General Administrative Procedure Act 1991

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Basic data
Title: General Administrative Procedure Act 1991
Abbreviation: AVG, AVG 1991
Type: Federal law
Scope: Republic of Austria
Legal matter: Administrative procedural law
Reference: Federal Law Gazette No. 51/1991
Effective date: February 1, 1991
Last change: Federal Law Gazette I No. 58/2018
Please note the note on the applicable legal version !

The General Administrative Procedure Act 1991 (AVG) regulates the procedure of almost all administrative authorities in Austria . Separate procedural regulations exist in particular for administrative criminal law ( Administrative Penal Act ), the agricultural authorities ( Agricultural Procedure Act ) and the service authorities in the public service (Service Law Procedure Act), which in turn refer to the AVG to a large extent. The tax authorities, on the other hand, have to handle their procedures according to completely different regulations, namely according to the Federal Tax Code .

historical development

The AVG was first enacted in 1925 ( Federal Law Gazette No. 274/1925) and was a milestone at the time, as the administrative procedure was previously only regulated in the relevant laws, which was felt to be quite unsatisfactory.

After several amendments, it was first published again in 1950 ( BGBl. No. 172/1950 ) and finally in 1991 (BGBl. No. 51/1991).

Until December 31, 2013, the AVG contained special provisions in Sections 67a-67h for the procedure before the Independent Administrative Senates . With the abolition of the UVS and the establishment of the regional administrative courts on January 1, 2014, this section was repealed. The procedure before the administrative courts is regulated in a separate Administrative Court Procedure Act. It should be noted that since then the 1st section of Part IV of the AVG only applies to proceedings in matters within the municipality's own sphere of activity. A complaint to the Federal Administrative Court or a regional administrative court is usually possible as an appeal against notices from other authorities .

construction

The abbreviated and mostly keyword-like reproduction of the content of individual provisions of the AVG does not claim to be complete; Furthermore, not all provisions are expressly listed and / or commented on.

Part I - General Provisions

Section 1: Authorities

Sections 1–7

§§ 1–6: Competence

  • Material competence (which authority is responsible for which matter)
  • Local jurisdiction (which local feature is responsible for)
  • Resolving jurisdiction disputes

The authorities must observe their (factual and local) competence ex officio. Party agreements on the authority's responsibility are not possible.

§ 7: Bias of administrative bodies

When are administrative bodies (= the people who work for the authority) in any case biased and are not allowed to act themselves. However, parties to the proceedings cannot reject an administrative body on the basis of suspected bias.

Section 2: Participants and their representatives

§§ 8-12

  • Participants, parties, legal capacity and capacity to act, representatives
  • Definitions of the terms “involved” and “parties”, who is legally competent, who can act as a representative, when express powers of attorney are not required, under which conditions the authority may have a trustee appointed by the court for those involved.

Section 3: Communication between authorities and parties involved

Sections 13-20

§ 13: Attachment

  • How can concerns be brought to the authority; Entries subject to a deadline must be submitted in writing, but this is generally permitted in any technically possible form.
  • If an entry is inadequate, the authority must first issue the order - with setting a deadline - to remedy the deficiency; if this happens in good time, the entry is deemed to have been submitted correctly.
  • The authority is only obliged to accept written submissions during office hours and only during the intercourse of parties to accept oral or telephone submissions.
  • Attachments may be withdrawn or changed at any time.

Sections 14 and 15: Minutes

If something is brought to the authority orally, a record must be made of it - if necessary. The provision also sets out formal requirements that must be observed. In principle, such a record counts as evidence.

Section 17: Inspection of files

All parties to the proceedings have the right to inspect the file and have copies made of it (if this is technically possible). Under certain conditions, however, the authority may refuse access to the files.

§ 18: Errands

Form and required content of written reports by the authority; Notices must meet additional requirements (→ § 58).

§ 19: Charges

Authorities may summon people if necessary. If necessary, this has to be done with a - then enforceable - decision.

Section 4: Deliveries

§§ 21 and 22:

Reference to the delivery law; for particularly important reasons, the recipient must be sent personally.

Section 5: Deadlines

Sections 32 and 33:

  • Regulation of the start and expiry of deadlines.
  • Statutory deadlines (e.g. appointment deadlines) cannot be changed.

Section 6: Administrative and willful punishments

Sections 34–36

Administrative fines may be imposed on persons who z. B. disrupt an official act, willful punishment against people who apparently employ the authority willfully (" troublemakers ").

Section 7: Definitions

§ 36a:

Definition of the term "relatives".

Part II - Investigation

Section 1: Purpose and course of the preliminary investigation

Sections 37–44g

§ 37: General principles

Establishment of the facts and involvement of the parties

§ 38: Preliminary questions

If a preliminary question needs to be clarified in the proceedings, which would have to be decided by other administrative authorities or the courts as the main question, the authority may either assess it itself and base its further proceedings or suspend its proceedings - with a decision - until this question is answered by the competent authority has been finally decided (provided that such a procedure is already pending there).

Sections 40–44: Oral Hearing

  • Regulations as to who is to be included in an oral hearing, how it is to be made known, and when that must be done.
  • "Preclusion consequences" (= default consequences) for parties who do not raise objections in time despite correct announcement of the negotiation: Party status is lost.
  • Course of the hearing and authorization of the head to structure it, to give the floor, to suspend or adjourn the hearing.
  • Obligation to include a negotiation document.

Sections 44a-44g: Large-scale proceedings

For proceedings with likely more than 100 participants, special rules apply to the announcement, the public discussion, the arranging of negotiations and the service of documents. Practically everything can be done by edict .

Section 2: Evidence

Sections 45–55

What can be considered as evidence (basically everything that is useful, but in any case also obvious facts, documents, witnesses, experts, ...)

Sections 48 and 49: Witnesses

Who may not be heard as a witness, and under what conditions may a witness refuse to testify?

III. Part - notices

Sections 56-62

Section 57

Notices may only be issued under certain conditions, even without a preliminary investigation procedure ( mandate notice ).

§ 58: Content and form of the notices

Notices must be designated as such and in any case contain rulings and instructions on legal remedies . They must also be justified, unless they are issued in accordance with the application and there is no need to discuss objections and applications from other parties involved.

§ 61:

The instructions on legal remedies must state whether the decision is subject to further legal action, if so, when and where the legal remedy must be brought.

§ 62:

  • If this is not regulated differently in material regulations, notices may be issued both in writing and orally. Orally announced notices must also be delivered in writing on request.
  • The authority may correct errors in notifications at any time (i.e. even after they have become final ) - again in notification form.

Part IV - Legal Protection

Section 1: Appeal

Sections 63-67 regulate the legal remedy of appeal, which is decided by the higher-level administrative authority in the administrative body. Since the 2012 amendment to administrative jurisdiction came into force on January 1, 2014, administrative instances are only provided for matters within the municipalities' own sphere of activity .

§ 63:

Appeals must describe the contested decision, contain a reasoned application for appeal and be submitted to the authority of the first instance within two weeks. If an appeal has been waived, it is no longer admissible.

§ 64:

Appeals have suspensive effect. For certain reasons, however, the authority may exclude this effect - also with a notice.

§ 64a:

Appeal preliminary decision

§ 66:

If the appeals authority finds that the facts are so deficient (ascertained) that they have to be negotiated orally (again), they may revoke the contested decision and refer the matter back to a sub-authority.

§ 67:

Appeal notices must always contain a reason.

Section 2: Other amendments to notices

Section 68: Ex officio amendment and correction

  • Rejection of applications in matters that have already been legally decided.
  • Possibility of canceling or amending notices from which no one has a right.
  • Modification of notices in order to remedy grievances that endanger human life or health, or to avert serious economic damage.
  • Annulment by the higher authority if
    • the sub-authority was incompetent or incorrectly composed,
    • the notice
      • would have an illegal success,
      • is actually impracticable, or
      • suffers from an error that is expressly threatened with nullity by law.
  • A declaration of nullity due to lack of competence is only possible within three years of the decision being made.

§ 69 and 70:

Retrial

§ 71 and 72:

Reinstatement in the previous state

Section 3: Duty to Make a Decision

§ 73:

  • Authorities must decide on applications as quickly as possible, but usually within six months at the latest.
  • If this does not happen, the applicant can submit an application for the transfer of the decision-making obligation directly to the higher authority in matters in which an appeal is permissible (" devolution application "). Since the amendment to administrative jurisdiction in 2012 came into force on January 1, 2014, appointments are only allowed in matters within the municipalities' own sphere of activity . In all other cases, a default complaint can be lodged with the competent administrative court.

V. part - costs

Section 74: Costs of those involved

  • In the administrative procedure everyone has to bear their own costs.
  • If the material regulations provide for cost reimbursement claims between parties involved, the authority must determine the amount.

Section 75: Costs of the authorities

Costs for official activities are to be borne ex officio - unless sections 76 to 78 are applicable.

§ 76:

Cash expenses incurred during an official act (e.g. announcements in newspapers, fees from experts) must be reimbursed to the authority by the applicant.

§ 77:

Commission fees may be charged for official acts outside the office. The applicant must also bear this.

§ 78:

Administrative fees may be imposed in matters of the federal administration for the granting of authorizations, unless this is regulated differently in material regulations.

VI. Part - final provisions

Sections 80–82:

  • If the AVG refers to other federal laws, this refers to the currently valid version (" dynamic reference ").
  • Execution order: The federal government is entrusted.
  • Come into effect.

literature

  • Metin Akyürek, Daniel Ennöckl, Nicolas Raschauer , Peter Sander, Wolfgang Wessely: Casebook administrative procedural law. 2nd, revised edition. facultas.wuv, Vienna 2008, ISBN 978-3-7089-0242-5 .
  • Wolfgang Fasching, Walter Schwartz: Administrative procedural law at a glance. EGVG, AVG, ZusatzG, VStG, VVG, E-GovG. 4th, revised edition. facultas.wuv, Vienna 2009, ISBN 978-3-7089-0282-1 .
  • Johannes Hengstschläger, David Leeb (Ed.): Commentary on the General Administrative Procedure Act. = AVG, General Administrative Procedure Act. 5 volumes. Manz, Vienna 2004ff .;
  • Johannes Hengstschläger: Administrative procedural law. A systematic floor plan. 3rd, revised edition. WUV, Vienna 2005, ISBN 3-85114-934-3 .
  • Michael Holoubek , Michael Lang (Hrsg.): General principles of the administrative and tax procedure. Linde, Vienna 2006, ISBN 3-7073-0941-X .
  • Friederike Philipp: Preclusion regulations in administrative proceedings. Comparative legal analysis between Austria and Germany in the light of European law (=  series of publications on the whole of European law. Vol. 8). Manz, Vienna 2002, ISBN 3-214-12786-1 (also: Vienna, University, Dissertation, 2000).
  • Robert Walter , Heinz Mayer : Outline of the Austrian administrative procedural law (= Manzsche short textbook series 7). 8th, revised and supplemented edition. Manz, Vienna 2003, ISBN 3-214-18434-2 .
  • Robert Walter, Rudolf Thienel : The Austrian administrative procedural laws . Including delivery law, agricultural procedure law, service law procedure law and the most important implementing ordinances and state contracts (= Manzsche law issues. Special edition 12). 17th, revised edition, legal situation: July 1, 2008, status: March 1, 2008. Manz, Vienna 2008, ISBN 978-3-214-03255-5 .
  • Gerlinde Weilinger: Administrative Procedure Laws (= Code of Austrian Law ). 37th edition, as of September 1, 2008. LexisNexis ARD Orac, Vienna 2008, ISBN 978-3-7007-4030-8 .
  • Gerhart Wielinger: Introduction to Austrian Administrative Procedure Law. 11th, revised edition. Leykam, Graz 2008, ISBN 978-3-7011-0117-7 .

Web links

Individual evidence

  1. ↑ Federal Law Gazette 274/1925 . Austrian National Library. Accessed in 2019-22-01-22.