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 -
15
CHAMBERS.COM
Powered by FlippingBook