1. National judicial organisation
1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order
As one of Austria’s three supreme courts the Supreme Administrative Court (VwGH) has final jurisdiction in matters of administrative law. As such it is placed above the lower administrative courts, which in turn ensure that administrative authorities such as tax offices, district authorities and the Federal Office for Immigration and Asylum act in conformity with the law. Austria has two separate jurisdictional orders - the ordinary courts, ruling over civil and criminal law matters and the administrative jurisdictional order, ruling over administrative matters, including administrative penal law. The ordinary courts are under the final jurisdiction of the Supreme Court (OGH), the administrative courts under final jurisdiction of the Supreme Administrative Court (VwGH) and the Constitutional Court (VfGH).
1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts
On April 2nd 1876 the law founding the Administrative Court of the former Austrian Monarchy entered into force and founded the Court.
After the dissolution of the Austro-Hungarian Monarchy the Administrative Court for the Republic of Austria was established under the country’s new republican constitution in 1918. In 1934, after the end of the parliamentary-democratic system, the Administrative and Constitutional Courts were merged to form the so-called Federal Court of Justice (Bundesgerichtshof) and several justices were retired for political reasons. 1940 the Federal Court of Justices was integrated into the administrative justice system of the German Reich and in 1941 was merged with other administrative courts of the German Reich into the “Reichsverwaltungsgericht”. In 1945 the Austrian Administrative Court was re-established and resumed its work on December 7th.
In 1995 the Republic of Austria joined the European Union, making the Administrative Court part of the European justice system. On September 8th 1996 the Court made its first reference for a preliminary ruling to the European Court of Justice.
In 2014, following one of the most comprehensive reforms of Austria’s system of administrative justice, new administrative courts of first instance at a federal and regional level took up operations. The reform created eleven new administrative courts, the so called “9+2 model”, one for each of the nine provinces, one for review of the decisions of federal agencies, and one for the review of administrative decisions in financial matters. The Supreme Administrative Court is empowered to review the rulings of these lower administrative courts, thus retaining final jurisdiction in all administrative matters.
1.3 Criteria of competence of the administrative jurisdiction
Administrative jurisdiction can only be exercised over acts of a public authority exercising its public power prerogative (issued decisions or acts of direct administrative power and compulsion) or failure of an administrative authority to comply with its time limit to issue a decision. For the administrative courts to act, a complaint has to be filed with the competent court.
As a rule, the Supreme Administrative Court only acts upon request. The Federal Constitution provides for various ways in which a matter can be brought before the Supreme Administrative Court:
Natural and legal persons may petition for review of rulings by lower administrative courts if these involve legal questions of fundamental importance. A legal issue is considered to be of fundamental importance if the contested court ruling departs from relevant past decisions of the Supreme Administrative Court or if there is no – or no consistent – case law on the issue in question.
If the Supreme Administrative Court finds for the petitioner, it annuls the decision under review and sends it back to the court, which issued it. In giving its new decision, this court is bound to apply the interpretation of the Supreme Administrative Court. Otherwise the petition for review is dismissed as unfounded. Under certain circumstances, however, the Supreme Administrative Court itself may decide on the merits, possibly requiring the lower court to establish additional facts. Should a petition for review be found to be formally defective (e.g. if it was filed late or does not involve an issue of fundamental importance), it is dismissed by court order. The Supreme Administrative Court can also be called upon in cases where a lower administrative court fails to give a timely decision. Moreover, it rules on disputes regarding jurisdiction and, upon the request of an ordinary (i.e. civil/criminal) court of law, on the legality of decisions issued by administrative authorities or lower administrative courts.
As a rule, petitions to the Supreme Administrative Court must be drafted and submitted by a lawyer (or alternatively, in fiscal matters, by a tax adviser or certified public accountant).
2. Organisation of the aadministrative jurisdictional order
2.1. Key founding texts
- Federal Constitutional Law (Bundesverfassungsgesetz - B-VG), especially Art. 129-136
- Supreme Administrative Court Act 1985 (Verwaltungsgerichtshofgesetz 1985 - VwGG 1985)
- Federal Administrative Court Act (Bundesverwaltungsgerichtsgesetz – BVwGG)
- Federal Financial Court Act (Bundesfinanzgerichtsgesetz - BFGG)
- Nine Administrative Court of the Province Acts (Landesverwaltungsgerichtsgesetze)
The Federal Constitutional Law, the Supreme Administrative Court Act 1985 and the Federal Administrative Court Act are available online in English:
2.2. Organisation and competence of the administrative jurisdiction
2.2.1. General organisation of the administrative jurisdictional order
Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts?
As mentioned previously, in 2014 a so-called „9+2 model“ was adopted by the Austrian federal legislator, which meant that since 2014 one Federal Administrative Court ("Bundesverwaltungsgericht"), one Federal Fiscal Court ("Bundesfinanzgericht"), and nine administrative courts of the provinces ("Verwaltungsgerichte der Länder") were established (see also Art. 129 B-VG).
Pursuant to Art. 130 para. 1 B-VG the administrative courts decide on complaints against rulings by administrative authorities due to unlawfulness, against the unlawful exercise of direct administrative power and compulsion, on the grounds of breach of duty to issue a decision by an administrative authority and against instructions pursuant to Art. 81a para 4 B‑VG in connection with supervisory school authorities. Due to a recent reorganisation of the organisation of the school authorities, this competence will be abolished from 1.1.2019.
According to Art. 130 para. 1a B‑VG the Federal Administrative Court pronounces judgments on the use of coercive measures in relation to witnesses of an inquiry committee of the National Council pursuant to the Federal Law on the Rules of Procedure of the National Council. The EU directive on the European investigation order in criminal matters was implemented by the Austrian legislator in a federal law, in which the possibility of establishing further jurisdiction of the administrative courts in matters of obtaining enforcement of European investigation orders in another Member State is stipulated by a constitutional clause (§ 3 para. 2 EAO-VStS). In these matters the Art. 131 para. 1 to 5 B‑VG are to be applied correspondingly.
Apart from the aforementioned competence enshrined in the Federal Constitution Law, federal or provincial legislation may stipulate further jurisdictions for the administrative courts to decide upon with regards to complaints for unlawful conduct of an administrative authority in executing the law, complaints for unlawful conduct of a contracting authority in matters of public procurement or disputes in civil service law matters of civil servants (Art. 130 para. 2 B-VG).
Generally (unless it is stipulated otherwise), the administrative courts of the provinces have jurisdiction regarding all complaints according to Art. 130 para 1 B-VG (Art. 131 para. 1 B-VG).
The Federal Administrative Court is competent to decide on complaints pursuant to Art. 130 para 1 B-VG in legal matters directly executed by federal authorities, in public procurement law, if the enforcement of such provisions fall under federal responsibility, and civil service law matters for federal civil servants. The Federal Fiscal Court deals with complaints according to Art. 130 para 1 B-VG in legal matters concerning public taxes (with the exception of administrative fees of the Federation, the provinces and municipalities) and financial penal law as well as in other matters determined by law, in which federal tax authorities or financial penal authorities are directly involved.
The competences regarding the Federal Administrative Court and the Federal Fiscal Court can be modified by federal legislation and the administrative courts can have jurisdiction over these matters (Art. 131 para. 4 sub-para. 1 B-VG) or the Federal Administrative Court may be granted jurisdiction in legal matters, which are not directly executed by federal authorities (Art. 131 para. 4 sub-para. 2 lit. b B-VG). The same modification can also be implemented by provincial legislation with regards to the competences of the administrative courts expanding the jurisdiction of the federal courts.
Against the decisions of the aforementioned administrative courts, a complaint can be filed with the Supreme Administrative Court and the Constitutional Court. Therefore, according to Art. 133 para. 4 B‑VG final complaint against the ruling of an administrative court to the Supreme Administrative Court is admissible, if the solution depends on a legal question of essential importance, in particular because the ruling departs from the case‑law of the Supreme Administrative Court, such case-law does not exist or the legal question to be solved has not been answered in uniform manner by the previous case‑law of the Supreme Administrative Court. If the ruling only is on a small fine, federal law may provide that the final complaint is inadmissible (see also answer to question 3.5.). A complaint with the Constitutional Court is possible if the violation of constitutionally guaranteed rights (fundamental rights) is alleged (see also answer to question 4.3.).
2.2.2. Internal organisation of administrative courts and composition of the bench of judges
Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)?
Administrative courts are and can be internally organized in chambers or divisions in order to divide the legal matters or join legal matters with an objective connection. The judges engaged at the court are then assigned to a certain chamber. For example, the Federal Administrative Court consists of several chambers, such as chamber for migration and asylum law, for social matters including employment of foreigners and unemployment insurance, for education, civil service and disciplinary law and for transport, environment, communication and economy.
The general rule at the administrative courts is the single judge decision. A panel decision consisting of three judges can be foreseen in matters such as procurement law, service and disciplinary law, which is for example the case at the Administrative Court of Vienna. At the Federal Fiscal Court most of the procedures are decided by a single judge, however, a panel decision is possible due to an application.
The Supreme Administrative Court consists of 22 panels, each consisting of five justices, where one presides over the panel (referred to as panel-president). Each member can also be part of more than one panel. The various fields of legal matters are assigned to the panels according to the allocation of business (Geschäftsverteilung), which is decided annually by the plenary assembly of the Court (§ 10 para. 2 sub-para. 2 VwGG) and can be modified if needed. The decisions of the Supreme Administrative Court are taken usually by panels of five, while less complex cases and administrative penal matters are handled by panels of three justices (§ 12 VwGG). Pursuant to § 13 VwGG a panel can decide by order to render a judgement by an enlarged panel, consisting of nine justices, if the decision would mean a deviation from former decisions of the Supreme Administrative Court or the legal issue to be resolved has so far been decided by the Supreme Administrative Court in various ways differing from each other.
2.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.)?
There aren’t any general mechanisms in Austria for the administrative judiciary to provide input or advice in the phase before legislation is drafted. The initiation to pass a new law often comes from outside the Parliament or the Government: various organisations and initiatives address their proposals to politicians.
Concerning the role of the Supreme Administrative Court of Austria, we would like to draw your attention to the fact that the Supreme Administrative Court of Austria does not have additional functions such as Conseil d’Etat, for example as legal advisor of the executive branch. Therefore, the Supreme Administrative Court of Austria does not participate in all legislative processes but only in those which would directly affect it. In case the Supreme Administrative Court is affected by a legislative proposal (often a ministerial proposal), the bill is sent to the Court within the procedure of expert review and the Court can present its views and criticism within a minimum period of six weeks, all of which are also published on the internet. The period of review depends on the matter, scope and urgency of the planned rule.
By means of the annual activity report, the Supreme Administrative Court has in the past proposed suggestions for improvement and recommendations. Furthermore, the Supreme Administrative Court has taken the initiative to draw attention to the legislator by means of an ongoing legislative process: The Constitutional Court repealed a provision of the Federal Act on Proceedings of Administrative Courts, which granted financial aid before the administrative courts only in administrative criminal proceedings but not in administrative proceedings. The legislator passed a new provision concerning the granting of financial aid and the Supreme Administrative Court delivered a statement in the framework of the expert review. In this statement, the Supreme Administrative Court not only supported the new provision extending the possibility of being granted legal aid, but also suggested the introduction of new provisions into the Supreme Administrative Court Act. All these suggestions were fully adopted by the legislator.
The aforementioned remarks also apply to the lower administrative courts.
2.2.4. Tools and documentary resources available to judges
The Supreme Administrative Court as well as the lower administrative courts have libraries with a wide range of national and international legal works, texts and documents as well as comprehensive documentation on legal sources. All of the Courts also have access to the legal information system (“RIS”), which on the one hand entails most of the legislation in various areas including provincial legislation and on the other hand decisions of all the administrative courts and the Constitutional Court (https://www.ris.bka.gv.at/default.aspx).
2.3. Status of administrative judges
How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence?
All administrative judges and all members of the Supreme Administrative Court are professional judges/justices, who are not bound by any instructions and subject, solely independent in exercising their judicial office and cannot be dismissed or transferred (Art. 87, 134 para. 7 B‑VG).
The President, the Vice-President and the other members of the administrative court of the provinces are appointed by the respective government of the province. As to the appointment of the judges, the provincial government must gather the proposal for nominations (three candidates per position) of the plenary assembly or a committee, which is to be elected among the members of the court (Art. 134 para. 2 B‑VG).
In case of the Federal Administrative Court and Federal Fiscal Court, the President, the Vice‑President and the other members are appointed by the Federal President based on a proposal by the Federal Government. As stated above, the Federal Government must gather the proposals for nominations (three candidates per position) of the plenary assembly or a committee of the respective court (Art. 134 para. 3 B‑VG).
In case of the lower administrative courts, the proposed nominations are non-binding. Contrary to that, the proposal for nominations for the Supreme Administrative Court (three candidates per position) are binding, however not the order in which the candidates were ranked. No proposition from the plenary assembly or a committee is necessary for the appointment of the President and the Vice President.
The judges of the aforementioned administrative courts must have completed a law degree or legal and political science studies and have at least five years of professional legal experience. The judges of the Federal Fiscal Court must have completed relevant studies and have at least five years of relevant professional experience. Similar incompatibility rules as for the appointment of the justices to the Supreme Administrative Court (see below) also apply for the appointment of the judges to the administrative courts with the exception of the prohibition of being a member of a political representative body.
Justices are appointed to the Supreme Administrative Court by the Federal President based on a proposal by the Federal Government. Unless the post to be filled is that of the President or the Vice‑President, this proposal must correspond to a list of three candidates drawn up by the plenary assembly of the Court. Each member of the Supreme Administrative Court must have completed a law degree or legal and political science studies and have at least ten years of practical legal experience. A quarter of all justices should be drawn from relevant institutions, preferably from administrative services, in Austria’s nine regions (Art. 134 para. 4 B‑VG).
Furthermore, strict incompatibility rules must be complied with. Members of the Federal Government or a Regional Government, of the Federal or a Regional Parliament, the European Parliament or any other political representative body (such as a local council, for example) are not eligible to become justices of the Supreme Administrative Court (Art. 134 para. 5 B‑VG). The President and the Vice‑President are not permitted to have held such elected office within the five years preceding their appointment.
3. Procedural rules before administrative courts
3.1 Types of plea
What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims?
The petitions an applicant may file before an administrative court pursuant to Art. 130 para. 1 B‑VG are: complaints filed against rulings by administrative authorities due to unlawfulness, complaints filed against the unlawful exercise of direct administrative power and compulsion, on the grounds of breach of duty to issue a decision by an administrative authority and against instructions pursuant to Art. 81a para 4 B‑VG in connection with supervisory school authorities. Due to a recent reorganisation of the organisation of the school authorities, this competence will be abolished from 1.1.2019. With regards to the further competences of the administrative courts see answer to question 2.2.1..
The procedural rules of the administrative courts with the exception of the Federal Fiscal Court are regulated in the Proceedings of Administrative Court Act (VwGVG). The procedural rules of the Federal Fiscal Court are stipulated in a separate act and differ from those of the VwGVG. Therefore, the subsequent answers concerning the proceedings of the administrative courts explain the general rules with references to VwGVG.
§ 28 VwGVG outlines the type of decisions an administrative court can - and has to - issue over the petitions mentioned above. Based on a complaint filed against a ruling of an administrative authority due to unlawfulness of the contested ruling the administrative court can reject a complaint on formal grounds, annul the decision and remand it to the administrative authority or issue a decision on the merits, which replaces the decision of the administrative authority. If a case is remanded to the administrative authority in a court order, said authority is bound by the legal opinion of the administrative court.
In case of a complaint filed against the unlawful exercise of direct administrative power and compulsion the administrative court can reject the complaint on formal grounds, dismiss the complaint as unfounded or rule that the act, which was contested, was unlawful.
Concerning cases of breach of duty to issue a decision within the time limit as defined by the applicable law, the administrative court has (if the complaint does not have to be rejected on formal grounds) to either decide on the merits or, under certain circumstances, can limit its decision to ruling on the fundamental legal questions and remand the case to the administrative authority, who has to issue a decision within no more than eight weeks. If the administrative authority does not comply with aforementioned order the administrative court has to issue a decision on the merits itself.
If the authority had to exercise discretion in its decision, the administrative court shall, unless it has to decide on the merits of the case and unless the complaint is to be dismissed for formal reasons or on the merits, set aside the contested administrative decision by means of an order and remand the matter to the authority for the issue of a new administrative decision. In doing so, the authority shall be bound by the legal evaluation on which the administrative court based its order.
When a complaint against instructions pursuant to Art. 81a para. 4 B-VG in connection with supervisory school authorities is lodged, the administrative court can again reject the complaint on formal grounds, dismiss the complaint or annul the order.
Administrative courts, however, do not have the competence to rule over compensatory claims; these fall under the jurisdiction of the ordinary courts.
For the types of plea admissible before the Supreme Administrative Court see Question 1.3.
The Proceedings of Administrative Court Act (VwGVG) is available online in English:
3.2. Emergency procedures
Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.)?
There are no general emergency procedures in place in administrative (procedural-) law, however, in public procurement law there is the possibility to file for a preliminary injunctions with the competent court.
Most complaints filed with an administrative court automatically grant the contested decision suspensive effect. However, exceptions can and have been foreseen by law.
An authority can exclude the suspensive effect by means of an administrative decision if, after having considered the affected public interests and the interests of other parties, the early enforcement of the contested administrative decision or the exercise of the authorisation granted by the contested administrative decision is urgently required because of imminent danger. To the extent possible such an exclusion shall be included in the administrative decision issued on the merits of the case. Furthermore, there is a general exception from the suspensive effect concerning cases in asylum matters. Complaints filed in asylum cases only have suspensive effect if granted by the Federal Administrative Court (for further reference see § 16 BFA-VG: https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20007944, only available in German).
3.3. Procedural principles before administrative courts
What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?
The Proceedings of Administrative Courts Act (VwGVG) governs the procedures at the level of the administrative courts, which in turn also have to apply the General Administrative Procedure Act 1991 (AVG) as well as any relevant special procedural law the administrative authority had to apply.
The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union ("the Charter") form an integral part of Austrian law and are part of the Austrian constitutional law. Therefore all fundamental principles as outlined there (eg. Art. 6 ECHR or Art. 47 of the Charter) are directly applicable and fulfilled by the administrative courts.
The relationship between judges and litigants is governed by the fundamental principle of judicial independence. Judges are independent and impartial. To ensure this, independence and impartiality judges (and justices) are guaranteed in the freedom not to comply with any instructions, as well as in their right not to be dismissed or transferred to another position.
The General Administrative Procedure Act 1991 (AVG) is available online in English:
3.4. Reference standards for the control exercised by admistrative judges
n relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?
The administrative courts and the Supreme Administrative Court review the unlawfulness of administrative acts/decisions in relation to federal or provincial law and regulations in the subject matter. They are not competent to review the respective acts/decisions or the legal provisions applicable in the specific case in regards to their conformity with constitutional law (see. Art. 130 para. 5 B‑VG concerning administrative courts and Art. 133 para. 5 B‑VG with regards to the Supreme Administrative Court). The constitutional judicial review and judicial review of international law regarding the lawfulness (constitutionality or legality) of state treaties is exclusively under the jurisdiction of the Constitutional Court (Art. 139, 140 and 140a B‑VG). However, all administrative and ordinary courts may apply to the Constitutional Court for the repeal of a provision, which is to be applied in a case pending with that court, in case it has doubts about the constitutionality of that specific legal provision.
As to the review of the conformity of laws and regulations with international treaties, especially the ECHR and the Charter, both of which entail constitutionally guaranteed rights and are therefore a scale for the review of constitutionality of national provision, the Constitutional Court has the sole competence. In case of judicial review of international law with regards to state treaties, the procedures to be applied and the right to apply for review depend on the status of the treaty at national level and are subject to the rules governing the review of laws and regulations. However, the Constitutional Court is not in a position to invalidate a treaty that has been found to be against the law; it can only establish its unconstitutionality or unlawfulness. A treaty that has been pronounced unconstitutional or unlawful may no longer be applied by the entities of the state. The Constitutional Court may set a deadline for such a decision to take effect in order to permit a “repair” of the treaty without interfering with Austria’s obligations under international law.
3.5. Scope and nature of administrative judicial review
May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?
By virtue of Art. 130 para. 1 B‑VG and as stated in the answer to the question 2.2.1. the administrative courts decide on complaints against rulings by administrative authorities due to unlawfulness, against the unlawful exercise of direct administrative power and compulsion, on the grounds of breach of duty to issue a decision by an administrative authority and against instructions pursuant to Art. 81a para 4 in connection with supervisory school authorities.
Pursuant to § 7 para. 1 VwGVG, a separate complaint against procedural orders in administrative proceedings is inadmissible. Such orders can only be contested in the complaint filed against the administrative decision on the merits. Moreover, a complaint is no longer admissible, if a party expressly waived his/her right to file a complaint after the formal notification or pronouncement of an administrative decision. As stated in Art. 130 para. 3 B‑VG, the administrative courts (with exception of administrative penal matters and matters within the jurisdiction of the Federal Fiscal Court) cannot decide on the unlawfulness of administrative acts/decisions in case the administrative authority is allowed to apply discretion by law and has done so pursuant the law (see also answer to question 3.1.).
According to Art. 133 para. 1 B‑VG the Supreme Administrative Court adjudicates on final complaints against a decision of an administrative court due to unlawfulness, on motions to set a deadline due to the breach of duty to issue a decision by an administrative court and on conflicts of competence between administrative courts or between an administrative court and the Supreme Administrative Court. Furthermore, federal or provincial law may stipulate other competences for the Supreme Administrative Court regarding decisions on requests by an ordinary court to establish the unlawfulness of an ordinance or of an administrative court decision.
As stated above with regards to administrative courts, the Supreme Administrative Court also cannot adjudicate the unlawfulness of an administrative decision if the respective court has applied discretion pursuant to the law (Art. 133 para. 3 B-VG).
A final complaint against the ruling of an administrative court is admissible pursuant to Art. 133 para. 4 B‑VG, if the solution depends on a legal question of fundamental importance, in particular because the ruling departs from relevant prior decisions of the Supreme Administrative Court, such case law does not exist or the legal question to be solved has not been answered in uniform manner by the previous case law of the Supreme Administrative Court. If the ruling entails only a small fine, federal law may provide that a final complaint against such decision is inadmissible. § 25a para. 2‑4 VwGG entail a list of acts, which are exempted from the control of the Supreme Administrative Court. § 25a para. 2 VwGG states, for example, that a final complaint is inadmissible against orders regarding preliminary decisions by an administrative court, against orders concerning the dismissal of late or inadmissible request for submission and concerning legal aid decisions by an administrative court. Para. 3 leg. cit. states that a separate complaint is inadmissible against procedural orders. Such orders can only be contested in the final complaint filed against the decision concluding the legal matter. Furthermore, § 25a para. 4 leg.cit. foresees in an administrative penal or a fiscal penal matter that if a fine up to 750 euros and no prison sentence was allowed to be imposed and a fine up to 400 euros was actually imposed in the decision, a final complaint due to infringement of rights is inadmissible.
Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?
The general scope of review of the administrative courts is laid down in the provision § 27 VwGVG, which foresees that unless the decision of an administrative authority is unlawful due to lack of jurisdiction, the administrative court shall review the decision, the contested exercise or the contested instruction based on the complaint (§ 9 para. 1 sub-para. 3 and 4 leg. cit.) or on the declaration concerning the scope of the complaint (see also § 9 para. 3 leg.cit.).
Generally, the principle of interdiction of novation does not apply to the administrative proceedings of the administrative courts and is therefore not foreseen in VwGVG. However, the BFA Procedures Act (BFA-VG), which regulates the proceedings of the Federal Office for Immigration and Asylum, entails a provision restricting the submissions in the appeals proceedings before the Federal Administrative Court (partial interdiction of novation, § 20 BFA-VG). According to the case law of the Supreme Administrative Court regarding § 20 BFA-VG, the (partial) interdiction of novation in the appeals proceedings require an intention of abuse, in particular abusive extension of the proceedings, which furthermore have to be elaborated in detail by the Federal Administrative Court. However, apart from the aforementioned restriction the Federal Administrative Court is obliged to examine and rule over submissions, which are put forward during the appeals proceedings.
As already mentioned in the previous answers a final complaint against the ruling of an administrative court is admissible, if the solution depends on a legal question of essential importance. In this context the Supreme Administrative Court examines the decision of the administrative court with regard to the unlawfulness of its decision, which is claimed by the complainant in the reasons of the complaint or in the declaration on the scope of appeal.
Furthermore, the principle of interdiction of novation applies to the procedure of the Supreme Administrative Court. This principle is derived from § 41 VwGG: The Supreme Administrative Court shall, unless it finds unlawfulness due to lack of jurisdiction of an administrative court or due to violation of procedural rules (§ 42 para. 2 sub-paras. 2 and 3 VwGG), review the contested decision or order on the grounds of the facts assumed by the administrative court within the scope of the reasons of the complaint (§ 28 para. 1 sub-para. 4 leg.cit.) or within the scope of the declaration on the scope of appeal (§ 28 para. 2 leg. cit.). If it finds that for the decision on the unlawfulness of the contested decision or order there may be relevant reasons within the scope of the reasons of the complaint or within the scope of the declaration on the scope of appeal, which so far have not been notified to one of the parties, the parties shall be heard and, if necessary, the hearing adjourned. In other words, the Supreme Administrative Court examines the legality of decisions of administrative courts based on the factual and legal situation at the time when the examined decision was issued by the administrative court.
With regards to the application of discretion and the review of administrative acts and decision in such cases see the answer to the first sub-question.
3.6. Dissident opinions
When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?
No, the concept of dissident opinions does not exist in Austrian administrative procedural law.
3.7. Alternative methods of dispute resolution
Are there alternative dispute resolution methods? Please specify.
No, there aren’t any alternative methods of dispute resolution.
3.8. Digitised procedures
Is there a specific digital procedure for the submission of claims?
Digital conduct of proceedings have been very much accelerated in Austria and is well advanced.
There are several ways in which digital forms of legal proceedings are used in Austria, for example by means of electronic legal transactions. Administrative courts of the provinces as well as the Federal Administrative Court and Federal Fiscal Court are also using the electronic legal transaction system. Generally speaking, the rules of procedures of the administrative courts can foresee different possibilities for the submission of claims by electronic means and different conditions, such as determination of office hours. Therefore, the possibilities and the conditions for the submission of claims vary from an administrative court to an administrative court.
As to the Supreme Administrative Court, lawyers, tax consultants and accountants are - depending on technical feasibility - obliged to participate in the electronic legal transactions. In case they do not lodge written pleadings by means of the electronic legal transactions, they have to attest that the technical possibilities to use the electronic legal transactions are not available. Such an obligation does not exist for authorities and individuals.
It is, however, possible for individuals to lodge applications for legal aid in connection with petitions for extraordinary review by means of electronic forms using certain tools of e‑government for identification such as mobile phone signature or the citizen card. Pursuant to § 13 AVG, which generally regulates submissions to administrative authorities and also foresees in para. 2 that written submissions may be communicated to the authority in any technical feasible form, by e‑mail however to the extent that no specific means of communication are provided for the electronic communication between the authority and the persons involved. The regulation for the Supreme Administrative Court concerning electronic legal transactions states in its § 1, that e‑mail is not a permissible form to electronically lodge written pleadings at the Supreme Administrative Court. Similar regulation can also be found for the Federal Administrative Court, whereas the submission of a claim via e‑mail is possible at the Administrative Court of Vienna.
Furthermore, the rules of procedure of the Federal Administrative Court state in its § 20 para. 2 that written pleadings can only be lodged within the office hours (as stated in § 20 para. 1 of the Rules of Procedure of the Federal Administrative Court) in a physical way (postally, personally or by means of a messenger) or electronically at the seat of the Federal Administrative Court in Vienna. The Supreme Administrative Court has decided that an appeal lodged with the Federal Administrative Court by means of electronic legal transactions on the last day of the appeal period after the office hours of the Federal Administrative Court is delayed. Contrary to the pictured situation at the Federal Administrative Court, there are no restrictions concerning office hours and lodging of appeals by means of electronic legal transactions with the Supreme Administrative Court.
4. Effects and execution of judgments
4.1. Powers of administrative judges
May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?
See answer to question 3.1.
There are no further powers of administrative judges concerning power of injunction or penalties to compel the administration.
4.2. Impact and authority of administrative judgments
To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two options?
In Austria, rulings issued by administrative authorities have binding effect only concerning the parties and the case involved and can be executed immediately. However, if a complaint with an administrative court is filed, this application automatically grants suspensive effect on the contested decision. However, exceptions can and have been foreseen by law (eg. asylum proceedings). This means that complaints filed in these matters do not automatically grant suspensive effect. The decisions of the administrative courts are - generally speaking - binding on the parties involved in the case and can be executed immediately. Complaints filed with the Supreme Administrative Court and the Constitutional Court do not have suspensive effect, this however can be requested by the parties in the application. If the Supreme Administrative Court has granted a final complaint, the Administrative Courts and authorities are obliged to immediately establish, with the legal means available to them, the legal situation corresponding to the legal opinion of the Supreme Administrative Court in the relevant legal matter.
As a result of this principle a case cannot be decided anew by an administrative authority (and following this decision by an administrative court) as long as the parties, the underlying matter giving rise to the claim and the applicable laws have not changed.
May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged?
The decisions of administrative courts may be appealed within a timeframe of six weeks at the Supreme Administrative Court under the conditions outlined in question 1.3.
Furthermore, decisions of administrative courts may be appealed within six weeks at the Constitutional Court if the individual concerned claims either the violation of a constitutionally guaranteed rights and/or the violation of his/her personal rights through the application of an unconstitutional law or an unlawful regulation. The same decision can be appealed at the Supreme Administrative Court as well as the Constitutional Court at the same time. While the standard of review of the Constitutional Court is constitutional law, the Supreme Administrative Court controls the compliance of administrative decisions with laws not considered constitutional law. Decisions of the Supreme Administrative Court and the Constitutional Court are not subject to further appeal.
There is, however, also the possibility to lodge a complaint to the Austrian Ombudsman Board (AOB), which is not an appeal. The AOB is responsible for monitoring the public administration and assists citizens as well as companies and associations if they feel they have been treated unfairly by an Austrian administration authority, also in the event that a court fails in its duties. The complaint may involve an inactivity of the authority, a legal opinion that does not comply with the respective laws, potential injustices, cases of maladministration or also an act of gross negligence. Complaints can only be made against Austrian administrative bodies. However, it is not possible for an administrative procedure or a legal procedure to be pending at the same time as the complaint, and any appeals have to have been exhausted. It is only possible to lodge a complaint against courts if the reason for the complaint relates to the excessive duration of the procedure. The AOB reviews every complaint and assesses whether there has been dysfunction in the administration. However, lodging a complaint with the AOB doesn’t always lead to investigative proceedings. If investigative proceedings discover maladministration, this maladministration will be expressly determined by the AOB. In this case the AOB will contact the relevant authority with a specific recommendation for action. The authority then has eight weeks to implement this recommendation or to state its case for why it is not following the opinion of the AOB. If the authority immediately corrects its error after the intervention of the AOB, the investigative proceedings will be stopped. The maladministration declarations can also be found in reports from the AOB to Parliament or in the reports from the AOB to the relevant provincial parliaments. If the authority concerned has acted correctly based on the applicable laws, a complaint shall be considered unjustified.
5.1. Number of cases and time taken to judge cases (over the last 5 years)
The Supreme Administrative Court of Austria has only statistical data regarding the final complaints, which have been submitted to the Supreme Administrative Court.
In 2017, 7.300 new legal matters were submitted to the Court, 2.100 were still pending from the previous years and 6.600 were concluded. At the end of 2017, 2.800 were still pending. The approximate duration of the proceedings at the Supreme Administrative Court was 4,6 months.
The new legal matters, which were submitted to the Court, were approximately 5.100 in 2016, 4.600 in 2015, 3.900 in 2014 and 4.970 in 2013.
The concluded cases were 5.500 in 2016 with an approximate duration of 6,9 months, 5.400 in 2015 with an approximate duration of 8,9 months, 5.500 in 2014 with an approximate duration of 10,6 months and 5.615 in 2013 with an approximate duration of 16,7 months.
5.2. Number of administrative judges
The Supreme Administrative Court of Austria currently consists of the President, the Vice-President, thirteen Panel-Presidents and 54 Justices.
The number of judges (including the Presidents and Vice-Presidents) engaged at the lower administrative courts are as follows:
- Federal Administrative Court: 219
- Federal Fiscal Court: 213
- Administrative Court of Vienna: 85
- Administrative Court of Burgenland: 10
- Administrative Court of Upper Austria: 36
- Administrative Court of Lower Austria: 55
- Administrative Court of Styria: 37
- Administrative Court of Salzburg: 30
- Administrative Court of Carinthia: 21
- Administrative Court of Tirol: 36
- Administrative Court of Vorarlberg: 15
5.3. Economic and financial data (budget, etc.)
In 2018 the Supreme Administrative Court was allocated a budget of approximately 20,5 million Euro and has, on average, 45 research associates assisting the justices. Since the Supreme Administrative Court of Austria is a court only charged with review of administrative decisions all of its justices work in administrative law.