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
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