Austrian Supreme Court: Right to Copy of Rulings for Interveners

Sept 16, 2022 Benn-Ibler Rechtsanwälte GmbH

If an intervener declares their intervention within the appeal deadline applicable to the main party, the intervener shall be entitled to the issuing of a copy of the ruling. Also, the intervening party shall be entitled to a separate deadline for appeal provided that the intervening party has not already been rejected in the preliminary examination proceedings. This deadline shall even be granted if the notice of intervention is served only after the expiry of the time limit for appeal of the principal party and the principal party has filed an appeal within the time limit.

The defendant is co-owner of a piece of real estate. She had the attic remodelled, partly by herself and partly by the intervening party. The plaintiff filed a claim for damages against the defendant because the remodelling work carried out by the defendant was deemed to be deficient. The intervening party joined the action on the defendant's side. However, the court did not serve a copy of the ruling of the first instance on the intervener. The notice of intervention was served so late that the deadline for the defendant to appeal had already expired. The appeals court decided on the defendant's appeal without serving the first-instance judgment.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) considered thus:

Pursuant to Section 18 of the Code of Civil Procedure (Zivilprozessordnung, ZPO), intervening parties may file a notice of appeal at any stage of the litigation process up to its final decision and the writ being served on both parties to the litigation. Older case law held that the appeal of an intervening party was considered to be out of time if the notice of appeal was served on the opposing party only after the expiry of the time limit for appeal. The Austrian Supreme Court has now abandoned this approach.

After referring to existing case law and legal doctrine, the Supreme Court agreed that a declaration of accession after the expiry of the deadline for the main party does not lead to the delivery of the contested decision to the intervening party, thus giving rise to a separate time limit for appeal.

However, if an intervening party declares their intervention within the time limit for appeal of the main party, the intervener shall be entitled to a copy of the judgment. Also, interveners shall be entitled to a time limit for appeal unless their intervention has already been rejected in the preliminary examination proceedings. This shall also apply if the notice of intervention is served only after the expiry of the appeal deadline for the main party and the main party did lodge an appeal in due time.

OGH 5 Ob 61/22i (19 July 2022)