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.
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