Under the existing system in Austria, legal review against decisions and acts of authorities is normally granted by one or more - higher ranked - authorities. Only afterwards do the legal subjects have access to the Constitutional Court (Verfassungsgerichtshof) or the Supreme Administrative Court (Verwaltungsgerichtshof), both of which are restricted in their power to scrutinize the contested administrative decisions. However, in particular the European Human Rights Convention (EHRC) has forced Austria to introduce more and more independent bodies or authorities that include judicial elements for the review of administrative actions or non-actions. The most widely known of such bodies are the Independent Administrative Tribunals (Unabhängige Verwaltungssenate) in the federal states. In the end, more than one hundred of such authorities with quasi-powers of a court came into being. The Supreme Administrative Court was permanently congested with pending complaints, leading the average duration for the proceedings to rise to more than 20 months.
Two-stage administrative jurisdiction and "9+2-model"
After more than twenty years of reform discussions, a completely reorganised system of administrative legal review was established in 2012 and 2013, mainly through two major legislative packages (Federal Law Gazette I 2012/51 and I 2013/33). This reform will become comprehensively effective with 1 January 2014. Austria's federal legislator adopted a so-called "9+2 model": One Federal Administrative Court (Bundesverwaltungsgericht), one Federal Fiscal Court (Bundesfinanzgericht), and nine Administrative Courts in the federal states (Verwaltungsgerichte).
In principle, only one administrative instance will exist in the future, but there will be a two-staged administrative jurisdiction: Decisions or other administrative acts of direct enforcement (Akte unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt), but also failures to take a decision, can be challenged before one of the eleven administrative courts. There will still be two-stage level of appeal within the administration only for some matters at the municipal level, such as building procedures.
As a rule, the Federal Fiscal Court will have jurisdiction where public taxes and duties are enforced by federal fiscal authorities, and the Federal Administrative Court will be competent for federal law that is enforced directly by federal authorities. All other matters are referred to the Administrative Courts in the federal states. The federal legislator and the federal states may provide for exemptions from these principles. Hence, it is vital to take into account the specific provisions on the jurisdiction in the relevant federal laws and the laws of the federal states.
The courts will take their decisions through individual judges, in specific cases through senates. The administrative judges will be supported by legal clerks (Rechtspfleger), who may– to a limited extent and subject to review by the judge – make their own decisions.
Restricted Access to the Supreme Administrative Court
One can file a complaint to the Constitutional Court against judgments from the administrative courts, in particular for alleged infringements of constitutionally-guaranteed rights or the application of an unconstitutional law or an unlawful ordinance.
However, access to the Supreme Administrative Court will be restricted to the review of legal questions of fundamental importance. The Administrative Courts will have to decide whether to admit access to the Supreme Administrative Court. Such an instrument of the limitation of access to the Supreme Court is already known in Austria's Code of Civil Procedure and aims at relieving the Court and, subsequently, significantly shortening the duration of proceedings before it.
Legal questions of fundamental importance are those questions in which the administrative courts deviate from the constant jurisprudence of the Supreme Administrative Court, where such jurisprudence is missing, or the legal question was addressed inconsistently in the past. In addition, cases involving minor administrative fines are not admissible for review before the Supreme Administrative Court.
New procedural rules
The federal legislator decided to foresee a specific procedural law, namely the Administrative Court Procedure Act (Verwaltungsgerichtsverfahrensgesetz), for the nine administrative courts in the federal states and the Federal Administrative Court. Proceedings before the Federal Fiscal Court are regulated by an amended version of the Federal Taxation Rules (Bundesabgabenordnung).
The new procedural rules for the administrative courts are based on the existing procedural law that was applied before the authorities and other bodies reviewing administrative decisions. Nevertheless, some important changes are to be observed, such as:
- The time to file an appeal against a decision was extended from two to four weeks. However, the deadlines for filing a complaint against administrative acts of direct enforcement and in case an authority fails to take a decision remain unchanged.
- The requirements on the complaint documents are more stringent: The expressed grounds and claims to a certain degree limit the scrutinizing power of the administrative courts.
- The competence for the authority of first instance to issue a preliminary decision on the complaint (Beschwerdevorentscheidung) was extended.
As before, there is no mandatory representation by an attorney and costs are only reimbursed when an administrative act of direct enforcement has been successfully challenged. Moreover, for investigation purposes before the administrative courts, the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) is to be applied unless specific rules exist. As under the law currently in place, specific rules exist for the proceedings in terms of administrative penal procedures.
An additional important change compared to the existing system: the Supreme Administrative Court may order an administrative court to catch up with a delayed decision within a reasonable period of time. However, the Supreme Administrative Court may not take the decision on its own instead of the administrative court.
Special provisions regarding the transition into the new system of administrative jurisprudence are contained in the Federal Constitutional Law and in a specific Act with transitional provisions (Verwaltungsgerichtsbarkeits-Übergangsgesetz). Amongst other matters, that Act explicitly provides for unique extended deadlines for the filing of certain complaints to the Supreme Administrative Court and the Constitutional Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.