Collegial authority with judicial influence
Collegial authorities with a judicial element are special administrative authorities in Austria that operate without instructions and of which at least one judge is a member.
Until December 31, 2013, the legal basis for collegial authorities with judicial action was Art. 20, Paragraph 2, Item 3 and Art. 133, Item 4 of the Federal Constitutional Act . With the 2012 amendment to administrative jurisdiction , which came into force on January 1, 2014, these provisions were repealed. In accordance with the explanations on the 2012 amendment to administrative jurisdiction, it is still permissible to set up authorities that are not subject to instructions and also include judges as members, if another legal basis provided for in the federal constitution can be found for the exemption from instructions.
Due to their freedom of instruction and independence, collegial authorities with a judicial role are to be regarded as courts within the meaning of the European Convention on Human Rights and European law , while under constitutional law (within the meaning of the Federal Constitutional Law) they are to be regarded as administrative authorities. In Austrian legal language, such institutions are usually referred to as tribunals .
Legal situation before the 2012 amendment to administrative jurisdiction came into force
The mentioned naming of the collegial authorities with judicial influence in Art. 20 para. 2 no. 3 B-VG resulted in their exemption from instructions. Due to their citation in Art. 133 No. 4, no appeal to the Administrative Court against decisions by collegial authorities with judicial influence was permitted. However, it was possible that a (simple) law could expressly declare the complaint admissible, which was often the case.
Examples of collegial authorities with judicial influence were the Federal Communications Senate , the Supreme Patent and Trademark Senate, and the Land Transport Commissions . The Telekom Control Commission is a collegial authority with judicial influence, which still exists after the 2012 amendment to administrative jurisdiction; Due to the omission of the special regulations for collegial authorities with judicial influence, however, a complaint to the Federal Administrative Court is now permissible against notices of the Telekom-Control-Commission - as is also otherwise provided for with other authorities .
The establishment of collegial authorities with judicial influence leads to a restriction of the principle that the state administration is bound by instructions and thus the parliamentary responsibility of the otherwise competent supreme administrative body (usually the federal minister or the state government ).
The Constitutional Court has therefore declared the establishment of collegial authorities with judicial influence, especially where the task of direct administrative management coincides with the function of administrative judicial control, only to a very limited extent and permitted under special objective conditions.
