AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH
Constitutional Court The Constitutional Court hears appeals against decisions made by administrative courts if the appellant asserts that their constitutionally guar - anteed rights were violated by a decision or by the application of an unlawful ordinance or an unconstitutional law (see 3.1 Challenging Pri- mary Legislation and 3.2 Challenging Second- ary Legislation ). 10.3 Procedural Errors Merits and Process A complaint against a decision made by an administrative authority to an administrative court can be based on: • unlawful content; • lack of jurisdiction of the relevant authority; or • violation of procedural regulations (see 10.1 Scope of Judicial Review: Merits v Process ). However, procedural errors can generally be remedied during the complaint proceedings. 10.4 Factual Errors Facts as the Basis for the Decision Administrative courts are required to establish the factual basis necessary for their decisions in accordance with the principle of ex officio pro - ceedings (see 8.1 Disclosure/Discovery ). Incorrect Determination of Facts An administrative authority’s decision can be challenged based on the facts it has assumed. Specifically, discrepancies between the facts assumed by the authority and those contained in the case files can render the decision unlawful. A discrepancy exists when the facts determined by the authority contradict the content of the case file regarding the facts recorded therein
introducing new facts during the court proceed - ings. Binding of the Administrative Court to the Complaint Administrative courts are generally bound by the complaint in their review process (Section 27 VwGVG). The scope of the review is thus deter - mined by the grounds for the complaint and the extent to which the administrative authority’s decision is challenged. Austrian federal constitutional law is not con - tained in a single constitutional document or federal constitutional law. Instead, it consists of multiple laws, each of which either holds con - stitutional status in its entirety or contains indi - vidual constitutional provisions. The most sig - nificant of these is the Federal Constitution Act (B-VG), originally enacted in 1920. In addition to federal constitutional law, each province has its 10.2 Constitutional Challenge Federal Constitutional Law (B-VG) The standard of review applied by administra - tive courts can address both the violation of subjective rights and objective unlawfulness. This review also extends to directly applicable EU law, including the Charter of Fundamental Rights, as well as violations of constitutionally guaranteed rights. A decision by an administrative authority may be deemed unlawful if the authority has improperly applied a law with unconstitutional content. If such concerns arise, they must be presented in a manner that allows the administrative court to assess whether a request for judicial review of the legal provisions should be submitted to the Constitutional Court. own constitutional law. Administrative Courts
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