Austrian Court on Reimbursement of Representatives’ Costs

Apr 5, 2024 Benn-Ibler Rechtsanwälte

The Oberlandesgericht (Higher Regional Court) of the Austrian city of Graz has dealt with an appointed representative’s claims for reimbursement of costs. Even if an appointed representative is a lawyer themself, they may be represented by another lawyer in the course of the proceedings, and in cases where representation by a lawyer is not required, the appointed representative is entitled to reimbursement of their legal costs.

The plaintiff in the case at hand had been employed by the defendant as a delivery driver and sought to recover the remaining remuneration due to him under his employment contract. As the defendant could not be served with the order to pay, a notary public was appointed as a representative pursuant to Section 116 of the Austrian Code of Civil Procedure (Zivilprozessordnung, hereinafter ZPO).

The appointed representative was represented by a lawyer during the entire proceedings. On 4 April 2023, after the representative had found an address at which service could be made on the defendant, she filed an application with the court of first instance for her removal from office.

In May, the notary again applied for her removal as representative for service of process, as the defendant had appointed and authorised a representative for the proceedings. She also claimed costs of approximately EUR 1,200.

The application for costs was dismissed by the court of first instance. The court of appeal reasoned as follows:

As a general rule, an appointed representative can claim the costs of their notice and appointment from both from the opposing party (Section 118 (2) ZPO) and from the representee (Section 117 (1) ZPO). The costs shall include all expenses incurred by the appointed representative for the proper conduct of the proceedings. Any claim for reimbursement of costs shall be decided by the court.

The first application for removal was inappropriate because an appointed representative cannot be removed once the whereabouts of the representee are known. The representative can only be removed if the representee appears in court themself or appoints another authorised representative. Consequently, these costs are not eligible for compensation.

The request for the determination of costs is to be considered equivalent to the preparation of a lawyer's fee note and is therefore also not eligible for compensation pursuant to Section 18 RATG (Rechtsanwaltstarifgesetz, Lawyers’ Fee Act).

OLG Graz 7 Ra 32/23i (4 March 2024)