;
- for the appeal procedure;
- in the event of a difficult factual or legal situation.
In cases of necessary defence, an accused or accused person must be represented by an*n defence lawyer*. A case of necessary defence exists in the following cases (Section 61(1) of the Code of Criminal Procedure):
- if and for as long as he or she is in pre-trial detention (point 1);
- throughout the procedure for placement in an institution for mentally abnormal offenders (point 2);
- in the main proceedings for placement in an institution for legal offenders in need of weaning or in an institution for dangerous recidivism (point 3);
- in the main proceedings before the Regional Court as a jury or jury court (Z 4),
- in the main proceedings before the Regional Court as a single judge*, if the offence is punishable by a term of imprisonment of more than three years, except in cases of burglary theft pursuant to Section 129(2)(1) of the Criminal Code and handling pursuant to Section 164(4) of the Criminal Code (No 5),
- inter partes examination (Paragraph 165), in so far as the main proceedings under Nos 3 to 5 involve the necessary defence (Paragraph 5a),
- on appeal against a judgment of the jury or jury (paragraph 6);
- when an application for renewal of the criminal proceedings is made and at the public hearing thereon (point 7);
In criminal proceedings, victims of violence, dangerous threats or sexual offences, terrorist offences or offences which may have exploited their personal dependence, as well as the spouse, registered partner*, partner, partner, relatives in the straight line, brother or sister of a person, or other dependants whose death may have been caused by a criminal offence, or other relatives’ rights to free legal proceedings, are entitled to legal protection and free legal proceedings. In any event, victims who may have been harmed in their sexual integrity and who have not yet reached the age of 14 shall be granted free legal assistance, even without request. Psychosocial support includes the preparation of the persons concerned for the process and the emotional pressures associated with it. Psychosocial and legal assistance is provided by victim support organisations contracted by the Federal Ministry of Justice in accordance with Section 66(2) of the Code of Criminal Procedure.
In non-contentious proceedings, no fees shall be charged for proceedings for the appointment of an adult representative or in matters of custody. There are also no fees for proceedings under the Accommodation Act or the Residence of Housing Act. Legal aid may be granted in the form of a temporary exemption from fees where the income is low in relation to the fees payable. The degree of exemption depends on the request and is at the discretion of the court.
When does the unsuccessful party have to pay the successful party’s costs?
The Austrian Code of Civil Procedure (ZPO) regulates costs in civil proceedings (including commercial matters). The ZPO provides that, in principle, each party must bear the costs which it has incurred in the first instance. Costs incurred jointly shall, for the time being, be borne jointly. When the General Court gives a decision on the case, it shall also make a decision on costs. This is done on the basis of the principle of success. The party that loses the dispute on any point must reimburse the other party for all fees and expenses necessary for the proper prosecution or defence of the case. Where each party succeeds on some and fails on other heads, the costs shall be set aside or apportioned.
Derogation from the principle of success is provided for, in particular, in the following cases:
- in the case of a minor failure, where the rejected part of the action did not give rise to any particular costs
- where the amount of the claim is determined by experts or is at the discretion of the court or tribunal and in the case of reciprocal settlement
- if the defendant’s conduct did not give rise to the claim and the defendant accepted the claim at the first opportunity;
- if the reason for cancelling the proceedings or declaring them null and void lies with one of the parties, the latter may be ordered to pay all the costs.
Family matters (maintenance, right of contact, right of custody and divorce by mutual consent) are dealt with as non-contentious proceedings. Paragraph 78 of the Ausstreitgesetz (AußStrG) lays down the general rules on costs for those proceedings. Many procedures are exempted from these rules. Here too, the principle of performance liability is normally applied, but this can be abandoned on grounds of equity.If no reimbursement has been requested, cash expenses (e.g. expert fees) must be paid in proportion to the proportion of the item. If the ratio cannot be determined, they shall be shared equally.
Information on the different types of proceedings (maintenance, contact, custody and divorce proceedings):
- In divorce proceedings, a distinction must be made between an adversarial divorce and a consensual divorce.
Divorce at issue: Specific provisions of the Austrian Code of Civil Procedure apply here. If none of the parties is responsible for the breakdown of the marriage, the costs shall be cancelled against each other. If the divorce is divorced on the basis of a dissolution and the divorce judgment contains a pronouncement of fault in the dissolution, the innocent spouse shall be liable for payment of the costs to the other spouse.
Consensual divorce: The rules of non-contentious proceedings shall apply to the divorce by mutual consent. In that case, the spouses shall submit two identical claims to the court. Since the proceedings are not in dispute, no decision on costs will be taken. Cash expenses must be borne equally by the parties.
- Custody and contact procedures are also non-contentious proceedings. On the basis of an exception clause (Paragraph 107(5) of the AußStrG), there is no reimbursement of costs in these proceedings.
- A further exception clause (Paragraph 101(2) of the AußStrG) provides that no reimbursement of costs is to be made in proceedings relating to maintenance claims of a minor child.
Any person who, in criminal proceedings, has a defence lawyer* or another representative* must also pay the costs of such representation, even if he or she is accompanied by a representative*of his or her own motion (Section 393(1) of the Code of Criminal Procedure).
In the event of a conviction, the defendant must also be required to reimburse the costs of the criminal proceedings (Section 389(1) of the Code of Criminal Procedure). Under Section 381(1) of the Code of Criminal Procedure, the following costs may be incurred in criminal proceedings:
- a lump sum as a proportion of the costs of the criminal proceedings, which are not further detailed below, including the costs of investigations and the execution of orders issued by the public prosecutor’s office or the court, necessary official acts. The flat-rate contribution is to be calculated between EUR 500 and EUR 10 000 in the proceedings before the Landesgericht in its capacity as jury court, between EUR 250 and EUR 5 000 in the proceedings before the Landesgericht in its capacity as jury court, between EUR 150 and EUR 3 000, and between EUR 50 and EUR 1 000 in the proceedings before the Bezirksgericht.
- experts‘fees and, in principle, interpreters’ fees,
- remuneration for information, findings and opinions provided by public authorities;
- the costs of transferring the defendant/defendant from another State and the costs of the witnesses summoned from abroad,
- the costs of seizure, access to bank accounts, seizure of letters, communication data and surveillance of communications,
- the costs of enforcing the sentence, including the costs of transferring prisoners to the domestic or foreign prison system, with the exception of the costs of executing a custodial sentence;
- the court fees payable in criminal proceedings;
- the costs of defence lawyers and other representatives,
- a lump sum as a proportion of the costs of the assistance to the process up to EUR 1000.
With the exception of the costs referred to in points 3, 7 to 9, these costs shall be advanced by the Federal Government. When calculating the lump sum pursuant to paragraph 1(9), the court shall take into account the economic capacity of the person liable for payment. The costs of providing an interpreter do not form part of the costs to be reimbursed by the defendant.
However, under Section 391(1) of the Code of Criminal Procedure, the costs of criminal proceedings are to be recovered from the convicted person or persons only in so far as they do not jeopardise the maintenance of the convicted person or persons and their family, which is necessary for a simple way of living, or the fulfilment of the obligation to make reparation for the damage caused by the offence. If the costs cannot be recovered due to the lack of resources of the convicted person, the court may declare them irrecoverable. If the court assumes that the currently irrecoverable costs can be recovered in the future, the economic capacity of the person concerned will be re-assessed after a certain period of time. Five years after the decision in the proceedings has been taken, the claim for costs shall be time-barred. If the court decides that the convicted person is to bear the costs and it subsequently turns out that he or she is unable to do so, the authorities may modify the time limit for payment, allow payment by instalments or reduce costs.
If, as a result of the decision of the criminal court, the sentenced person has been ordered to pay at least partial compensation to the person concerned, he must also pay the costs of the criminal proceedings incurred by the person concerned.
Under Section 393a of the Code of Criminal Procedure, an accused person who is acquitted may apply to the Federal Government for a contribution towards the costs of his defence. The contribution shall include the necessary and actually paid cash expenses and a flat-rate contribution to the costs of the defence counsel. The flat-rate contribution shall be set taking into account the scale and difficulty of the defence and the extent to which the defence counsel is required or fit for purpose and shall not exceed: in the proceedings before the Regional Court as a jury court, EUR 10 000 in the proceedings before the Regional Court as a jury court, EUR 5 000 in the proceedings before the Regional Court, EUR 3 000 in the proceedings before the single judge of the Regional Court and EUR 1 000 in the proceedings before the District Court.
If an accused person is acquitted pursuant to Section 72 of the Code of Criminal Procedure (subsidia situation) on the basis of a private prosecution or the indictment of a civil party, the private prosecutor must pay all the costs incurred as a result of their indictment or maintenance. In the event of the criminal proceedings being discharged in a secondary manner (Sections 198 to 209 of the Code of Criminal Procedure), the party concerned does not have to bear any costs.
Reimbursement of experts
In contentious civil proceedings (including commercial proceedings), the expert’s fees are cancelled or proportionally shared, depending on the existence or success of the case (Section 43(1) of the Code of Civil Procedure).
In the disputed divorce proceedings without pronouncing fault in the divorce judgment, the cash expenses are cancelled against each other. If one party has paid more than half of the costs, the other party has to pay the overpaid part. If the divorce judgment reveals fault on the part of one of the parties, the other party must reimburse the expert’s expenses.
In the following procedures, the fees for experts initially taken over by the public authorities must be reimbursed by the parties who caused the costs or whose interests the fees were incurred: consensual divorce, custody and contact rights, maintenance claim for minor children. If several persons are obliged to reimburse fees, they are jointly and severally liable (Section 1(5) of the Judicial Transfer Act (JIT) in conjunction with Section 2(1) of the GEG).
The level of expert fees is regulated by the Fee Claims Act (GebAG). It depends, in each case, on the content and scope of the report requested by the Court.
In criminal proceedings, the expert fees are part of the costs of the criminal proceedings (Section 381(1)(2) of the Code of Criminal Procedure) which are payable by the sentenced person in accordance with Section 389(1) of the Code of Criminal Procedure. Experts’ fees are set by the court or public prosecutor and advanced by the Federal Government.
Translators‘and interpreters’ fees
The above also applies to the remuneration of translators and interpreters.
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Last update: 10/08/2020