Austria collection profile

 

Austria
       

Austria

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Complexity of collecting debt:

grading
notable High Very High Severe


Executive summary

  • The payment behaviour of domestic companies is good and the EU legal framework provides reliable tools when it comes to late payment issues.
  • The court system is overall efficient and reliable but pre-legal action conducted by specialists remains the most effective method of collecting debt.
  • Although Austrian insolvency law aims at rescuing companies to increase the chances of recovering debts, it provides no limitations as to how much of the debt may be written off in restructuration negotiations and it is rare for unsecured creditors to recover from insolvent debtors in practice.
 
General Information GENERAL INFORMATION arrow-transparent
 
Collection Practices COLLECTION PRACTICES arrow-transparent
Court Proceedings Court PROCEEDINGS arrow-transparent
 
Insolvency Proceedings INSOLVENCY PROCEEDINGS arrow-transparent
 
General Information 

GENERAL INFORMATION

Days Sales Outstanding (DSO)

The payment behavior of Austrian companies is very good. Payments in Austria take 35 days on average compared to 49 days for listed companies (2015 figures) and late payments (up to ten days) are reasonable.​

 

Late payment interest

Late payment interest may be claimed from the day following the due date. In fact, the Late Payment law which entered into force on March 1st, 2013 has transposed the Recast Directive on Late Payment 2011/7/EU which stipulates that payments in the EU must be made within 60 days, thus introducing a Fourth Book and an Eighth Chapter on Money Transfers (Achter Abschnitt Zahlungsverkehr) into the Commercial Code. The domestic rule is however stricter than the EU requirements: as a general rule, business-to-business transactions must be paid within 30 calendar days upon receipt of the invoice, and no payment terms should exceed 60 days. In addition, interest on late payment is to be calculated by adding at least 9,2 percentage points above the base lending rate (against 8 percentage points with the former regulation) set by the Oesterreichische National Bank. The applicable base lending rate is established on January first and July first for each half-year.

In line with the Recast Directive 2011/7/EU and according to §458 UGB, creditors are furthermore entitled to charge recovery costs (Inkassokosten) of EUR 40, but amounts would depend on the effective delays in obtaining payment. In practice, collection costs would normally be paid but their amount is regulated (gesetzliche Gebührenverordnung) under § 1333 ABGB which states that the “Inkassokosten” must proportionate.

 
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collection practice 

COLLECTIONS PRACTICES

Orchestrated negotiation first

Even though Austrian tribunals are efficient, amicable settlement opportunities and fast-track proceedings should first be considered as efficient alternatives to ordinary legal action. In addition, before starting legal proceedings against a debtor, assessing its assets is important as it allows verifying whether the company is still in activity and whether recovery chances are at best. In addition, it is essential to be aware of the debtor’s solvency status: if insolvency proceedings have been initiated, it indeed becomes impossible to enforce a debt (see below).

 
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Court Proceeding 

COURT PROCEEDINGS

A judgment becomes enforceable as soon as it becomes final (i.e. when appeals are not available anymore). If the debtor fails to comply with the decision, an application for enforcement may be filed with the District Court. Enforcement would then take place through attachment orders, garnishment orders, but also through the compulsory administration or the seizure and sale of the debtor's assets.

Fast-track procedures (Mahnverfahren) are first available when the debt is certain and undisputed (i.e. when the creditor may provide the court with a clear debt recognition title). When the claim does not exceed EUR 75,000 the creditor may request the local court to issue a Payment Order (bedingter Zahlungsbefehlt) instructing that the claim, including interest and court costs, must be paid within fourteen days. These proceedings are simplified and accelerated in the sense that claims may be submitted electronically at a reasonable cost. In addition, a lawyer is not necessary unless the claim exceeds EUR 5,000. If the defendant does not bring a defence (Einspruch erheben) within four weeks, the Order becomes enforceable immediately by a bailiff (gerichtsvollzieher). Otherwise, the case will be dealt with on its merits through an ordinary legal action. Similarly, ordinary proceedings must be conducted before the District Court when the claim exceeds EUR 75,000 (see below). When the debtor company has assets in other EU Member States, a European Payment Order procedure facilitating the recovery of undisputed debts (under Regulation EC No 1896/2006) may furthermore be triggered. In this case, the demanding party may request the Vienna Commercial Court to issue an Order to Pay which will then be enforceable in all European Union countries (except Denmark) without exequatur proceedings. If the amicable phase fails or if the debtor questions the claim, the option of starting legal proceedings remains. Provided that a final Demand (Anwaltsmahnung) has been served to the debtor, the creditor may file a claim with the court (Mahnklage). The parties are then invited to exchange views and evidence, the judge organizes hearings which the parties must attend, and renders a final judgement. Legal action before Austrian tribunals is fairly quick and reliable. Tribunals would usually order remedies in the form of specific performance (orders to deliver or perform), declaratory judgments (as to the validity of a contract for instance), but the courts cannot award punitive damages.

 
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insolvency Proceeding 

INSOLVENCY PROCEEDINGS

Insolvency in Austria is a matter of cash flow and balance sheet alike. Indeed, the Insolvency Law Amendment Act of 2010 (Insolvenzrechtsänderungsgesetz 2010 - IRÄG 2010, which created a uniform Insolvency Act known as Insolvenzordnung – IO) considers a debtor insolvent when it is illiquid, i.e. when it is permanently unable to pay its outstanding debts, but illiquidity may also be characterized when the debtor's assets cannot satisfy all the creditors Austrian Insolvency law essentially aims at restructuring the debt through an insolvency plan (Sanierungsplan). Failure of the debtor to file a petition for bankruptcy within 60 days following the occurrence of an insolvency situation constitutes a criminal offence entailing the director’s personal liability. Insolvency proceedings would normally commence as soon as the debtor is held insolvent (upon request of the creditors or of the debtor itself) through a Mahnschreiben. Once the proceedings are opened, the creditors must submit their claim to the court within a time period established by the court.

 
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