Administrative Court (Austria)

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Jurisdiction in Austria since January 1, 2014

Administrative courts in Austria are, in the broader sense, all courts that exercise administrative jurisdiction and, in the narrower sense, only the administrative courts of first instance .

Legal basis and external organization

The principles of administrative jurisdiction are regulated by the Federal Constitutional Law (B-VG). The exercise of administrative jurisdiction is therefore incumbent

The principles of the external organization of the administrative courts are specified in Art. 134 B-VG. In addition to these regulations, the federal and state governments have issued their own legal provisions relating to the organization of their courts. Based on these requirements of the Federal Constitution, all 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 at the state administrative courts and by the federal president at the federal administrative courts and the administrative court on the proposal of the federal government. With regard to the judges (but not for the president and vice-president), the state government or the federal government must obtain a three-party proposal from the general assembly (or a committee of the general assembly). This self-sufficiency is intended to strengthen judicial independence. However, the three-way proposal is only binding for the appointment of judges at the Administrative Court.

The proceedings before the administrative courts of first instance are regulated nationwide by the Administrative Court Procedure Act (VwGVG) and - for proceedings relating to taxes and duties - by the Federal Fiscal Code. The procedure before the Administrative Court is regulated in the Administrative Court Act.

As a rule, the administrative courts of the first instance ( Art. 135 para. 1 first sentence B-VG) perform the 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 administrative court always decides through senates, which consist of three, five or seven professional judges.

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 administrative courts of first instance, the administrative instance, i.e. the right to appeal against a decision from an administrative authority to the respective superordinate authority, was 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.

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 , the Federal Administrative Court and the Federal Finance Court is based on Art. 131 B-VG. However, this provision allows different regulations in simple federal and state laws.

Against the findings of the administrative courts, the appeal to the Administrative Court as a revision instance goes .

In the legal system in the area of ​​administrative jurisdiction, there is a special form of a complaint for findings: According to Art. 144 B-VG , the Constitutional Court decides on complaints against decisions (findings and resolutions) of the administrative courts of first instance ( special administrative jurisdiction ). The Constitutional Court examines the compatibility of the decisions with constitutional law (and the compatibility of the regulations applied by the administrative courts with the law). Conversely, according to Art. 133 (5) B-VG, the Administrative Court can only review the decisions of the administrative courts for their compatibility with simple laws and regulations. It can therefore make sense to appeal against decisions both to the Administrative Court and to appeal to the Constitutional Court; In this case, the Constitutional Court decides first, which assigns the case to the Administrative Court in accordance with Art. 144 Para. 3 B-VG if it does not allow the complaint itself and already annuls the decision itself.

This peculiarity is due to the fact that in Austria the highest courts ( Supreme Court , Administrative Court and Constitutional Court) have equal rank and therefore decisions of the Administrative Court can no longer be reviewed by the Constitutional Court. There is no possibility of a constitutional complaint in the area of ​​ordinary jurisdiction .

History of Administrative Jurisdiction

As a result of the 2012 amendment to administrative jurisdiction, administrative jurisdiction was organized in two stages for the first time in Austrian legal history from January 1, 2014. Previously, administrative jurisdiction was only organized on a one-level basis: here, decisions of last instance before the Constitutional Court (for unconstitutionality) and before the Administrative Court (for other unlawfulness) could be appealed.

As this legal protection system was viewed as inadequate over time, a large number of collegial authorities with judicial influence were established. With the amendment to the B-VG in 1988 ( Federal Law Gazette No. 685/1988 ), the Independent Administrative  Senates (UVS) were also set up as court-like bodies that preceded the two courts of public law (Administrative Court, Constitutional Court). The Independent Federal Asylum Senate  (UBAS) and the Independent Financial Senate  (UFS) were set up as federal institutions based on the model of the Independent Administrative Senates .

The collegial authorities with judicial influence as well as the mentioned senates were not courts in the formal sense, but independent and independent administrative authorities. It was not until the 2012 amendment to administrative jurisdiction that the Independent Administrative Senates were converted into the State Administrative Courts and the Independent Financial Senate into the Federal Finance Court. The former Independent Federal Asylum  Senate was converted into an administrative court, the Asylum Court (AsylGH), in 2008 . As part of the 2012 amendment to the administrative jurisdiction, it became a (general) Federal Administrative Court.

With the 2012 amendment to administrative jurisdiction, the activities of the administrative authorities in Austria are now only one-step, as there is no longer any appeal to a second instance authority within the administration, but only to the administrative courts. The municipalities are the only exception; here the states can provide for a legal remedy within the municipality. A complaint to the administrative courts is only permissible against the decision of the local authority responsible in the second instance.

criticism

The Consultative Council of European Judges (CCJE) of the Council of Europe criticized the administrative courts in Austria in the 2017 country report. There is a lack of sufficient transparency in the selection of administrative judges (point 53 of the report) and sufficient legal protection for applicants who have been passed over (point 54 of the report). The selection of the court presidents - without the involvement of the courts - is regarded as insufficient. This selection of the court president should be based on the same principles as the selection of the judges themselves (point 55 of the report). The lack of freedom of the presidents of the administrative courts to issue instructions in matters relating to the administration of justice (item 113 of the report) is also criticized. There is also a lack of budget sovereignty for the courts and this is contrary to European standards (point 258 of the report).

With regard to the reporting on the decision of the Federal Administrative Court regarding the third runway at Vienna Airport as well as the public criticism of the provincial governors of this decision, the violation of European standards regarding the avoidance of unbalanced criticism ("unbalanced critical commentaries") of court judgments is established (point 302 ff of the report).

Web links

Individual evidence

  1. ↑ The Federal Constitutional Act only uses the term administrative courts for the administrative courts of first instance .
  2. ↑ On the use of the term administrative court of first instance, see for example: Martin Köhler: Die neue Verwaltungsgerichtsbarkeit (PDF), Administrative Academy Carinthia, accessed on January 3, 2014
  3. ↑ Until 2012: Independent finance senate with branch offices (regional senates) in Feldkirch, Graz, Innsbruck, Klagenfurt, Linz, Salzburg and Vienna.
  4. ↑ Item 303 of the report.
  5. ↑ Report on judicial independence and impartiality in the Council of Europe member States in 2017 , CCJE (2017) 5Prov5, saved on the website of the Association of Administrative Judges in Austria , last accessed on November 7, 2017.
  6. ↑ See also letter from the Association of European Administrative Judges ( AEAJ ) to CCJE dated August 21, 2017.