Administrative jurisdiction amendment 2012

Basic data
Title:	Administrative jurisdiction amendment 2012
Type:	Federal Law (Federal Constitutional Law)
Scope:	Republic of Austria
Legal matter:	Constitution
Reference:	Federal law with which the Federal Constitutional Law, the Financial Constitutional Law 1948, the Financial Criminal Law, the Federal Law amending the Invalideneinstellungsgesetz 1969, the Federal Social Office Law, the Environmental Impact Assessment Law 2000, the Federal Law Gazette Law, the Administrative Court Law 1985 and the Constitutional Court Law 1953 and some federal constitutional laws and constitutional provisions contained in simple federal laws are repealed (Administrative Court Amendment 2012) Federal Law Gazette I No. 51/2012
Effective date:	January 1, 2014
	Please note the note on the applicable legal version !

The 2012 amendment to administrative jurisdiction is one of the most extensive changes to the Austrian Federal Constitution since it was passed in 1920. The most important new feature of this amendment , most of which came into force on January 1, 2014, was the administrative jurisdiction, which was previously only organized in one stage, with the administrative court and the 11 subordinate administrative courts organized in two stages.

The amendment consists partly of constitutional provisions marked as such, with which the Federal Constitutional Law was amended or supplemented, and partly of simple legal provisions with which federal laws were adapted to the new constitutional situation.

Legal position until December 31, 2013

Until the amendment came into force in full, administrative jurisdiction was generally exercised by only one instance - the Administrative Court. However, the Constitutional Court decided on the violation of constitutionally guaranteed rights by a decision ( special administrative jurisdiction ). Before the Constitutional Court and the Administrative Court could be appealed, the administrative court had to go through, ie all the possibilities of appeal or objection given in the administrative procedure had to be exhausted.

The higher-level administrative authorities usually decide on appeals or objections. For certain cases, the federal or state legislature had designated independent institutions such as the Independent Administrative Senate , the Independent Financial Senate , collegial authorities with judicial influence or other special authorities that were not subject to instructions as the appellate body. In these institutions, the decision-makers were free from instructions; as they mostly worked in administration before or after this activity, their actual complete independence was doubtful. Against this background, it was not least disputed whether Austria adequately complied with the fundamental rights obligations from Article 6 of the European Convention on Human Rights and from Article 47 of the Charter of Fundamental Rights of the European Union .

Legal situation since January 1, 2014

With the 2012 amendment, the administrative authority (with the exception of the municipalities' own sphere of activity ) was abolished. Notices as well as acts of direct administrative command and coercive power can now be contested directly in the administrative courts. The administrative jurisdiction was organized in two stages.

The administrative courts of first instance were set up:

for matters of the state administration, the indirect federal administration and the other matters not belonging to the direct federal administration (e.g. matters of the self-governing bodies ) in each federal state a state administrative court (the organization of the court determines a state law)
a (general) federal administrative court and a federal finance court (the organization of these two courts is determined by federal law) for matters dealt with by the federal government itself in direct federal administration

The decisions of the administrative courts of first instance can be appealed to the administrative court.

The 2012 amendment to administrative jurisdiction provides for the retention of special administrative jurisdiction, but this should be exercised against the administrative courts of first instance: In addition to the possibility of an appeal, a complaint can be lodged with the Constitutional Court against findings of the administrative courts of first instance. As before, the Constitutional Court decides before the Administrative Court; if he does not see constitutionally guaranteed rights violated, he can submit the complaint to the Administrative Court for decision.

Jurisdiction in Austria from January 1, 2014

With the new version of Art. 94 (2) B-VG through the amendment to administrative jurisdiction 2012, the possibility is opened for the first time to provide an instance of an administrative authority to the ordinary courts in exceptional cases. If this option is used, a complaint to the administrative courts is not possible.

Further changes

The amendment contains various amendments to the Federal Constitutional Act (e.g. to delimit and interact between the Constitutional and Administrative Court) and other laws in line with the new, two-tier administrative jurisdiction. It lists 13 constitutional laws or constitutional provisions in simple laws that expired on January 1, 2014.

Furthermore, the 2012 amendment to the administrative jurisdiction provides for the deletion of the federal government's suspensive (suspensive) veto right against legislative resolutions of the state parliaments with effect from July 1, 2012. This regulation corresponded to the right of veto granted to the Federal Council in federal legislation against most of the decisions of the National Council.

In addition, the 2012 amendment to the administrative jurisdiction ordered that a number of independent administrative authorities - whose tasks will be taken over by the administrative courts - be dissolved on January 1, 2014, without the need for a further implementation law. Although the explanations in the government bill claim that the tasks of the authorities will be transferred to the administrative courts, some of the authorities had to be re-established by law, as the authorities concerned also have to perform tasks that are not transferred to the administrative courts due to the provisions of the 2012 amendment to the administrative jurisdiction could become. For example, it was decided to re-establish the data protection commission as the data protection authority , the rail control commission and the copyright senate. The tasks of many other authorities, such as the disciplinary authorities of various chambers (e.g. medical chambers), the state agricultural senate, the supreme agricultural senate, the independent environmental senate and the procurement control senates in the provinces of Vienna and Salzburg, are actually performed by the administrative courts. In individual cases, the tasks of authorities that are not subject to instructions, such as the Supreme Patent and Trademark Senate or the Enforcement Senate, have been transferred to the ordinary courts.

Preliminary work and history

The 2012 amendment to administrative jurisdiction was preceded by decades of preparatory work. In 1988, with the creation of the Independent Administrative Senates, a partial step towards the creation of a two-tier administrative jurisdiction was anticipated. A bill to create a two-tier administrative jurisdiction was presented in 2008, but at that time only the creation of the Asylum Court as a special administrative court - limited to asylum matters - was implemented (the Asylum Court became the Federal Administrative Court on January 1, 2014).

The present law was passed unanimously by the National Council on May 15, 2012. The Federal Council approved on May 31, 2012. The law signed by the Federal President and countersigned by the Federal Chancellor was announced on June 5, 2012 in the Federal Law Gazette for the Republic of Austria : Federal Law Gazette I No. 51/2012 .