Provincial Administrative Court

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The provincial administrative courts are the administrative courts in Austria that are predominantly responsible for matters that are not dealt with directly in the federal administration (including, among other things, matters relating to the indirect federal administration and the provincial administration) . In accordance with the requirements of the Federal Constitutional Law , a regional administrative court must be set up in each federal state. The provincial administrative courts are the only courts in Austria that are sponsored by the federal states. As administrative courts of first instance, they are on the same level as the Federal Administrative Court and the Federal Finance Court . They replace a number of previously independent state administrative authorities, in particular the Independent Administrative Senates , which were dissolved on January 1, 2014 due to the 2012 amendment to the administrative jurisdiction .

Jurisdiction in Austria since January 1, 2014

Legal basis and external organization

The principles of state administrative jurisdiction are regulated by the Federal Constitutional Law (B-VG). In addition, the federal states have to enact their own legal provisions, particularly those relating to the organization of courts. As a result of the amendments to the amendment to the administrative jurisdiction, Art. 136 para. 1 B-VG has stipulated since January 1, 2014:

"The organization of the administrative courts of the states is regulated by state law, the organization of the federal administrative courts by federal law."

The federal states have therefore already passed corresponding laws, which has led to widely differing service rights with clear effects on judicial independence. The Constitutional Court could not identify any need for unification. The procedure before the regional administrative courts is regulated in the Administrative Court Procedure Act (VwGVG).

The principles of the external organization of the administrative courts are specified in Art. 134 B-VG. Accordingly, the state administrative courts each consist of a president, a vice-president and other judges. The president, the vice-president and the other judges are appointed by the state government. This runs counter to the absolute independence of the courts. With regard to the judges (but not for the president and vice-president), the state government has to obtain a tripartite proposal from the general assembly (or a committee of the general assembly). This self-sufficiency is intended to strengthen judicial independence.

As a rule, the regional administrative courts ( Article 135, Paragraph 1, first sentence of the Federal Constitutional Law) perform their judicial activities through single judges. In individual cases, the decision can be made by the Senate. In the respective substantive laws it can be provided that the senates also include competent lay judges. These are appointed for a certain period of time and exercise their office on a part-time basis. You have the same rights as the professional judges in the respective proceedings.

The individual regional administrative courts

The following table shows the data as of February 15, 2020:

Surname Organization Act Headquarters president Judge Website
Provincial administrative court Burgenland Bgld. LVwGG Eisenstadt , Europaplatz 1 currently vacant 9 judges Verwaltungsgericht.bgld.gv.at
Provincial Administrative Court of Carinthia K-LvwGG Klagenfurt am Wörthersee , Fromillerstraße 20 Ragoßnig Armin 21 judges www.lvwg.ktn.gv.at
Provincial Administrative Court of Lower Austria Lower Austrian LVGG St. Pölten , Rennbahnstraße 29 Patrick Segalla 50 judges www.lvwg.noe.gv.at
Provincial Administrative Court of Upper Austria Oö. LvwGG Linz , Volksgartenstrasse 14 Johannes Fischer 35 judges www.lvwg-ooe.gv.at
Regional Administrative Court of Salzburg S.LVwGG Salzburg , Wasserfeldstrasse 30 Jindra-Feichtner Claudia 30 judges www.lvwg-salzburg.gv.at
Provincial Administrative Court of Styria StLVwGG Graz , Salzamtsgasse 3 Gerhard Gödl 38 judges www.lvwg-stmk.gv.at
Regional Administrative Court of Tyrol TLVwGG Innsbruck , Michael-Gaismair-Straße 1 Christoph Purtscher 36 judges www.lvwg-tirol.gv.at
Regional Administrative Court of Vorarlberg LVwG-G Bregenz , Landwehrstrasse 1 Nikolaus Brandtner 15 judges www.lvwg-vorarlberg.at
Administrative Court of Vienna VGWG Vienna XIX. , Muthgasse 62 Dieter Kolonovits 92 judges www.verwaltungsgericht.wien.gv.at

Responsibilities and authority

According to Art. 130 B-VG, the administrative courts decide in particular on

  • Complaints because of illegality against the decision of an administrative authority ( notification complaint ) and because of violation of the decision-making obligation of an administrative authority, i.e. if the administrative authority has not issued a decision within the statutory period ( default complaint ) and
  • Complaints about illegal exercise of direct administrative authority and coercive power (complaint for measures ).

With the creation of the regional administrative courts, administrative instances, i.e. the right to appeal against a decision from an administrative authority to the respective superordinate authority, were fundamentally abolished. Only in matters of local government do the states have the right to decide whether to maintain or to abolish the internal appeal. For example, Vorarlberg has recorded internal community instances: This means that building notices, for example, must first be fought in an internal community appeal procedure before the regional administrative court can be appealed to. Conversely, Tyrol has abolished the intra-congregational instance.

In addition to the powers mentioned above, the administrative courts can make a decision by law

be transmitted.

The division of jurisdiction between the regional administrative courts and the federal administrative courts is based on Art. 131 B-VG. The state administrative courts therefore decide in matters

However, the jurisdiction of the state administrative courts is not conclusively regulated by the Federal Constitution, since the law can transfer the responsibilities of the state administrative courts to the Federal Administrative Court or the Federal Finance Court and, conversely, the responsibilities of these courts can also be transferred to the state administrative courts. Such laws can only be enacted by the federal government with the consent of the states and by the states only with the consent of the federal government.

The appeal to the Administrative Court as a revision instance goes against the findings of the regional administrative courts . It is also possible to lodge complaints with the Constitutional Court against the findings of the regional administrative courts.

Naming

The Austrian Federal Constitutional Law only knows the term “administrative court of the country” or “administrative courts of the federal states”. The designations “Federal Administrative Court” and “Federal Finance Court” are specified in Art. 129 B-VG only for the two federal administrative courts . The names of the administrative courts of the federal states are specified in the respective state laws. In all federal states except Vienna, the administrative court is known as the regional administrative court. For example, the administrative court of the Province of Burgenland is referred to as the "Provincial Administrative Court of Burgenland" ( § 1 Bgld LVwGG). The Administrative Court of the State of Vienna is only referred to as the “Administrative Court Vienna” ( Section 1 VGWG).

criticism

Council of Europe

The Council of Europe has repeatedly included criticisms of the Association of European Administrative Judges (AEAJ) in its country report ("Situation Report 2017") on the situation of the judiciary in Europe with regard to federal and regional administrative jurisdiction in Austria, which lead to the fear that none There is sufficient independence of the federal and regional administrative courts in Austria from the executive (government) (see “Situation Report 2017”, Ranz number: 53–55, 111, 254, 298–300).

The Council of Europe also took up a criticism of the umbrella association of administrative judges (DVVR), in which the current situation of the new administrative courts in Austria was critically reflected. Among other things, it was criticized that the court presidents of the new administrative courts are selected without the involvement of the judges. This would not meet European standards for the selection of judges.

In the “Situation Report 2017” on the situation of the judiciary in Europe, this criticism is confirmed by a letter from the Austrian Federal Minister for Constitution, Reforms, Deregulation and Justice (page 72 of the report). It is stated that there is such an exception for the selection of the presidents of the administrative courts. At the Federal Administrative Court , the President of the Federal Administrative Court had to submit to a hearing by a commission in accordance with Section 2 (3) BVwGG. On the basis of this hearing, this commission proposed at least three candidates for appointment. However, the choice of presidents is a pure discretionary decision of the government. There was no explanation of the processes and procedures involved in the appointment of presidents at the regional administrative courts in the federal states.

The Council of Europe also referred to the AEAJ criticism by provincial governors in Austria on the administrative court decision on the “ third runway ” at Vienna Airport (see “Situation Report 2017”, Ranz number: 298-300) and criticized this approach by the provincial governors . This is particularly because the governors not only represent the highest administration in the federal states, but are also those who control the people who select the administrative judges and are responsible for allocating the budget of the administrative courts (see "Situation Report 2017", Ranz number: 299).

This criticism, which Austria still has not taken up and also not implemented, is repeated again by the Council of Europe in the report CCJE-BU (2019) 3 of March 29, 2019 with regard to the Provincial Administrative Court in Vienna and the problem again based on a Provincial Administrative Court (Vienna), whereby this criticism and suggestions can be applied to all regional administrative courts in Austria that have similar structures. Without addressing these concerns of the Council of Europe about the possible political influence on the organization of the courts or without establishing this independence, the State of Vienna then set up a new “legal department” in the Presidium of the Administrative Court, which is unique for courts. The management of this legal department is not incumbent on a judge, but on an administrative officer bound by the instructions of the State of Vienna. The legal staff unit should be responsible for supporting the president as a service authority, selecting legal staff and assigning them to judges. In addition to legal knowledge, only loyalty to the president, discretion and stress stability are required in the tender.

GRECO

In the Group of States against Corruption (GRECO) report on the prevention of corruption in Austrian courts, reference was also made to the legal status of administrative judges in Vorarlberg. The report stated that the judges would be treated as contract agents. GRECO justifies this very critical assessment of the legal position of the Vorarlberg administrative judges with the opinion of the Vorarlberg state employees' representatives on the State Administrative Court Act, statements by Governor Markus Wallner and information from newly appointed judges of the LVwG, who refuse to receive a notification of the amount of their remuneration with regard to their legal position has been. The staff representatives had described the legal status as "pragmatization light" and emphasized that the employment relationship of judges in Vorarlberg ends when they reach the age limit (or in the event of incapacity) and that they do not retire (which is Art. 134 para. 7 B-VG for state administrative judges, but not for other judges), which means that they are not financially secure in these cases and have to hope for a benefit from social insurance.

The President of the Provincial Administrative Court of Vorarlberg has stated that GRECO's assessment "has been proven to be wrong", since the "Vorarlberg Provincial Administrative Court Act without any doubt results" that "all judges of the Vorarlberg Provincial Administrative Court are employed under public law".

"Greco" calls for administrative judges to have uniform service law and binding suggestions for appointments throughout Austria, in addition to a large number of other improvement measures.

Web links

Individual evidence

  1. ^ A b c Organization - Provincial Administrative Court Burgenland. Retrieved February 15, 2020 .
  2. ↑ a b Presidium - Regional Administrative Court of Carinthia. Retrieved February 15, 2020 .
  3. ↑ On the judges (without president), cf. Administrative judge - Regional Administrative Court of Carinthia. Retrieved February 15, 2020 .
  4. ↑ Contact - Provincial Administrative Court of Lower Austria. Retrieved February 15, 2020 .
  5. ^ Organization - Provincial Administrative Court of Lower Austria. Retrieved February 15, 2020 .
  6. ^ Judges - Provincial Administrative Court of Lower Austria. Retrieved February 15, 2020 .
  7. ↑ a b c Team - Regional Administrative Court of Upper Austria. Retrieved February 15, 2020 .
  8. ↑ Contact - Regional Administrative Court Salzburg. Retrieved February 15, 2020 .
  9. ↑ a b Team - Regional Administrative Court Salzburg. Retrieved February 15, 2020 .
  10. ↑ a b c President and right-wingers - Provincial Administrative Court of Styria. Retrieved February 15, 2020 .
  11. ^ A b The court - Regional Administrative Court of Tyrol. Retrieved February 15, 2020 .
  12. ^ Judges - Regional Administrative Court of Tyrol. Retrieved February 15, 2020 .
  13. ↑ Contact - Regional Administrative Court Vorarlberg. Retrieved February 15, 2020 .
  14. ↑ a b Team - Regional Administrative Court of Vorarlberg. Retrieved February 15, 2020 .
  15. ↑ a b c Judges - Administrative Court Vienna. Retrieved February 15, 2020 .
  16. ↑ Administrative court comes to Bregenz. ORF Vorarlberg, accessed on February 5, 2020 .
  17. ↑ Regional Administrative Court of Tyrol: Presentation , accessed on January 3, 2014
  18. ^ Report on judicial independence and impartiality in the Council of Europe member States in 2017 , Council of Europe website, last accessed on February 27, 2018.
  19. ↑ Austria defends selection procedure for presidents of administrative courts before the Council of Europe , website of the Association of Administrative Judges, last accessed on February 27, 2018.
  20. ↑ Recommendation No. 19 of the Council of Europe on the role of court presidents (English), Council of Europe website, last accessed on February 27, 2018.
  21. ↑ CCJE-BU (2019) 3 .
  22. ↑ See also: The independence of the judiciary at risk , Die Presse, April 28, 2019.
  23. ↑ Vienna: State supports the president , website: uvsvereinigung.wordpress.com from May 24, 2019.
  24. ↑ a b Quotations from On the legal status of administrative judges in Vorarlberg on the website of the Administrative Judges Association from February 23, 2017.
  25. ↑ Statement of the state staff representative from November 8 , 2012 , accessed on February 24, 2017
  26. ↑ FOURTH ROUND OF EVALUATION Corruption prevention among members of parliament, judges and public prosecutors , GrecoEval4Rep (2016) 1, p. 74, accessed on March 3, 2017.