- within Media, Telecoms, IT and Entertainment topic(s)
When a court orders the production of accounting records, non-compliance is not a trivial matter. Defendants risk heavy fines — up to EUR 100,000 per application — and, in the worst case, imprisonment.
Austria is not a discovery-heavy jurisdiction. You don't get to rummage through your opponents' internal documents. Nevertheless, in cases in which plaintiffs can demonstrate a clear right to information courts may issue performance orders requiring disclosure of records — often accounting data over defined periods. For example,
- in IP disputes, the victim has a right to information on the infringer's turnover in order to calculate the amount of damages,
- in contractual relationships, such as brokerage or trust relationships, the principle regularly entitled to records regarding revenue or the administration of the entrusted property,
- in divorce cases, a spouse is entitled to disclosure of the other's accounts as a basis for calculation of maintenance claims.
To facilitate such claims, the Austrian Civil Procedural Code even provides a tailored two-step mechanism — the Stufenklage — which first compels production of records, and then allows the plaintiff to specify the monetary claim based on what those records reveal.
Obtaining the order is, however, only half the battle. Defendants will often resist, and enforcement becomes a contest.
A Recent Supreme Court Case
In a recent decision (3 Ob 113/25a), the Supreme Court dealt with a hotel and bar featuring exotic dance performances that had unlawfully used the plaintiff's name. The court ordered the defendant to disclose detailed accounting records for a specific period.
The defendant delivered only outgoing invoices — but withheld incoming invoices, records of ticket sales and prices, turnover from rooms, bar, and performances, as well as card payment records. It argued, via an Oppositionsklage, that it had complied and that no further records existed.
The Supreme Court was unsympathetic. It took astrict approach:
- Compliance means producing exactly what the award specifies.
- No second bite: Arguments that records are "unsuitable" are irrelevant at the enforcement stage.
- Inference isn't enough: It doesn't matter if the missing data can be inferred.
- Impossibility is narrow. It only works if new circumstances make production genuinely impossible.
Key Takeaway
For creditors: enforcement is a potent weapon. Courts will back you with escalating fines (up to EUR 100,000 per application) — and even jail time for persistent non-compliance.
For debtors: Once a performance order is granted, your room for manoeuvre is extremely limited. Unless new circumstances arise post-judgment, the debtor must deliver every document listed in the award — or face serious sanctions.
The lesson is clear: in Austria, when a court says "produce the records," the only safe response is to produce them.
https://www.linkedin.com/company/knoetzl/
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
