A distinction must be made here between the absolute and the relative obligation to be represented by a lawyer. The difference is that in the case of an absolute obligation to be represented, the party must be represented by a lawyer, whereas in the case of a relative obligation, representation is not mandatory. If the party is nevertheless represented in the case of a relative obligation, this may only be done by a lawyer.
Absolute obligations of representation exist, for example:
- In appeal proceedings
- In the proceedings before the courts of first instance as well as before the OLG and OGH
- In district court proceedings, if the amount in dispute exceeds EUR 5,000 (exceptions e.g. in proceedings where the district courts have inherent jurisdiction or also in labor and social law cases)
However, there are also some factual and personal exceptions to the absolute duty of representation. For example, there is no such obligation for arbitration proceedings. Persons with legal expertise (e.g. judges, lawyers, notaries) are also exempt from the absolute obligation to be represented, but must be represented by a lawyer if they are represented – i.e. they are subject to a relative obligation to be represented.
Relative duties exists in matrimonial matters as well as in district court proceedings in matters where the amount in dispute exceeds EUR 5,000, but which are exempt from an absolute duty.
