Austria - Attachment of Assets
Dr. Florian Kremslehner, Dorda Brugger Jordis
Originally from Attachment of Assets
1.a) What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgements to be obtained (“attachments”)?
Creditors may apply for interim orders (Einstweilige Verfügung) to obtain provisional relief. Such orders are to impede the frustration or delay of future enforcement proceedings, i.e., to secure a certain claim, be it of pecuniary or other nature. Depending on the nature of the claim to be secured there are two main categories of interim orders by which assets of debtors may be attached:
• interim orders to secure a pecuniary claim (section 379 of the Austrian Enforcement Act), and
• interim orders to secure a personal claim (s. 381 item 1 of the Act).
Apart from such orders, it is possible to secure a claim on the basis of a judgement issued by a court of first or higher instance which has not yet become enforceable (“Exekution zur Sicherstellung”) according to section 370 of the Act. This measure is not a provisional relief, but already a measure to enforce a judgement.
1.b) Freezing Property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshal?
Section 379 sub-section 3, and section 382 sub-section 1 Enforcement Act respectively provide for measures a court can impose in an interim order. Amongst other possibilities, the court can issue orders in one of the following forms:
• The court may order that moveable, tangible goods as well as negotiable instruments be placed in the custody of a court official or a sequester appointed by the court.