TerraLex Cross-Border Guide to Guide to Tracing Assets Around the World

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Yes, there are various publicly accessible registers containing information about assets:

The Austrian land register (Grundbuch) records various information on real estate and its owners. The land register is kept by the district courts (Bezirksgerichte) and open to the public. The data from the register is also provided in electronic form and a search in the register can be conducted via the platforms of a range of different service providers, e.g. here: Land Register Query.

The Austrian companies register (Firmenbuch) contains essential information about companies registered therin, such as the company's registered office, ownership structure (shareholders), power of representation and articles of association. Certain types of companies, like Austrian limited liability companies (GmbH), stock companies (AG), Partnerships (OG, KG) and cooperatives (Genossenschaften) are required to register, while others may be registered on a voluntary basis. In addition, limited liability companies and stock companies must also submit their annual financial statement to the Austrian companies register; large stock companies must publish their annual financial statements online on the federal government's electronic disclosure and information platform (“EVI”), see here: Business Register Query and/or EVI.

As mentioned before, the holder of assets registered in publicly accessible registers, such as the land register and the compa- nies register, can be identified by searching these registers.

There is also the Register of Beneficial Owners (wirtschaftliches Eigentümer Register), which contains information regarding beneficial owners of companies, foundations and trusts but which is not publicly available but can only be accessed by certain authorities and companies required to apply due diligence to prevent money laundering and terrorist financing, including however, Austrian lawyers.

Apart from this, as to the identification of assets in the sense of a disclosure of a counterparty's assets not limited to land property and share in a company, only limited instruments are available under Austrian law.

Towards third parties: In the course of enforcement proceedings, which can be ini- tiated only on the basis of an enforceable judgement, the competent court can issue a third party debtor request (Drittschuldneranfrage) on the public social security carrier, who has to provide information on whether third party debtors exist and the names of such third party debtors. Subsequently the court can order a prohibition of disposal and/or payment (Verfügungsverbot, Zahlungsverbot), according to which the third party is obliged not to make any payments to the respondent.

Within four weeks of the delivery of the prohibition of payment, the third party has to submit a third party debtor declaration (Drittschuldnererklärung) which includes information on the seized debt (e.g. existence of the claim, conditionality, assignment by the debtor) (see Section 370 of the Austrian Code on Enforcement Rules (Exekutionsordnung)).

Towards the adverse party: In the course of enforcement proceedings the adverse party is, pursuant to Section 306 of the Austrian Code on Enforcement Rules, obliged to disclose all necessary information regarding his assets to the court and the applicant.

Pursuant to Sec. 370 Austrian Code on Enforcement Rules, the applicant has the possibility to secure his claim before a judgement becomes enforceable or before the payment deadline expires by means of a provision- al enforcement (Exekution zur Sicherstellung). The means of seizure are:

• seizure and safekeeping of movable property;
• pre-registration of the lien on real estate or rights attached thereto in the land register;
• receivership of movable and immovable property;
• seizure of claims.

Pursuant to Sec. 379 Austrian Code on Enforcement Rules, an interim injunction (einstweilige Verfügung) can be obtained to secure pecuniary claims:

• if enforcement measures cannot be obtained against the opponent's assets;
• if it is likely that, without such measures, the opponent of the party at risk would thwart or significantly impede the recovery of the monetary claim by damaging, destroying, concealing, or removing assets, by selling or otherwise disposing of assets, in particular by entering into agreements with third parties;
• if the decision would have to be enforced in countries where the enforcement of the claim is not guaranteed by international treaties or Union law.

The means of injunction are:

1. the custody and administration of movable tangible property belonging to the opposing party of the party at risk (Section 259 et seq.), including the deposit of money;
2. a court injunction prohibiting the sale or pledging of movable tangible property, with the effect that any sale or pledging in contravention of the injunction is invalid, unless the purchaser is protected by the analogous application of Sections 367 and 456 a.b.G.B. or by the provisions of Articles 306 and 307 of the Commercial Code;
3. a court order prohibiting third parties from acting if the opponent of the party at risk has a monetary claim or a claim for performance or surrender of other property against a third party. This prohibition is enforced by prohibiting the opponent of the endangered party from disposing of the claim, in particular from collecting it, and by ordering the third party not to pay the amount owed to the opponent of the endangered party until further court order and not to hand over the items owed to the latter or otherwise take any action in respect of them that could thwart or significantly impede the enforcement of the monetary claim or the items owed or to be surrendered;
4. the administration of real estate belonging to the opponent of the endangered party;
5. the prohibition of the sale and encumbrance of real estate or registered rights of the opponent of the endangered party.

There exists no common law freezing injunction under Austrian law.

To obtain a provisional enforcement or an interim injunction, the applicant is in most cases obliged to credibly demonstrate that without these measurers the recovery of the monetary claim would be frustrated or considerably impeded.

See Question 3. Any movable or immovable assets can be frozen. There is a list of unseizable claims in Sec. 290 Austrian Code on Enforcement Rules.

Generally, an Austrian court has jurisdiction if the respective asset is located in the court´s district.

There exists no search order under Austrian law as part of a freezing injunction. However, the bailiff has the authority to take the necessary measures to enforce the freezing injunction.

An Austrian court can have jurisdiction over a provisional enforcement or an interim injunction, even if the courts of another country have jurisdiction as to the substance of the matter. Within the scope of application of the Brussel I Regulation, only provisional measures from a court, which has jurisdiction as to the substance of the matter, are immediately recognised and executed.

An interim account attachment order (vorläufiger Kontenpfändungsbeschluss) allows a court in a Member State of the EU to freeze a debtor´s bank account in another EU Member State. The interim account attachment order can be exercised before proceedings against the respondent have started or in the course of proceedings.

Yes, but interim injunctions or provisional enforcements from a non-EU member state in general require exequatur, an application for acceptance of the foreign court’s decision. Though enforcement may be eased if bilateral or multilateral treaties dispenses from the formal requirement of an exequatur proceeding.