AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH
11. Defence 11.1 Timing and Grounds of Defence Possible “Defendants” Administrative courts are responsible for review - ing sovereign administrative actions (see 1.1 General Rules or Specific Regimes? ). “Sov- ereign administration” refers to actions where the state issues orders or commands (see 3.4 Agreements Between Private Entities and Public Bodies ), which are carried out by pub - lic authorities. Whether an authority has the power to issue sovereign acts depends on spe - cific authorisations in administrative regulations. Therefore, the “defendant” in proceedings before an administrative court is typically the adminis - trative authority, which is a party to the proceed - ings, just like the complainant (see 7.2 Roles of Additional Parties ). Other parties involved in the administrative proceedings, whose interests dif - fer from those of the complainant, may also have party status in the court proceedings (see 7.2 Roles of Additional Parties ). Rights of the Parties in Administrative Court Proceedings Party status grants, eg, the following rights: • right of appeal; • interim relief; • inspection of files; • oral hearing; • pronouncement and execution of decisions; • resumption of proceedings; and • restitutio in integrum. Additionally, parties have the right to be imme - diately informed of any new arguments raised in the complaint to the administrative court and to provide comments on them (Section 10 VwGVG). However, this is not an obligation. It is not detrimental if the authority or other parties,
tutional Court are excluded from the jurisdiction of the administrative courts (Article 130 para - graph 5 B-VG). Article 130 paragraph 5 B-VG applies specifical - ly to cases where a direct appeal to the Constitu - tional Court against an administrative authority’s decision is provided by law. This provision per - tains to appeals against administrative authori - ties’ decisions to the Constitutional Court under Article 141 paragraph 1 letter j B-VG. Procedural Orders Notices are formative or declaratory rulings con - cerning formal legal relationships arising from procedural provisions. They define the legal standing of the parties under procedural law (see 2.1 Determining Susceptibility , 3.3 Government Decisions Affecting Sole Individuals and 3.5 Challenging Decisions Without Legal Effect ). In contrast, procedural orders only regulate the course of the proceedings. Additionally, a distinction must be made between notices and procedural orders based on whether the concerned party requires immediate legal protection to contest the decision or if it is more reasonable, for the sake of procedural efficien - cy, to wait until the final decision on the merits before challenging the act. Procedural orders cannot be the subject of a separate (direct) complaint before the adminis - trative courts (Section 7 paragraph 1 VwGVG). They can only be contested in a complaint against the final decision in the case.
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