AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH
stitutional Challenge ). As a result, complaints can be lodged with an administrative court on the grounds of violations of human rights. 10.9 Proportionality Principle of Proportionality The principle of proportionality is deeply embed - ded in the Austrian administrative law system. According to this principle, an authority may only use or impose the least restrictive meas - ures necessary to achieve the intended objec - tive, considering the circumstances of the case. For instance, under Section 360 of the Austrian Trade Law, the trade authority may only take the measures necessary to safeguard certain pro - tected interests. The principle of proportionality must be taken into account even if it is not explicitly stated in a law authorising interference with rights, unless the law specifies otherwise. In general, the prin - ciple of proportionality serves as an objective constraint on any interference with rights, espe - cially constitutionally stipulated rights (see 10.8 Human Rights ). Complaint for Violation of the Principle of Proportionality In light of this, it is possible in Austria to file a complaint with an administrative court if, for example, an administrative authority has failed to adopt the least restrictive measures neces - sary to achieve the intended objective, thereby acting disproportionately. 10.10Additional Grounds Subjective Rights The term “subjective public right” refers to the legal entitlement granted to individuals under public law, allowing them to demand specific actions or behaviours from the state in pursuit of their interests. A subjective public right exists
only if it is enforceable (Austrian Supreme Admin - istrative Court, 28 August 1997, 97/04/0106). The primary purpose of subjective public rights is to protect individual interests by granting party status and the ability to request judicial review of administrative actions. Subjective public rights can be explicitly grant - ed by law. Additionally, they may be determined based on the “protective norm theory” . Accord - ing to this theory, if a legal norm imposes a duty on an administrative authority that benefits not only the general public but also specific individu - als, it is assumed in a rule-of-law state that these individuals have a subjective entitlement and, therefore, party status (Constitutional Court, 3 October 1991, B4/1991). Complaint Due to Illegality Administrative courts handle complaints based on allegations of illegality. As such, the funda - mental requirement for filing a complaint is the assertion (or at least the suggestion) of unlawful action by an administrative authority. Unlawful - ness encompasses violations of constitutional, EU, and ordinary law provisions (see 10.2 Con- stitutional Challenge ). This means that Article 130 paragraph 1 B-VG constitutionally enshrines the model of subjec - tive legal protection. If a violation of subjective rights is claimed, and this is within the scope of the claim, administrative courts should adju - dicate the matter directly under constitutional authority. 10.11Exempt Decisions Jurisdiction of the Ordinary Courts and the Constitutional Court Cases falling under the jurisdiction of the ordi - nary courts (see 3.4 Agreements Between Pri- vate Entities and Public Bodies ) or the Consti -
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