AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH
provisions in the specific case and the violation of any public or private law norms designed to prevent harm to persons or property.
graph 2 VwGVG). Nevertheless, the administra - tive courts are limited in the scope of their deci - sion on the merits, as their power to amend is restricted to the complainant’s subjective rights (see 10.10 Additional Grounds ). Only in limited circumstances can the admin - istrative court set aside the contested decision and refer the matter back to the authority for a new decision. For example, this may occur if the authority failed to conduct necessary investiga - tions into the facts of the case. When issuing its new decision, the authority is bound by the legal assessment upon which the administrative court based its decision (Section 28 paragraph 3 VwGVG). 13.4 Next Steps Where a Decision Is Found Unlawful Decision on the Merits If the complaint is neither dismissed nor the proceedings discontinued, the administrative court must issue a decision on the merits of the complaint pursuant to Section 28 paragraphs 2 to 4 VwGVG (see 13.3 Mandating Government Action Through Court Orders ). In doing so, the administrative court must address the adminis - trative matter at hand in the same manner as the administrative authority would. Its responsibility is to establish the relevant facts of the case and make a legal assessment (see 8.1 Disclosure/ Discovery ). As such, the administrative court must base its decision on the factual and legal situation that exists at the time of the decision. Referral Back to the Authority Referral back to the administrative authority and cassation can only be considered in exceptional cases (see 13.3 Mandating Government Action Through Court Orders ).
13.2 Invalidating Legislation No Right to Strike Out Legislation
Administrative courts do not have the authority to strike out legislation they deem unconstitu - tional. This power lies exclusively with the Con - stitutional Court. Indirect Method: Application by a Court to the Constitutional Court All Austrian courts are obligated to submit an application to the Constitutional Court to repeal legal provisions they believe are unconstitutional (see 3.1 Challenging Primary Legislation ). If the Constitutional Court subsequently strikes out a provision as unconstitutional, the provision must continue to apply to cases that occurred before its repeal. The repeal generally applies prospec - tively only. However, exceptions to this principle apply to cases where proceedings were initiated to review the constitutionality of the legal provision ( “case in point” : Constitutional Court 26 January 1978, B 105/1975) and to those cases that were pending before the Constitutional Court at the time of the oral hearing or the start of the non- public deliberation ( “quasi-cases in point” : Con - stitutional Court 9 October 1985, B 168/1985). 13.3 Mandating Government Action The starting point for legal protection by the administrative courts is complaints (see 1.2 Forum for Judicial Review ). However, the administrative courts generally make decisions on the merits of the case, being reformative rather than merely cassatory (Section 28 para - Through Court Orders Decision on the Merits
28
CHAMBERS.COM
Powered by FlippingBook