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 ).
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