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.
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