Public and Administrative Law 2025

Definitive global law guides offering comparative analysis from top-ranked lawyers

CHAMBERS GLOBAL PRACTICE GUIDES

Public & Administrative Law 2025

Definitive global law guides offering comparative analysis from top-ranked lawyers

Contributing Editors Charles Brasted and Julia Marlow Hogan Lovells

Global Practice Guides

Public & Administrative Law

Contributing Editors Charles Brasted and Julia Marlow Hogan Lovells International LLP

2025

Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewer Sally McGonigal, Ethne Withers, Deborah Sinclair and Stephen Dinkeldein Content Reviewers Vivienne Button, Lawrence Garrett, Sean Marshall, Marianne Page, Heather Palomino and Adrian Ciechacki Content Coordination Manager Nancy Laidler Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Hannah Leinmüller Head of Production Jasper John Production Coordinator Genevieve Sibayan

Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com

Contents

INTRODUCTION Contributed by Charles Brasted and Julia Marlow, Hogan Lovells International LLP p.4 AUSTRIA Law and Practice p.8 Contributed by Schönherr Rechtsanwälte GmbH Trends and Developments p.32 Contributed by Schönherr Rechtsanwälte GmbH

GREECE Law and Practice p.146 Contributed by Machas & Partners

ITALY Law and Practice p.167 Contributed by Legance

MEXICO Trends and Developments p.179 Contributed by Galicia Abogados

BRAZIL Law and Practice p.42 Contributed by Fenelon Barretto Rost Trends and Developments p.56 Contributed by Fenelon Barretto Rost

PORTUGAL Law and Practice p.186

Contributed by Sérvulo & Associados Trends and Developments p.205 Contributed by Sérvulo & Associados

CANADA Law and Practice p.65

Contributed by Circle Barristers Trends and Developments p.80 Contributed by Circle Barristers CHILE Law and Practice p.86 Contributed by Valdivia Legal

UK Law and Practice p.208 Contributed by Hogan Lovells International LLP

USA Law and Practice p.229

Contributed by Blank Rome, LLP Trends and Developments p.244 Contributed by Kurzban Kurzban Tetzeli and Pratt

FRANCE Law and Practice p.101 Contributed by Willkie Farr & Gallagher LLP Trends and Developments p.124 Contributed by Willkie Farr & Gallagher LLP

USA – CALIFORNIA Law and Practice p.249 Contributed by Buchalter Trends and Developments p.266 Contributed by Buchalter

GERMANY Law and Practice p.131 Contributed by R & P Legal Trends and Developments p.141 Contributed by R & P Legal

CHAMBERS.COM

INTRODUCTION

Contributed by: Charles Brasted and Julia Marlow, Hogan Lovells International LLP

Hogan Lovells International LLP has a deep understanding of and works together with cli - ents to solve the toughest legal issues in ma - jor industry sectors and commercial centres around the world. Whether expanding into new markets, considering capital from new sources or dealing with increasingly complex regula - tion or disputes, Hogan Lovells’ collaborative, straight-talking and practical problem-solving approach helps clients to stay on top of their risks, opportunities and disruption. A fast- changing and inter-connected world requires

fresh thinking combined with proven experi - ence. Hogan Lovells offers extensive experi - ence and insights gained from working in some of the world’s most complex legal environments and markets for corporations, financial institu - tions and governments. With market perspec - tive built on experience in cross-border and emerging economies, 2,600 lawyers on six con - tinents deliver clear and practical legal solutions aligned with business strategy to mitigate risk and make the most of opportunities.

Contributing Editors

Charles Brasted is a seasoned litigator with a distinguished reputation in the administrative and public law field. He is a genuine industry leader and the go-to for high-profile and complex matters in heavily regulated sectors. Charles co-leads Hogan Lovells’ global regulatory and IP practice, which allows him to bring together insight across the full range of regulatory areas for the benefit of clients, particularly those operating and innovating in the emerging area of regulation. His clients range from innovators such as Uber and Airbnb to The Crown Estate and central government departments.

Julia Marlow is a leader in the administrative and public law field and an exceptional litigator. She has a broad public law and policy practice, advising both public and private sector clients

from a wide range of industries, including energy, financial services, pharmaceuticals, telecoms and transport. Julia is described by clients as “an incredibly bright and creative lawyer”, and is a natural choice for businesses and public bodies facing complex, high-profile judicial reviews, and other regulatory and public law challenges. She is highly commercial and strategic in her thinking and offers vast experience in an array of public law matters.

Hogan Lovells International LLP Atlantic House

50 Holborn Viaduct London EC1A 2FG United Kingdom Tel: +44 (0)20 7926 2000 Web: www.hoganlovells.com

CHAMBERS.COM

INTRODUCTION Contributed by: Charles Brasted and Julia Marlow, Hogan Lovells International LLP

Global Overview – Administrative and Public Law in 2025 Introduction Administrative and public law reflects the politi - cal, societal and constitutional settlement under - pinning the legitimacy of each nation State, embodying the distinctive system of govern - ance of that State and its people. As such, it is fundamental to the relationship between State and citizens. It provides the framework for the exercise of governmental and legislative power, and the mechanisms for the exercise of those powers to be challenged by those affected and supervised by the courts. While administrative and public law is principally domestic, business, governments and their legal advisers need to consider international legal and policy trends. That is both because many of the most pressing policy issues are inherently global in nature, and therefore raise policy questions about national divergence and international coherence, as well as because domestic admin - istrative and public law is increasingly called upon to vindicate international legal standards and obligations. The growing importance of administrative and public law A number of global trends are driving the increasing importance – and prominence – of administrative and public law, for both the pri - vate and public sector. Those include the tension between the growing pressure on governments to demonstrate systemic change on fundamen - tal issues such as geopolitical and trade relation - ships, freedom of movement, and the role and scale of the State coupled with rapid develop - ments in technology. This tension creates both novel and convergent areas of risk and oppor - tunity, and a consequent need for regulation to balance competing interests.

In a complex and uncertain policy environment, the rule of law is a critical factor in business - es’ strategies: transparency and foreseeability are significant factors in investment decisions, and businesses are increasingly focused on the opportunities to shape that policy environment. Administrative and public law is central to busi - nesses’ ability to foresee, shape and challenge government decision-making. At the same time, businesses that perform sig - nificant public functions in their own right are increasingly being challenged in reliance on administrative and public law. The distinction between government regulation and private enterprise is becoming progressively blurred, with non-governmental entities, such as busi - nesses that manage critical financial market infrastructure and online platforms, taking on the responsibility of establishing and enforcing rules governing market access and user behav - iour on the markets for which they are respon - sible. Attempts to challenge the actions of such bodies using administrative and public law are resulting, in certain jurisdictions, in a broadening of the application of these principles to private businesses, extending their reach beyond tradi - tional boundaries. These factors also continue to shape administra - tive and public law. • The impact and value of public decisions has driven growth in commercial legal chal - lenges, including novel attempts to broaden the scope of challengeable decisions and the recoverability of significant financial recom - pense. • Those cases have also caused the courts to have to consider the application of funda - mental legal principles to highly commercial

CHAMBERS.COM

INTRODUCTION Contributed by: Charles Brasted and Julia Marlow, Hogan Lovells International LLP

contexts and the interplay between public and private law. • In consequence, governments have adapted their approach to defending claims (including accepting greater levels of litigation risk when making policy) and sought to constrain legal challenge mechanisms. These shifts are also affecting the practice of administrative and public law, such as the grow - ing use of disclosure and expert evidence and more commercial approaches to advocacy. Complex and changing policy environment The ways in which governments interact with their citizens and businesses are constantly evolving, as the role of government changes to meet the challenges of a rapidly changing world. • Shifting geo-political landscapes – States are increasingly implementing measures to guard against foreign influence in their economies and politics, including controls on foreign direct investment, particularly in critical national infrastructure, and sanctions. • Pursuit of growth – The scale of the regulatory burden on businesses continues to be viewed by States as a policy lever to strike the appropriate balance between innovation and growth, on the one hand, and public interest protection (eg, of consumers and the envi - ronment) on the other. In many jurisdictions, governments are seeking to consolidate and streamline regulations, and to put additional pressure on regulators to prioritise growth. • Digital and technological transformation – The rise of innovative industries has prompted governments – and supranational organisa - tions, such as the EU Commission – to design new forms of regulation to tackle the twin policy challenges of protecting citizens and facilitating growth posed by digitalisation,

online platforms, artificial intelligence (AI), and other emerging technologies. Those chal - lenges are inherently international but there is little harmonisation of approach or even regu - latory philosophy. As governments grapple with their approach to these challenges and the balance between consistency and com - petitive differentiations, global digital busi - nesses need to adopt internationally coherent approaches to engaging with governments and regulators. • Environmental and societal imperatives – Administrative and public law is increas - ingly being leveraged in the climate change debate, as governments seek to adapt domestic policy to their political views, and/or international treaty obligations, and activists on both sides of the debate respond to that through the use of novel legal challenges. For example, in a landmark judgment in 2024, the European Court of Human Rights found Swit - zerland in breach of its positive obligations under Article 8 of the European Convention on Human Rights (concerning the right to pri - vate and family life) to tackle climate change due to failures to establish a relevant domes- tic regulatory regime and to meet emission reduction targets. • Limited resources and legislative and policy- making capacity – All of the factors above are driving governments to place increasing reliance on regulators and the private sector for policy delivery. Changes to administrative and public law Against this backdrop, the role of administrative and public law in holding government and regu - lators to account is an increasingly important part of many businesses’ commercial strategy. Legal arguments based on traditional adminis - trative and public law and human rights princi - ples are being adapted and deployed in increas -

CHAMBERS.COM

INTRODUCTION Contributed by: Charles Brasted and Julia Marlow, Hogan Lovells International LLP

ingly commercial contexts. Perhaps one of the most significant aspects of this trend has been the growing use of administrative and public law to seek substantial financial remedies against governments, regulators and private bodies performing public functions. For example, in the recent UK case of Elliott Associates v The London Metal Exchange [2024] EWCA Civ 1168, in which international investors were seeking significant damages against a privately owned investment exchange on human rights grounds, the courts had to examine closely the impact of the commercial and contractual context on the relevant property rights. The growing willingness of the courts to award damages is not, though, limited to the commercial context (see, for exam - ple, Canada (Attorney General) v Power, 2024 SCC 26, in which the Supreme Court of Canada held that the government could be liable to pay damages for bringing forward legislation that was later found to be unconstitutional). At the same time, courts in a number of juris - dictions have revisited established doctrines to adapt to contemporary challenges. For instance, recent judgments in the United States (Loper Bright Enterprises v Raimondo, 22 U.S. 451 (2024)) and Canada (Auer v Auer, 2024 SCC 36) have redefined standards of review for govern - mental decisions, reducing the deference tradi - tionally afforded to regulators. In response to this, there has been a clear trend of governments accepting a higher level of administrative and public law risk, and adopting a more robust approach to defending their deci - sions. There is also a notable trend of legislative attempts to limit the availability of mechanisms for the courts to review governments’ decisions (see, for example, Mexico’s prohibition on judi - cial review of constitutional amendments).

As administrative and public law litigation becomes more commercial, its practice increas - ingly mirrors that of commercial litigation (see, for example, R (British Gas Trading and E.ON) v Secretary of State for Energy Security and Net Zero [2025] EWCA Civ 209). This includes not only the deployment of extensive evidence but also the growing use of requests for information, disclosure and expert evidence. Conclusion Pressures on governments and regulators to demonstrate change and promote economic growth can lead to calls for the curtailment of checks and balances. However, administra - tive and public law has generally shown itself to be resilient in the face of such calls. That is not least because it serves valuable functions for governments, as well as for the citizens (and businesses) that it exists to protect. First, admin - istrative and public law provides the framework for demonstrably robust decision-making, and for governments and legislators confidently to delegate important decisions to expert regula - tors and other bodies. Secondly, the foresee - ability and protections that it provides are key to attracting and retaining inward investment, and therefore to achieving governments’ growth and change objectives.

CHAMBERS.COM

AUSTRIA

Czech Republic

Germany

Slovak

Vienna

Austria

Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger Schönherr Rechtsanwälte GmbH

Hungary

Italy

Slovenia

Croatia

Contents 1. Jurisdiction p.12 1.1 General Rules or Specific Regimes? p.12 1.2 Forum for Judicial Review p.12 2. Target of Challenge p.13

2.1 Determining Susceptibility p.13 3. Nature of the Decision p.13

3.1 Challenging Primary Legislation p.13 3.2 Challenging Secondary Legislation p.14 3.3 Government Decisions Affecting Sole Individuals p.14 3.4 Agreements Between Private Entities and Public Bodies p.14 3.5 Challenging Decisions Without Legal Effect p.15 4. Nature of the Decision-Maker p.15 4.1 Judicial Review of Commercial and Non-Governmental Decisions p.15 5. Ouster p.15 5.1 Legislative or Contractual Limits on Judicial Review p.15 6. Standing p.16 6.1 Requirements for Administrative Law Challenges p.16 6.2 Charities and NGOs p.17 7. Other Parties p.17 7.1 Joinder p.17 7.2 Roles of Additional Parties p.17 8. Evidence p.18 8.1 Disclosure/Discovery p.18

8.2 Alternatives to Disclosure/Discovery p.18 8.3 Live Evidence and Cross-Examination p.18

CHAMBERS.COM

AUSTRIA CONTENTS

9. Time Limits and Preliminary Steps p.19 9.1 Preliminary Requirements p.19 9.2 Exhausting Internal Appeals p.19 9.3 Time Limits p.19 9.4 Evidence Required to Initiate a Claim p.20 9.5 Procedural Stages p.20 9.6 Initial Sifting Process p.20 9.7 Expedited Proceedings p.21 10. Grounds p.21 10.1 Scope of Judicial Review: Merits v Process p.21 10.2 Constitutional Challenge p.22 10.3 Procedural Errors p.22 10.4 Factual Errors p.22 10.5 Abdication or Fettering of Discretion p.23 10.6 Bias p.23 10.7 Unequal Treatment p.23

10.8 Human Rights p.24 10.9 Proportionality p.25

10.10 Additional Grounds p.25 10.11 Exempt Decisions p.25 11. Defence p.26 11.1 Timing and Grounds of Defence p.26 12. Interim Relief p.27 12.1 Common Forms of Interim Relief p.27

13. Remedies p.27 13.1 Damages p.27 13.2 Invalidating Legislation p.28

13.3 Mandating Government Action Through Court Orders p.28 13.4 Next Steps Where a Decision Is Found Unlawful p.28 14. Costs p.29 14.1 Mechanisms to Protect Claimants From Excessive Costs p.29 14.2 Public Interest Costs p.29 14.3 Wasted Costs p.29 15. Appeals p.30

15.1 Right to Appeal p.30 15.2 Appeal Forums p.30

15.3 Permission to Appeal p.30 15.4 Rehearing of Appeal? p.31

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

Schönherr Rechtsanwälte GmbH is a full- service law firm with a footprint in Central and Eastern Europe providing advice to local and international companies. The firm specialises in environmental law, including climate change, planning and permitting, and is acclaimed for its advisory work in respect of infrastructure pro - jects (motorways, railways and airports), renew - able energy projects (hydropower, wind parks, PV, power2x, and others), and the permitting of large industrial and commercial infrastruc - ture. The team also provides advice on special

industries, including pulp, paper, automotive, steel, mining, waste, wastewater, food, glass, energy, utilities, entertainment and research. Schönherr is most prominent in EIA proceed - ings and nature conservation as well as plan - ning and permitting issues but is also highly specialised in climate change and emissions trading issues, clean-up proceedings, water rights and waste management law, forestry law, chemical and product law, public environmental liability, environmental criminal law, compliance, and comprehensive due diligence.

Authors

Bernd Rajal is a partner at Schönherr in Vienna and specialises in public and administrative law. Bernd has a strong focus on energy regulatory law. He advises on

Maximilian Klein has been an associate at Schönherr since 2024 and advises clients on regulatory, especially energy law matters. From 2022 to 2024, he served as a member of scientific

the planning, development, approval and construction of energy generation plants and infrastructure projects as well as on all related energy contract law issues. With Schönherr representing various governmental departments, he is also involved in legislative procedures, making proposals for the amendment of environmental and energy law provisions. Bernd has further advised on various transactions in the power and gas sector in Europe. He has advised various governments and public utilities on renewable energy matters.

staff at the Austrian Constitutional Court. Maximilian began his professional career in 2020 as a research and teaching associate at the Johannes Kepler University Linz, a role he held until 2022. He holds a PhD in Law from the Johannes Kepler University Linz. His PhD thesis was awarded the Environmental and Technology Law Award in 2023.

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

Moritz Üblagger has been an associate with Schönherr since 2024. His main areas of practice are administrative and public law, with a special focus on energy and environmental law.

Prior to joining Schönherr, he spent four years as a research and teaching associate at the Public Law Department at the Paris Lodron University of Salzburg. Moritz gained experience during an internship with a national law firm specialising in public environmental law and as a paralegal at a national law firm specialising in all areas of business law. He holds a PhD in Law from the Paris Lodron University of Salzburg. Schönherr Rechtsanwälte GmbH A-1010 Vienna Schottenring 19 Austria Tel: +43 153 4370 Fax: +43 153 4376 6100 Email: office.austria@schoenherr.eu Web: www.schoenherr.eu

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

1. Jurisdiction 1.1 General Rules or Specific Regimes? Various Procedural Frameworks for First- Instance Proceedings In Austria, administrative courts review sover - eign acts carried out by authorities. The Federal Constitutional Act (B-VG) designates the Admin - istrative 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 cas - es. A comprehensive understanding of adminis - trative court procedures also requires considera - tion of relevant provisions in the B-VG and the Supreme Administrative Court Act (VwGG). Thus, a full grasp of administrative court proce - dure 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 proceed -

ings against the decision of the municipal coun - cil, however, the VwGVG is applicable. Additional Procedural Frameworks for Final Appeals In Austria, the Constitutional Court and the Supreme Administrative Court serve as the ulti - mate 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. As of 1 January 2024, Austria has nine provincial administrative courts and two federal adminis - trative courts: the Federal Administrative Court and the Federal Fiscal Court. Under Article 130 paragraph 1 B-VG, adminis - trative courts adjudicate complaints regarding: • notices issued by administrative authorities on the grounds of unlawfulness; • the exercise of direct administrative com - mand and coercive power due to unlawful - ness; and • failure of an administrative authority to issue a required notice. Challenges in Municipalities’ Own Jurisdictions 1.2 Forum for Judicial Review Judicial Review by Courts of Law In certain cases within a municipality’s own juris - diction, a complaint must first be submitted to the municipal council before it can be brought

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

before an administrative court (as outlined in 1.1 General Rules or Specific Regimes? ).

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. 3. Nature of the Decision 3.1 Challenging Primary Legislation The Constitutional Court In Austria, the Constitutional Court is the sole authority responsible for reviewing the constitu - tionality 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 unconstitu - tional – 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 Individuals may apply directly to the Constitu - tional Court if a law violates their rights without prior court proceedings or an official notice (Arti - cle 140 paragraph 1 letter d B-VG). However, strict admissibility requirements often result in the rejection of such applications. initiates a constitutional review. Application by an Individual

2. Target of Challenge 2.1 Determining Susceptibility 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 proce - dure. 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 adminis - trative 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, admin - istrative 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 ).

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

Scope of Judicial Review The Constitutional Court reviews legal provi - sions based on federal constitutional law. When assessing provincial laws, it also considers pro - vincial constitutional law. 3.2 Challenging Secondary Legislation Further Powers of the Constitutional Court Beyond its authority to review the constitutional - ity 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, pro - ceedings 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 deci - sion (see 3.1 Challenging Primary Legisla- tion ). 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 provi - sions, including superior ordinances. 3.3 Government Decisions Affecting Sole Individuals 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 indi - vidual 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. 3.4 Agreements Between Private Entities and Public Bodies Private Sector Administration In Austria, administration is divided into sover - eign administration and private sector admin - istration. Sovereign administration involves the exercise of state authority, whereas private sec - tor administration operates using legal forms available to private individuals, such as rental or purchase agreements. Common examples of private sector administra - tion 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 con - duct 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

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

review. Consequently, disputes arising from pri - vate sector administration agreements can only be challenged before ordinary courts. 3.5 Challenging Decisions Without Legal Effect 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 adminis - trative matter with binding legal force. Normative Force of Direct Administrative Command and Coercion Administrative courts also review complaints regarding acts of direct administrative com - mand 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 para - graph 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. 4. Nature of the Decision-Maker 4.1 Judicial Review of Commercial and 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 admin - istrative 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 gov - ernment, 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 ). Non-Governmental Decisions Delegation of Sovereign Powers 5. Ouster 5.1 Legislative or Contractual Limits on 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 hear -

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

6. Standing 6.1 Requirements for Administrative Law Challenges Violation of Own Rights Anyone claiming their rights have been violated by an administrative decision can file a com - plaint 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 admin - istrative proceedings, which requires the exist - ence 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 com - plaint for a breach of the duty to decide. The complainant must have a legal right to the deci - sion, typically being the main party in the pro - ceedings. 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 com - petence 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, poten - tially extending this right to any individual as pro - vided by law.

ing within a reasonable time by an independent and impartial tribunal established by law. Addi - tionally, as a member of the European Union, Austria is bound by the Charter of Fundamen - tal 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 sys - tem of legal obligations and controls, making the state inherently one that is based on the protec - tion 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 juris - diction cannot be excluded by means of a pri - vate 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 leg - islator, 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.

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

6.2 Charities and NGOs Right to File Complaints for Charities and NGOs Under Article 132 paragraph 4 B-VG, the legisla - tor 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 organi - sations have the right to file complaints under the Environmental Impact Assessment Act.

7.2 Roles of Additional Parties 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 author - ity 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 deci - sion (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 submit - ting 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 par - ties – main parties can participate in all issues relevant to the case, while secondary parties have more limited participation;

7. Other Parties 7.1 Joinder 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 pro - ceed 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 appli - cant 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.

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

8.2 Alternatives to Disclosure/Discovery 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. 8.3 Live Evidence and Cross- Examination Principle of Non-Limitation of Evidence The AVG, which applies subsidiarily in admin - istrative 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 unlimit - ed evidence applies (Section 46 AVG in conjunc - tion 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 princi - ple of immediacy (Section 25 paragraphs 6 and 7 VwGVG) requires decisions to be based on what occurred during the public hearing. Excep - tions 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 condi - tions. Evidence is generally gathered during the hearing to allow for contradictory examination.

• legal parties can assert specific subjective rights defined by law; and • formal and administrative parties only partici - pate to the extent of their public interest or objective rights.

8. Evidence 8.1 Disclosure/Discovery Principle of Ex Officio Proceedings

In Austrian administrative proceedings, the prin - ciple of ex officio proceedings applies (Section 39 paragraph 2 AVG in conjunction with Section 17 VwGVG). This means that both the adminis - trative 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 (Sec - tion 39 paragraph 2 AVG in conjunction with Section 17 VwGVG). This grants the author - ity 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 pro - cedure. Duty of the Parties to Participate Despite the ex officio and arbitrary order prin - ciples, 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.

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

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). After - wards, the authority must initiate an investiga - tion procedure. A complaint to an administrative court can only be filed after the authority has carried out the investigation and issued a notice. 9.3 Time Limits Administrative Courts The general time limit for filing a complaint against a decision of an administrative author - ity 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 deci - sion of an administrative court to the Constitu -

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 pre - sented by others; and • respond to administrative investigations. 9. Time Limits and Preliminary Steps 9.1 Preliminary Requirements Preliminary Proceedings and Preliminary Complaint Decision Complaints against the decision of an admin - istrative 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 pre - liminary 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. 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. 9.2 Exhausting Internal Appeals Challenges in Municipalities’ Own Jurisdictions

CHAMBERS.COM

AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH

9.5 Procedural Stages 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 unlaw - ful 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 proceed - ings, with a primary focus on the public oral hear - ing (see 8.3 Live Evidence and Cross-Exam- ination ). 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 VwG - VG). According to Section 46 AVG in conjunction with Section 17 VwGVG, any evidence that is relevant to establishing the facts and appropri - ate to the case at hand may be considered. (See 8.3 Live Evidence and Cross-Examination for more details.) 9.6 Initial Sifting Process Preliminary Proceedings As mentioned earlier in 9.1 Preliminary Require- ments , complaints against decisions made by administrative authorities must be submitted to

tional Court or the Supreme Administrative Court is six weeks (Section 82 paragraph 1 VfGG; Sec - tion 26 paragraph 1 VwGG). This period begins upon the service of the administrative court’s decision to the concerned party or its oral pro - nouncement. 9.4 Evidence Required to Initiate a Claim 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 author - ity must issue a rectification order. If the deficien - cy 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 pro - ceedings. Following this, the principles of ex offi - cio proceedings and arbitrary order apply (see 8.1 Disclosure/Discovery and 8.3 Live Evidence and Cross-Examination ). The provision of evi - dence is not a prerequisite for the admissibility of a complaint.

CHAMBERS.COM

Page i Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Page 46 Page 47 Page 48 Page 49 Page 50 Page 51 Page 52 Page 53 Page 54 Page 55 Page 56 Page 57 Page 58 Page 59 Page 60 Page 61 Page 62 Page 63 Page 64 Page 65 Page 66 Page 67 Page 68 Page 69 Page 70 Page 71 Page 72 Page 73 Page 74 Page 75 Page 76 Page 77 Page 78 Page 79 Page 80 Page 81 Page 82 Page 83 Page 84 Page 85 Page 86 Page 87 Page 88 Page 89 Page 90 Page 91 Page 92 Page 93 Page 94 Page 95 Page 96 Page 97 Page 98 Page 99 Page 100 Page 101 Page 102 Page 103 Page 104 Page 105 Page 106 Page 107 Page 108 Page 109 Page 110 Page 111 Page 112 Page 113 Page 114 Page 115 Page 116 Page 117 Page 118 Page 119 Page 120 Page 121 Page 122 Page 123 Page 124 Page 125 Page 126 Page 127 Page 128 Page 129 Page 130 Page 131 Page 132 Page 133 Page 134 Page 135 Page 136 Page 137 Page 138 Page 139 Page 140 Page 141 Page 142 Page 143 Page 144 Page 145 Page 146 Page 147 Page 148 Page 149 Page 150 Page 151 Page 152 Page 153 Page 154 Page 155 Page 156 Page 157 Page 158 Page 159 Page 160 Page 161 Page 162 Page 163 Page 164 Page 165 Page 166 Page 167 Page 168 Page 169 Page 170 Page 171 Page 172 Page 173 Page 174 Page 175 Page 176 Page 177 Page 178 Page 179 Page 180 Page 181 Page 182 Page 183 Page 184 Page 185 Page 186 Page 187 Page 188 Page 189 Page 190 Page 191 Page 192 Page 193 Page 194 Page 195 Page 196 Page 197 Page 198 Page 199