In June 2019, this article was published as part of the IR Global Virtual Round Table Series Disputes Working Group.

What injunctions are available in your jurisdiction in order to freeze assets. What is the legal process for enforcement and what expertise is required?

 

The main precondition for a party to ask the court for an injunction under Austrian law is that it can demonstrate that the enforcement of specific claims would be endangered if no interim measure was granted. When assessing the presence of endangerment, judges consider the behaviour and recent actions of the debtor as well as any specific circumstances of the case at hand.

 

Preliminary injunctions may be granted for securing pecuniary and non-pecuniary claims as well as disputed legal relations. The possible interim measures granted are stipulated by law and comprise judicial custody of physical assets, forced administration of real estates or prohibition of the sale or attachment of assets

Preliminary injunctions are granted or dismissed in expedited proceedings. The court may even refrain from hearing the opposing party, if the purpose of the preliminary measure was otherwise impeded. In practice, courts often allow opponent to submit a written statement, but set a very tight deadline. A lower standard of proof applies, so that parties only have to present plausible proof for their allegations.

 

What tools or treaties exist to aid discovery of assets, the successful granting of orders and recovery?

 

As of 18 January 2017, credi- tors domiciled within the EU can also apply for a European Account Preservation Order (EAPO) in order to secure claims. This interim measure is available before and after proceedings have been initiated or a judgment has been granted. The EAPO is directed at the seizure of bank accounts within the EU and is available for all kinds of pecuniary claims including claims relating to tort, delict and civil claims for damages or restitution that are based on an act giving rise to criminal proceedings.

Generally, the opposing party is neither informed about the creditor’s applica-  tion nor heard prior to the granting of the EAPO. The claimant has to provide suffi- cient evidence for the endangerment of the enforcement of the claim. If the creditor has not yet obtained a judgment, the competent court will have to decide within ten working days after the application has been filed. An EAPO issued in an EU Member State is automatically recognised in all other partic- ipating EU Member States.

 

 

What extra powers does a criminal prosecution provide in your jurisdiction, as opposed to a conventional civil procedure?

 

During ongoing criminal investiga- tions, the public prosecutor is entitled to apply various coercive measures necessary for the clarification of the facts and prosecution of the suspected crime. Above all, assets may be seized and preliminary injunctions may be issued.

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