Various Procedural Frameworks for First-Instance Proceedings

In Austria, administrative courts review sovereign acts carried out by authorities. The Federal Constitutional Act (B-VG) designates the Administrative Courts Procedure Act (VwGVG) as the primary procedural law. However, exceptions exist, such as the Federal Fiscal Code (BAO) for tax matters.

If the VwGVG does not provide specific rules, the General Administrative Procedure Act (AVG) and the Administrative Penal Act (VStG) apply as subsidiary laws. Additionally, subject-specific procedural regulations may govern certain cases. A comprehensive understanding of administrative court procedures also requires consideration of relevant provisions in the B-VG and the Supreme Administrative Court Act (VwGG).

Thus, a full grasp of administrative court procedure requires knowledge of:

• subject-specific procedural provisions;
• subsidiary administrative procedural laws (AVG and VStG);
• constitutional provisions on administrative jurisdiction; and
• relevant provisions of the VwGG.

Challenges in Municipalities’ Own Jurisdictions

If an administrative authority issues a decision within a municipality’s own jurisdiction – such as a mayor’s ruling on a building law matter – the decision may first be challenged before the municipal council rather than an administrative court. In such cases, the AVG, rather than the VwGVG, governs the proceedings. In proceedings against the decision of the municipal council, however, the VwGVG is applicable.

Additional Procedural Frameworks for Final Appeals

In Austria, the Constitutional Court and the Supreme Administrative Court serve as the ultimate decision-makers on administrative court rulings. Each court follows its own procedural law:

• the Constitutional Court Act (VfGG) governs proceedings before the Constitutional Court; and
• the Supreme Administrative Court Act (VwGG) governs proceedings before the Supreme Administrative Court.

Judicial Review by Courts of Law

As of 1 January 2024, Austria has nine provincial administrative courts and two federal administrative courts: the Federal Administrative Court and the Federal Fiscal Court.

Under Article 130 paragraph 1 B-VG, administrative courts adjudicate complaints regarding:

• notices issued by administrative authorities on the grounds of unlawfulness;
• the exercise of direct administrative command and coercive power due to unlawfulness; and
• failure of an administrative authority to issue a required notice.

Challenges in Municipalities’ Own Jurisdictions

In certain cases within a municipality’s own jurisdiction, a complaint must first be submitted to the municipal council before it can be brought before an administrative court (as outlined in 1.1 General Rules or Specific Regimes?).

Complaints Against Notices

As outlined in 1.2 Forum for Judicial Review, administrative courts in Austria primarily review notices issued by administrative authorities. The key factor in determining whether judicial review is possible, therefore, is the notice itself.

A notice, in this context, is a sovereign act of an administrative authority based on findings established through a legally regulated procedure. Notices represent the central, formalised legal form of individual administrative decisions (see 3.3 Government Decisions Affecting Sole Individuals) and can only be issued by administrative authorities.

Consequently, in Austria, the eligibility for judicial challenge depends on both:

• the status or nature of the entity issuing the decision (ie, whether it is an administrative authority); and
• the nature of the decision or action being contested.

Other Complaints

In addition to complaints against notices, administrative courts also handle:

• complaints against the exercise of direct administrative command and coercive power; and
• complaints regarding an administrative authority’s failure to issue a required decision (see 1.2 Forum for Judicial Review).

Unlike complaints against notices, neither of these cases involves a formal administrative notice that could be challenged. Instead, the only legal basis for bringing such complaints before an administrative court is the involvement of an administrative authority in the disputed action or omission.

The Constitutional Court

In Austria, the Constitutional Court is the sole authority responsible for reviewing the constitutionality of laws (Article 140 B-VG).

Application by a Court

Under Article 135 paragraph 4 B-VG, Austrian courts must request the Constitutional Court to repeal legal provisions they deem unconstitutional – provided these provisions are applicable in an ongoing case. While parties to the case cannot directly demand such a request, they may suggest it to the administrative court.

Appeal Against an Administrative Court Decision

Decisions of administrative courts can be appealed to the Constitutional Court (Article 144 paragraph 1 B-VG) if a party claims their rights were violated by an unconstitutional law. If the Constitutional Court finds the concern valid, it initiates a constitutional review.

Application by an Individual

Individuals may apply directly to the Constitutional Court if a law violates their rights without prior court proceedings or an official notice (Article 140 paragraph 1 letter d B-VG). However, strict admissibility requirements often result in the rejection of such applications.

Scope of Judicial Review

The Constitutional Court reviews legal provisions based on federal constitutional law. When assessing provincial laws, it also considers provincial constitutional law.

Further Powers of the Constitutional Court

Beyond its authority to review the constitutionality of laws, the Constitutional Court has another exclusive competence: it determines the legality of ordinances (Article 139 paragraph 1 B-VG).

Similar to the constitutional review of laws, proceedings to assess the legality of an ordinance may be initiated by:

• an administrative court;
• an individual; or
• the Constitutional Court itself, following an appeal against an administrative court’s decision (see 3.1 Challenging Primary Legislation).

Scope of Judicial Review by the Constitutional Court

Unlike the review of laws, which is based on constitutional law, the review of ordinances is assessed against all higher-ranking legal provisions, including superior ordinances.

Point of Reference: Notice

The primary basis for the judicial review of administrative decisions by administrative courts is the notice (see 1.2 Forum for Judicial Review). Another key characteristic of a notice (see 2.1 Determining Susceptibility) is its individual nature – every decision must have at least one addressee. However, whether a decision applies to one or multiple individuals is irrelevant to its legal status.

As a result, notices affecting a single person can be challenged before an administrative court – a scenario that occurs frequently in practice.

Private Sector Administration

In Austria, administration is divided into sovereign administration and private sector administration. Sovereign administration involves the exercise of state authority, whereas private sector administration operates using legal forms available to private individuals, such as rental or purchase agreements.

Common examples of private sector administration include:

• auxiliary fiscal transactions (eg, purchasing IT systems for public administration);
• grant allocation; and
• civil law agreements between public bodies and individuals.

Jurisdiction: Ordinary v Administrative Courts

In relation to jurisdiction:

• ordinary courts handle civil and criminal cases;
• administrative courts ensure the lawful conduct of public administration; and
• Article 94 paragraph 1 B-VG mandates a strict separation between the judiciary and administration.

No Administrative Court Jurisdiction

According to Article 130 paragraph 5 B-VG, cases falling under the jurisdiction of ordinary courts are excluded from administrative court review. Consequently, disputes arising from private sector administration agreements can only be challenged before ordinary courts.

Normative Force of Notices

The primary basis for the judicial review of administrative decisions is the notice (see 1.2 Forum for Judicial Review and 3.3 Government Decisions Affecting Sole Individuals). Notices are characterised, among other things, by their normative nature, as they regulate an administrative matter with binding legal force.

Normative Force of Direct Administrative Command and Coercion

Administrative courts also review complaints regarding acts of direct administrative command and coercion (see 1.2 Forum for Judicial Review). Such actions represent a normative encroachment on an individual’s legal sphere.

Normative Force of a Breach of the Decision-Making Obligation

Authorities can also be challenged for failing to issue a required decision (see 1.2 Forum for Judicial Review). A complaint based on a breach of the duty to decide concerns the failure to issue a sovereign act, which would otherwise carry normative force.

No Possibility to Challenge Non-Normative Measures

It follows that administrative court jurisdiction is limited to legal protection within sovereign administration. The Austrian administrative court system does not provide for challenges against governmental measures that lack normative force. Except, according to Article 130 paragraph 2 number 1 B-VG, the ordinary legislator can stipulate the possibility to challenge unlawful behaviour by an administrative authority in the execution of the law – the so-called behavioural complaint.

Delegation of Sovereign Powers

Legislation frequently involves private entities in law enforcement by granting them sovereign powers. This delegation allows private entities to issue notices or ordinances or exercise administrative command and coercion. A notable example is Austro Control GmbH, a corporation governed by private law that manages air traffic control under the Austrian Aviation Act.

Delegation creates a functional link to the government, meaning the entrusted activity remains classified as administration under the B-VG. However, if a private entity operates exclusively under private law, its actions no longer fall under administrative law.

Legal Recourse

Since delegated activities are still considered administrative, decisions or actions taken by these private entities can be challenged before administrative courts, just like those of public authorities (see 1.2 Forum for Judicial Review).

Fundamental Rights Obligations

Austria is a member of the European Convention on Human Rights (ECHR). Under Article 6 ECHR, everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Additionally, as a member of the European Union, Austria is bound by the Charter of Fundamental Rights of the European Union (CFR). Article 47 paragraph 2 CFR guarantees a fundamental right equivalent in substance to Article 6 ECHR. The establishment of administrative courts aims to uphold these legal requirements enshrined in Article 6 ECHR and Article 47 paragraph 2 CFR.

Constitutional Safeguarding

The rule of law is a fundamental principle of the Austrian Federal Constitution. It requires a system of legal obligations and controls, making the state inherently one that is based on the protection of rights.

This principle is reflected in the establishment of administrative courts. Article 130 B-VG explicitly assigns administrative courts the responsibility of reviewing the legality of administrative acts, thereby ensuring that administrative jurisdiction is safeguarded at the constitutional level.

No Exclusion of Administrative Jurisdiction by Contract

Given this legal framework, administrative jurisdiction cannot be excluded by means of a private law contract.

Permissible Deviations by Law

However, legal provisions may allow recourse to ordinary courts instead of administrative courts (for the distinction, see 3.4 Agreements Between Private Entities and Public Bodies). Article 94 paragraph 2 B-VG authorises the legislator, at federal or provincial level, to redirect legal recourse from an administrative authority to an ordinary court in specific cases instead of requiring an appeal before an administrative court.

Violation of Own Rights

Anyone claiming their rights have been violated by an administrative decision can file a complaint with an administrative court. This right is based on the potential violation of subjective rights, meaning the claimant must be directly affected by the decision. To challenge a notice, the complainant must be a party to the administrative proceedings, which requires the existence of subjective public rights (Section 8 AVG).

Violation of the Duty to Decide

Article 132 paragraph 3 B-VG allows parties claiming entitlement to a decision to file a complaint for a breach of the duty to decide. The complainant must have a legal right to the decision, typically being the main party in the proceedings.

Federal Complaint

Under Article 132 paragraph 1 number 2 B-VG, the federal minister can also file a complaint against an administrative authority’s decision if legislative competence rests with the federal government, but the enforcement is in the competence of the provinces.

Formal Parties

Formal parties represent public interests but may not assert subjective rights. Article 132 paragraph 4 B-VG allows the legislator to grant formal parties the right to file a complaint, potentially extending this right to any individual as provided by law.

Right to File Complaints for Charities and NGOs

Under Article 132 paragraph 4 B-VG, the legislator can designate non-governmental individuals or groups, such as citizens’ initiatives or specific NGOs, as formal parties and grant them the right to file a complaint with an administrative court. For example, recognised environmental organisations have the right to file complaints under the Environmental Impact Assessment Act.

No Possibility to Join Proceedings

The right to file a complaint with an administrative court is tied to the violation of one’s own rights or the obligation to decide (see 6.1 Requirements for Administrative Law Challenges). Austrian administrative law does not permit a third party to join an existing complaint. Each individual must file a separate complaint.

However, multiple individuals can file a joint complaint if all are entitled to do so in the same matter. If one person lacks the right to complain, the court will reject their complaint but will proceed with the others.

Administrative Procedure Consortium

If multiple applicants seek a permit from an authority, and only one can be granted, they may form an administrative procedure consortium. The authority will conduct a joint procedure and issue a decision granting the permit to one applicant while rejecting the others. Those receiving a negative decision may file a complaint with an administrative court, which will then decide individually for each complainant.

Parties in Administrative Court Proceedings

In administrative court proceedings concerning complaints against administrative decisions, the following individuals are considered parties, alongside the complainant:

• all persons who had party status in the proceedings before the administrative authority or should have been parties due to legal claims or interests (Section 17 VwGVG in conjunction with Section 8 AVG); and
• the authority that issued the contested decision (Section 18 in conjunction with Section 9 paragraph 2 number 1 VwGVG).

Different Types of Parties

Under Section 8 AVG, parties are natural or legal persons involved based on a legal entitlement or interest. Austrian administrative law recognises several party categories.

• Main party – initiates proceedings by submitting an application.
• Legal party – has party status by statutory provision.
• Formal party – granted party status by law but does not participate based on subjective material rights.
• Administrative party – administrative bodies with such transferred party rights.

Scope of Participation

The scope of participation varies as follows:

• the main party is the party that filed the act initiating the proceeding or that is subject to a loss of rights or an imposed obligation, while other parties are so-called secondary parties – main parties can participate in all issues relevant to the case, while secondary parties have more limited participation;
• legal parties can assert specific subjective rights defined by law; and
• formal and administrative parties only participate to the extent of their public interest or objective rights.

Principle of Ex Officio Proceedings

In Austrian administrative proceedings, the principle of ex officio proceedings applies (Section 39 paragraph 2 AVG in conjunction with Section 17 VwGVG). This means that both the administrative authority and the court are responsible for independently gathering all necessary evidence to establish the factual basis for a decision. They are not bound by the parties’ arguments and must determine which facts need to be proven.

Principle of Arbitrary Order

The principle of arbitrary order also applies (Section 39 paragraph 2 AVG in conjunction with Section 17 VwGVG). This grants the authority and court discretion over the course of the investigation, including deciding which facts to prove, which evidence to collect, and the order in which evidence is presented. Parties do not have a legal right to dictate the investigative procedure.

Duty of the Parties to Participate

Despite the ex officio and arbitrary order principles, parties are still required to participate in establishing the facts. They must contribute to the investigation by providing substantiated pleadings. However, the administrative authority and court are obligated to inform the parties of any missing information and request additional evidence if necessary.

No Additional Methods for Establishing the Facts of the Case

In Austrian administrative and administrative court proceedings, the principle of ex officio proceedings, the principle of arbitrary order, and the parties’ duty to participate collectively ensure that the administrative authority and the court can fully establish the facts required for their decision.

Principle of Non-Limitation of Evidence

The AVG, which applies subsidiarily in administrative and administrative court proceedings (see 1.1 General Rules or Specific Regimes?), specifies types of evidence such as certificates, witnesses, hearings of parties, expert witnesses, and site visits. However, the principle of unlimited evidence applies (Section 46 AVG in conjunction with Section 17 VwGVG), meaning evidence is not exhaustively listed by law. Authorities and administrative courts may consider any evidence that helps establish the facts.

Principle of Immediacy

In administrative court proceedings, the principle of immediacy (Section 25 paragraphs 6 and 7 VwGVG) requires decisions to be based on what occurred during the public hearing. Exceptions include the admissibility of evidence not directly obtained during the hearing but allowed for read-out. Evidence should be discussed in the context of the various procedural positions, giving the judge a direct, personal impression.

Oral Hearing

Section 24 VwGVG mandates a public hearing, which can only be waived under specific conditions. Evidence is generally gathered during the hearing to allow for contradictory examination. The court is responsible for posing questions to the parties and witnesses, and the parties must have the opportunity to:

• present their case;
• question witnesses;
• comment on the facts and applications presented by others; and
• respond to administrative investigations.

Preliminary Proceedings and Preliminary Complaint Decision

Complaints against the decision of an administrative authority must be submitted to the authority that issued the decision (Section 12 VwGVG). The administrative authority then has the right to resolve the complaint through a preliminary decision (Section 14 VwGVG).

No Other Preliminary Requirements

Apart from the above, Austrian administrative procedural law does not impose any additional preliminary requirements that must be fulfilled before lodging a complaint.

Challenges in Municipalities’ Own Jurisdictions

In some cases, within a municipality’s own jurisdiction, there is an obligation to first lodge a complaint with the municipal council before appealing to an administrative court (see 1.1 General Rules or Specific Regimes? and 1.2 Forum for Judicial Review). Only after the municipal council has issued its decision can a complaint be filed with an administrative court.

Mandate Notice

Generally, the relevant facts must be established through an investigation procedure before a decision is issued (Section 56 AVG). However, in certain cases, the authority is permitted to deviate from this principle and issue a decision without prior investigation (Section 57 AVG):

• if the notice is intended to impose monetary payments based on a standard set by law, statute, according to tariff; or
• in situations involving imminent danger, where measures cannot be delayed.

Notices issued in this manner are known as “mandate notices”. An objection can be lodged with the authority that issued the decision within two weeks (Section 57 paragraph 2 AVG). Afterwards, the authority must initiate an investigation procedure. A complaint to an administrative court can only be filed after the authority has carried out the investigation and issued a notice.

Administrative Courts

The general time limit for filing a complaint against a decision of an administrative authority based on illegality is four weeks. This period begins on the day the decision is served on the complainant or the day of its oral announcement.

In contrast, the time limit for lodging a complaint against acts of direct administrative command and coercive power based on illegality is six weeks (Section 7 VwGVG). This period begins when the affected person becomes aware of the exercise of such powers.

Constitutional Court and Supreme Administrative Court

The time limit for filing an appeal against a decision of an administrative court to the Constitutional Court or the Supreme Administrative Court is six weeks (Section 82 paragraph 1 VfGG; Section 26 paragraph 1 VwGG). This period begins upon the service of the administrative court’s decision to the concerned party or its oral pronouncement.

Content of the Complaint

All complaints to administrative courts must include the following information, in accordance with Section 9 paragraph 1 VwGVG:

• identification of the contested decision or exercise of direct administrative command and coercive power;
• the name of the authority being challenged or an indication of which institution has taken the measure;
• the reasons for alleging unlawfulness;
• a request for the desired outcome; and
• information regarding the timeliness of the complaint.

If any of these elements are missing, the authority must issue a rectification order. If the deficiency is not corrected within the specified time, the authority has the right to reject the complaint.

No Evidence Required

In addition to the required content, no further information or evidence is necessary for the administrative court to initiate complaint proceedings. Following this, the principles of ex officio proceedings and arbitrary order apply (see 8.1 Disclosure/Discovery and 8.3 Live Evidence and Cross-Examination). The provision of evidence is not a prerequisite for the admissibility of a complaint.

Submission of the Complaint: Grounds for Alleging Unlawfulness

The grounds on which the allegation of illegality is based must be clearly stated in the complaint to the administrative court. The grounds for the complaint involve the party explaining why they are contesting the decision, either in terms of the facts assumed by the authority or the legal assessment. The complaint must clearly outline, even if the grounds are not ultimately valid, why the decision is being challenged and how the party believes they can defend their position.

A general claim that the decision is unlawful does not meet this requirement. To satisfy this, at a minimum, the complaint must assert an error that would make a different decision a reasonable possibility.

Evidentiary Proceedings: Requests for Evidence

If a complaint is admissible, the administrative court will generally initiate investigative proceedings, with a primary focus on the public oral hearing (see 8.3 Live Evidence and Cross-Examination). During the investigation process, the parties are free to submit motions for evidence or present evidence (Section 43 paragraphs 2 and 4 AVG, in conjunction with Section 17 VwGVG). According to Section 46 AVG in conjunction with Section 17 VwGVG, any evidence that is relevant to establishing the facts and appropriate to the case at hand may be considered. (See 8.3 Live Evidence and Cross-Examination for more details.)

Preliminary Proceedings

As mentioned earlier in 9.1 Preliminary Requirements, complaints against decisions made by administrative authorities must be submitted to the authority that issued the decision (Section 12 VwGVG). During the preliminary proceedings, the authority will specifically assess whether the formal requirements for the admissibility of the complaint have been met. If these requirements are not fulfilled, a rectification order must be issued (see 9.4 Evidence Required to Initiate a Claim).

General Time Limit for Decisions

Administrative courts are generally required to make decisions on applications and complaints without undue delay, but no later than six months after receiving them (Section 34 paragraph 1 VwGVG).

However, this applies only if no other time limit is stipulated by law. If administrative regulations set a different decision deadline, that deadline takes precedence, regardless of whether it is shorter or longer than six months. Some examples of shorter decision periods include the following:

• matters related to the employment law of federal civil servants must be settled within three months;
• decisions on appeals against declaratory decisions in environmental impact assessment matters must be made within six to eight weeks;
• appeals against the revocation of driving licences must be settled within three months.

Application to the Supreme Administrative Court to Set a Time Limit

The Supreme Administrative Court handles applications for the establishment of a time limit when an administrative court has failed to meet its duty to decide (Article 133 paragraph 1 number 2 B-VG). An application for a time limit can only be submitted to the Supreme Administrative Court if the administrative court has not made a decision within six months, or within the specified time period if it is shorter or longer. If the administrative court has not fulfilled its duty to decide, the Supreme Administrative Court must order the court to issue its decision within a reasonable period, as determined by the Supreme Administrative Court (Section 42a VwGG).

Merits and Process

The complaint to an administrative court must specify the grounds on which the allegation of illegality of the contested decision is based (see 9.4 Evidence Required to Initiate a Claim and 9.5 Procedural Stages). Within these grounds, a complaint can assert:

• the unlawfulness of the content;
• a lack of jurisdiction of the authority; or
• a violation of procedural regulations.

However, procedural errors can generally be remedied during the complaint proceedings. For example, a violation of the right to be heard during the proceedings before the administrative authority can be rectified by providing the opportunity to make a statement before the administrative court (Supreme Administrative Court, 29 February 2015, Ra 2014/07/0102).

The grounds for the complaint do not need to have been previously raised during the proceedings before the administrative authority. They may also address issues that are raised for the first time in the complaint to the administrative court, as there is generally no prohibition on introducing new facts during the court proceedings.

Binding of the Administrative Court to the Complaint

Administrative courts are generally bound by the complaint in their review process (Section 27 VwGVG). The scope of the review is thus determined by the grounds for the complaint and the extent to which the administrative authority’s decision is challenged.

Federal Constitutional Law (B-VG)

Austrian federal constitutional law is not contained in a single constitutional document or federal constitutional law. Instead, it consists of multiple laws, each of which either holds constitutional status in its entirety or contains individual constitutional provisions. The most significant of these is the Federal Constitution Act (B-VG), originally enacted in 1920. In addition to federal constitutional law, each province has its own constitutional law.

Administrative Courts

The standard of review applied by administrative courts can address both the violation of subjective rights and objective unlawfulness. This review also extends to directly applicable EU law, including the Charter of Fundamental Rights, as well as violations of constitutionally guaranteed rights.

A decision by an administrative authority may be deemed unlawful if the authority has improperly applied a law with unconstitutional content. If such concerns arise, they must be presented in a manner that allows the administrative court to assess whether a request for judicial review of the legal provisions should be submitted to the Constitutional Court.

Constitutional Court

The Constitutional Court hears appeals against decisions made by administrative courts if the appellant asserts that their constitutionally guaranteed rights were violated by a decision or by the application of an unlawful ordinance or an unconstitutional law (see 3.1 Challenging Primary Legislation and 3.2 Challenging Secondary Legislation).

Merits and Process

A complaint against a decision made by an administrative authority to an administrative court can be based on:

• unlawful content;
• lack of jurisdiction of the relevant authority; or
• violation of procedural regulations (see 10.1 Scope of Judicial Review: Merits v Process).

However, procedural errors can generally be remedied during the complaint proceedings.

Facts as the Basis for the Decision

Administrative courts are required to establish the factual basis necessary for their decisions in accordance with the principle of ex officio proceedings (see 8.1 Disclosure/Discovery).

Incorrect Determination of Facts

An administrative authority’s decision can be challenged based on the facts it has assumed. Specifically, discrepancies between the facts assumed by the authority and those contained in the case files can render the decision unlawful.

A discrepancy exists when the facts determined by the authority contradict the content of the case file regarding the facts recorded therein (Supreme Administrative Court, 17 November 2022, Ra 2021/02/0014).

Discretion of Administrative Authorities

When an administrative authority is granted discretion by law and exercises it appropriately, this is not considered unlawful (Article 130 Paragraph 3 B-VG). Since there can be no illegality in such a case, a complaint alleging that the authority merely exercised its discretion inappropriately must be rejected as inadmissible due to the absence of any potential illegality.

Discretion of the Administrative Courts

In reviewing whether an administrative authority has exercised its discretion in accordance with the law, the administrative court must assess whether the authority made a justifiable decision based on the criteria set out in the law, or whether it committed an error of judgment. Such an error occurs if the authority:

• disregarded relevant circumstances when exercising its discretion;
• used subjective or unobjective criteria in its discretionary decision-making;
• failed to exercise discretion altogether; or
• grossly misjudged the weight of the relevant factual elements.

If the administrative authority’s exercise of discretion is found to be unlawful, the administrative court must make a discretionary decision itself as part of its ruling on the matter (Supreme Administrative Court, 21 April 2015, Ra 2015/09/0009).

Bias of Administrative Bodies

Administrative bodies must refrain from exercising their authority and arrange for appropriate representation, particularly in the following scenarios (Section 7 AVG):

• in matters where the body or one of its relatives has a personal interest;
• in matters where the body has been or is still acting as an authorised representative of a party; and
• in situations where there are other significant reasons that could reasonably lead to doubts about the body’s impartiality.

The essence of bias lies in the inability to make an impartial decision due to subjective psychological influences. Section 7 AVG aims to prevent administrative bodies from becoming entangled in conflicts of conscience while exercising their statutory duties or from appearing biased. It ensures objectivity and legality in the administration of the law.

Complaint Based on Alleged Bias of the Decision-Maker

If a biased body makes an official decision, it is objectively unlawful. The involvement of a biased body constitutes a procedural violation. This violation may be raised in a complaint to the administrative court against the decision that concludes the proceedings. However, such a complaint will only succeed if there are legitimate concerns regarding the material correctness of the decision (Supreme Administrative Court, 26 February 2010, 2009/02/0297).

The Principle of Equality

The Austrian Federal Constitution guarantees several fundamental rights that ensure legal equality for those subject to the law. The general principle of equality is enshrined in Article 7 B-VG as well as Article 2 StGG (see 10.8 Human Rights for the sources of fundamental rights), which stipulate that all citizens are equal before the law.

This fundamental right to equality basically applies to both natural and legal persons with Austrian or EU citizenship or registered office in an EU member state. Specific prohibitions against discrimination are found within the rules governing the fundamental freedoms of the internal market. According to Article 18 of the Treaty on the Functioning of the European Union (TFEU), there is a comprehensive prohibition on discrimination, which prevents discrimination against EU citizens in comparison to nationals, within the scope of EU law.

Additionally, the Charter of Fundamental Rights of the European Union enshrines the principle of equality in Article 20, stating that all persons are equal before the law.

Complaint Based on Unequal Treatment

Directly applicable EU law, including the Charter of Fundamental Rights, as well as the violation of constitutionally guaranteed rights, are part of the standard of judicial review applied by administrative courts (see 10.2 Constitutional Challenge).

As the fundamental right to equality is a constitutionally guaranteed right (and also a fundamental right of the European Union), a complaint to an administrative court may assert that there has been unequal treatment in circumstances where equality should have been upheld.

Sources of Fundamental Rights

In Austria, fundamental rights are not codified in a single section or part of the federal constitutional law but are instead dispersed across various legal sources. The following are of particular importance:

• the Fundamental Law of the State of 21 December 1867 on the general rights of citizens for the kingdoms and states represented in the Imperial Council (StGG);
• the European Convention on Human Rights (ECHR); and
• the Charter of Fundamental Rights of the European Union (CFR).

Austria acceded to the European Convention on Human Rights and its First Additional Protocol in 1958. The ECHR holds the status of federal constitutional law in Austria, with its provisions directly applicable. Consequently, it is considered of equal rank and value to other core constitutional texts, such as the StGG.

According to the case law of the Constitutional Court, the provisions of the CFR should be applied in the same manner as rights guaranteed by constitutional law, provided they do not have a completely different normative structure from the rights guaranteed in the Federal Constitution. They therefore form a standard of review both in proceedings for the review of legal provisions and in proceedings for the review of decisions by administrative courts.

Complaint Based on Violation of Constitutionally Guaranteed Rights

Directly applicable EU law, including the CFR, and the violation of constitutionally guaranteed rights, form part of the judicial review standard applied by administrative courts (see 10.2 Constitutional Challenge). As a result, complaints can be lodged with an administrative court on the grounds of violations of human rights.

Principle of Proportionality

The principle of proportionality is deeply embedded in the Austrian administrative law system. According to this principle, an authority may only use or impose the least restrictive measures necessary to achieve the intended objective, considering the circumstances of the case. For instance, under Section 360 of the Austrian Trade Law, the trade authority may only take the measures necessary to safeguard certain protected interests.

The principle of proportionality must be taken into account even if it is not explicitly stated in a law authorising interference with rights, unless the law specifies otherwise. In general, the principle of proportionality serves as an objective constraint on any interference with rights, especially constitutionally stipulated rights (see 10.8 Human Rights).

Complaint for Violation of the Principle of Proportionality

In light of this, it is possible in Austria to file a complaint with an administrative court if, for example, an administrative authority has failed to adopt the least restrictive measures necessary to achieve the intended objective, thereby acting disproportionately.

Subjective Rights

The term “subjective public right” refers to the legal entitlement granted to individuals under public law, allowing them to demand specific actions or behaviours from the state in pursuit of their interests. A subjective public right exists only if it is enforceable (Austrian Supreme Administrative Court, 28 August 1997, 97/04/0106). The primary purpose of subjective public rights is to protect individual interests by granting party status and the ability to request judicial review of administrative actions.

Subjective public rights can be explicitly granted by law. Additionally, they may be determined based on the “protective norm theory”. According to this theory, if a legal norm imposes a duty on an administrative authority that benefits not only the general public but also specific individuals, it is assumed in a rule-of-law state that these individuals have a subjective entitlement and, therefore, party status (Constitutional Court, 3 October 1991, B4/1991).

Complaint Due to Illegality

Administrative courts handle complaints based on allegations of illegality. As such, the fundamental requirement for filing a complaint is the assertion (or at least the suggestion) of unlawful action by an administrative authority. Unlawfulness encompasses violations of constitutional, EU, and ordinary law provisions (see 10.2 Constitutional Challenge).

This means that Article 130 paragraph 1 B-VG constitutionally enshrines the model of subjective legal protection. If a violation of subjective rights is claimed, and this is within the scope of the claim, administrative courts should adjudicate the matter directly under constitutional authority.

Jurisdiction of the Ordinary Courts and the Constitutional Court

Cases falling under the jurisdiction of the ordinary courts (see 3.4 Agreements Between Private Entities and Public Bodies) or the Constitutional Court are excluded from the jurisdiction of the administrative courts (Article 130 paragraph 5 B-VG).

Article 130 paragraph 5 B-VG applies specifically to cases where a direct appeal to the Constitutional Court against an administrative authority’s decision is provided by law. This provision pertains to appeals against administrative authorities’ decisions to the Constitutional Court under Article 141 paragraph 1 letter j B-VG.

Procedural Orders

Notices are formative or declaratory rulings concerning formal legal relationships arising from procedural provisions. They define the legal standing of the parties under procedural law (see 2.1 Determining Susceptibility, 3.3 Government Decisions Affecting Sole Individuals and 3.5 Challenging Decisions Without Legal Effect). In contrast, procedural orders only regulate the course of the proceedings.

Additionally, a distinction must be made between notices and procedural orders based on whether the concerned party requires immediate legal protection to contest the decision or if it is more reasonable, for the sake of procedural efficiency, to wait until the final decision on the merits before challenging the act.

Procedural orders cannot be the subject of a separate (direct) complaint before the administrative courts (Section 7 paragraph 1 VwGVG). They can only be contested in a complaint against the final decision in the case.

Possible “Defendants”

Administrative courts are responsible for reviewing sovereign administrative actions (see 1.1 General Rules or Specific Regimes?). “Sovereign administration” refers to actions where the state issues orders or commands (see 3.4 Agreements Between Private Entities and Public Bodies), which are carried out by public authorities. Whether an authority has the power to issue sovereign acts depends on specific authorisations in administrative regulations. Therefore, the “defendant” in proceedings before an administrative court is typically the administrative authority, which is a party to the proceedings, just like the complainant (see 7.2 Roles of Additional Parties). Other parties involved in the administrative proceedings, whose interests differ from those of the complainant, may also have party status in the court proceedings (see 7.2 Roles of Additional Parties).

Rights of the Parties in Administrative Court Proceedings

Party status grants, eg, the following rights:

• right of appeal;
• interim relief;
• inspection of files;
• oral hearing;
• pronouncement and execution of decisions;
• resumption of proceedings; and
• restitutio in integrum.

Additionally, parties have the right to be immediately informed of any new arguments raised in the complaint to the administrative court and to provide comments on them (Section 10 VwGVG). However, this is not an obligation. It is not detrimental if the authority or other parties, whose interests differ from the complainant’s, do not provide comments. The principle of ex officio proceedings, combined with the duty of the parties to co-operate, still applies (see 8.1 Disclosure/Discovery).

Generally: Automatic Interim Relief

Complaints against decisions by administrative authorities generally have a suspensive effect (Section 13 VwGVG). This prevents potentially unlawful decisions by state bodies from creating irreversible or difficult-to-reverse facts before the legal situation has been definitively clarified by higher authorities.

The provisional measure of suspensive effect halts the execution of the contested decision in its entirety. Until the complaint is resolved, no legal consequences detrimental to the complainant may arise from the contested decision.

Exclusion of Suspensive Effect in Individual Cases

The authority may exclude the suspensive effect by decision if, after weighing the affected public interests and the interests of other parties, it determines that the early execution of the contested decision or the exercise of the right granted by the contested decision is urgently required due to imminent danger (Section 13 paragraph 2 VwGVG). When deciding on the exclusion of suspensive effect, the authority must balance the complainant’s interest in legal protection against the conflicting interests of other parties and the public interest. The parties may challenge the exclusion of the suspensive effect by filing a complaint with the Administrative Court.

Supreme Administrative Court and Constitutional Court

Appeals to the Supreme Administrative Court and the Constitutional Court generally do not have a suspensive effect (Section 85 paragraph 1 VfGG; Section 30 paragraph 1 VwGG). However, suspensive effect may be granted upon application (Section 30 paragraph 2 VwGG; Section 85 paragraph 2 VfGG).

No Possibility of Awarding Damages

In Austrian administrative proceedings, it is generally not possible to seek damages as part of a challenge to a decision by an administrative authority. Administrative courts review the legality of administrative acts (see 10.2 Constitutional Challenge) but they are not authorised to award damages.

Liability of Authorities

Under civil law provisions, the federal government, the provinces and the municipalities are liable for damage to property or persons caused by individuals acting as their representatives during the execution of the law through unlawful conduct (Section 1 paragraph 1 Liability of Authorities Act (AHG)).

The courts responsible for adjudicating claims for compensation from the injured party against the legal entity are those with jurisdiction over civil law cases (Section 9 paragraph 1 AHG; for the distinction between ordinary jurisdiction and administrative jurisdiction, see 3.4 Agreements Between Private Entities and Public Bodies).

Illegality, as defined by the AHG, can include both the application of material or procedural provisions in the specific case and the violation of any public or private law norms designed to prevent harm to persons or property.

No Right to Strike Out Legislation

Administrative courts do not have the authority to strike out legislation they deem unconstitutional. This power lies exclusively with the Constitutional Court.

Indirect Method: Application by a Court to the Constitutional Court

All Austrian courts are obligated to submit an application to the Constitutional Court to repeal legal provisions they believe are unconstitutional (see 3.1 Challenging Primary Legislation). If the Constitutional Court subsequently strikes out a provision as unconstitutional, the provision must continue to apply to cases that occurred before its repeal. The repeal generally applies prospectively only.

However, exceptions to this principle apply to cases where proceedings were initiated to review the constitutionality of the legal provision (“case in point”: Constitutional Court 26 January 1978, B 105/1975) and to those cases that were pending before the Constitutional Court at the time of the oral hearing or the start of the non-public deliberation (“quasi-cases in point”: Constitutional Court 9 October 1985, B 168/1985).

Decision on the Merits

The starting point for legal protection by the administrative courts is complaints (see 1.2 Forum for Judicial Review). However, the administrative courts generally make decisions on the merits of the case, being reformative rather than merely cassatory (Section 28 paragraph 2 VwGVG). Nevertheless, the administrative courts are limited in the scope of their decision on the merits, as their power to amend is restricted to the complainant’s subjective rights (see 10.10 Additional Grounds).

Only in limited circumstances can the administrative court set aside the contested decision and refer the matter back to the authority for a new decision. For example, this may occur if the authority failed to conduct necessary investigations into the facts of the case. When issuing its new decision, the authority is bound by the legal assessment upon which the administrative court based its decision (Section 28 paragraph 3 VwGVG).

Decision on the Merits

If the complaint is neither dismissed nor the proceedings discontinued, the administrative court must issue a decision on the merits of the complaint pursuant to Section 28 paragraphs 2 to 4 VwGVG (see 13.3 Mandating Government Action Through Court Orders). In doing so, the administrative court must address the administrative matter at hand in the same manner as the administrative authority would. Its responsibility is to establish the relevant facts of the case and make a legal assessment (see 8.1 Disclosure/Discovery). As such, the administrative court must base its decision on the factual and legal situation that exists at the time of the decision.

Referral Back to the Authority

Referral back to the administrative authority and cassation can only be considered in exceptional cases (see 13.3 Mandating Government Action Through Court Orders).

Principle of Bearing One’s Own Costs

In administrative proceedings, each party must bear its own costs, regardless of whether the proceedings were initiated by the party, another party or ex officio. This applies both before administrative authorities and courts (Section 74 AVG in conjunction with Section 17 VwGVG). The outcome of the proceedings – whether a party wins or loses or is partially successful – is irrelevant. Even if a party was obliged to take procedural steps, they must still cover their own costs.

This principle includes expenses such as lawyer’s fees, private expert opinions, and travel or subsistence costs. It also applies to authorities, meaning they cannot claim cost reimbursement from parties.

Exceptions to the Principle

Legal provisions may specify cases where a party is entitled to cost reimbursement (Section 74 paragraph 2 AVG). For example, in expropriation proceedings, costs are typically borne by the railroad company.

Legal Aid

Legal aid ensures that financially disadvantaged parties can pursue their legal rights by exempting them from certain costs, including court fees and expert witness fees. If necessary, a lawyer may also be provided free of charge.

To qualify, a party must be unable to cover the costs without jeopardising their basic livelihood. The intended legal action must not be obviously futile or hopeless and must be required by fundamental rights (Section 8a paragraph 1 VwGVG). Legal entities may receive legal aid only if they lack the necessary funds and cannot obtain them from financially involved parties.

No Public Interest Costs

In general, there are no “loser pays” arrangements in Austrian administrative proceedings. The principle that each party must bear its own costs applies (see 14.1 Mechanisms to Protect Claimants From Excessive Costs). There are no provisions for public interest costs.

Attorney’s Fees

In principle, the claim for attorney’s fees arises from the agreement between the attorney and the client (Section 1 paragraph 1 General Fee Criteria (AHK)). As such, a civil law contract exists between the attorney and the client.

The conditions for claiming damages depend on whether the attorney causes harm to the party they are contractually obligated to represent or directly violates a law that protects the injured party. Liability under the mandate arises primarily from the standards set forth in attorney law. One of the primary duties of an attorney is to protect the client’s interests and uphold the law, which includes obligations such as the duty to warn, inform and prevent.

Wasted costs resulting from improper, unreasonable or negligent actions by legal representatives must be pursued in civil proceedings. (For the distinction between ordinary jurisdiction and administrative jurisdiction, see 3.4 Agreements Between Private Entities and Public Bodies.)

Costs Due to Official Action

Apart from costs incurred by legal representatives, procedural costs (and other related expenses) may be claimed as damages under Section 1 paragraph 1 AHG, as established by the Austrian Supreme Court (see 13.1 Damages). The prerequisite for this is that these costs were incurred by a party involved in the proceedings due to legally unjustifiable procedural actions, delays in the proceedings or decisions.

Supreme Administrative Court and Constitutional Court

In Austria, the Supreme Administrative Court and the Constitutional Court review decisions made by administrative courts (see 1.1 General Rules or Specific Regimes?).

Administrative Court

The Supreme Administrative Court hears appeals against decisions made by administrative courts based on allegations of illegality (Article 133 Paragraph 1 B-VG).

An appeal is admissible if the decision hinges on the resolution of a legal issue of fundamental importance, particularly in the following circumstances:

• the decision deviates from established case law of the Supreme Administrative Court;
• there is no relevant case law; or
• the legal question has not been answered consistently in prior rulings of the Supreme Administrative Court (Article 133 paragraph 4 Sentence 1 B-VG).

The Supreme Administrative Court functions exclusively as a court of law, not as a court of fact. It must base its decision on the facts established by the administrative court (Section 41 VwGG).

Constitutional Court

The Constitutional Court hears appeals against administrative court decisions if the appellant claims that their constitutionally guaranteed rights have been violated, or if the decision was based on the application of an unlawful regulation or unconstitutional law (see 3.1 Challenging Primary Legislation, 3.2 Challenging Secondary Legislationand 10.2 Constitutional Challenge).

Supreme Administrative Court and Constitutional Court

Appeals against decisions made by administrative courts are heard by the Supreme Administrative Court and the Constitutional Court (see 15.1 Right to Appeal).

Supreme Administrative Court

Administrative courts are required to determine and briefly justify in their decisions whether an appeal to the Supreme Administrative Court is admissible (Section 25a paragraph 1 VwGG). There is a distinction between an ordinary appeal (where the administrative court has ruled that the appeal to the Supreme Administrative Court is admissible) and an extraordinary appeal (where the administrative court has ruled that the appeal is inadmissible).

However, the Supreme Administrative Court is not bound by the administrative court’s decision regarding the admissibility of an appeal (Section 34 paragraph 1a sentence 1 VwGG). Therefore, an appeal to the Supreme Administrative Court may be admissible, even if the administrative court has ruled that it is inadmissible. The Supreme Administrative Court determines the admissibility of such an extraordinary appeal based on the grounds outlined in the appeal.

Constitutional Court

In contrast to the process for appeals to the Supreme Administrative Court, there is no legal provision requiring administrative courts to determine whether an appeal to the Constitutional Court against their decision is admissible.

In proceedings before the Supreme Administrative Court and the Constitutional Court, the standards of review differ. In both cases – proceedings before the Supreme Administrative Court and the Constitutional Court – there is no complete rehearing of the case (“rehearing”). Instead, only a legal review of the decisions already issued is conducted.

Supreme Administrative Court

The Supreme Administrative Court reviews decisions of administrative courts solely for their potential unlawfulness (legal review). Appeals to the Supreme Administrative Court are therefore based on legal grounds, and there is no review of the facts or a new hearing of evidence (see 15.3 Permission to Appeal).

Constitutional Court

The Constitutional Court reviews decisions of administrative courts to determine whether they violate the appellant’s constitutionally guaranteed rights or whether the appellant’s rights have been infringed by the application of an unlawful ordinance or unconstitutional law. Thus, appeals to the Constitutional Court also represent a legal review (“appeal on legal grounds”).