AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH
10.6 Bias Bias of Administrative Bodies
(Supreme Administrative Court, 17 November 2022, Ra 2021/02/0014). 10.5 Abdication or Fettering of Discretion Discretion of Administrative Authorities When an administrative authority is granted dis - cretion by law and exercises it appropriately, this is not considered unlawful (Article 130 Paragraph 3 B-VG). Since there can be no illegality in such a case, a complaint alleging that the authority merely exercised its discretion inappropriately must be rejected as inadmissible due to the absence of any potential illegality. Discretion of the Administrative Courts In reviewing whether an administrative authority has exercised its discretion in accordance with the law, the administrative court must assess whether the authority made a justifiable deci - sion based on the criteria set out in the law, or whether it committed an error of judgment. Such an error occurs if the authority: • disregarded relevant circumstances when exercising its discretion; • used subjective or unobjective criteria in its discretionary decision-making; • failed to exercise discretion altogether; or • grossly misjudged the weight of the relevant factual elements. If the administrative authority’s exercise of discretion is found to be unlawful, the admin - istrative court must make a discretionary deci - sion itself as part of its ruling on the matter (Supreme Administrative Court, 21 April 2015, Ra 2015/09/0009).
Administrative bodies must refrain from exercis - ing their authority and arrange for appropriate representation, particularly in the following sce - narios (Section 7 AVG): • in matters where the body or one of its rela- tives has a personal interest; • in matters where the body has been or is still acting as an authorised representative of a party; and • in situations where there are other significant reasons that could reasonably lead to doubts about the body’s impartiality. The essence of bias lies in the inability to make an impartial decision due to subjective psy - chological influences. Section 7 AVG aims to prevent administrative bodies from becoming entangled in conflicts of conscience while exer - cising their statutory duties or from appearing biased. It ensures objectivity and legality in the administration of the law. Complaint Based on Alleged Bias of the Decision-Maker If a biased body makes an official decision, it is objectively unlawful. The involvement of a biased body constitutes a procedural violation. This violation may be raised in a complaint to the administrative court against the decision that concludes the proceedings. However, such a complaint will only succeed if there are legiti - mate concerns regarding the material correct - ness of the decision (Supreme Administrative Court, 26 February 2010, 2009/02/0297). 10.7 Unequal Treatment The Principle of Equality The Austrian Federal Constitution guarantees several fundamental rights that ensure legal
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