AUSTRIA Law and Practice Contributed by: Bernd Rajal, Maximilian Klein and Moritz Üblagger, Schönherr Rechtsanwälte GmbH
expenses) may be claimed as damages under Section 1 paragraph 1 AHG, as established by the Austrian Supreme Court (see 13.1 Damag- es ). The prerequisite for this is that these costs were incurred by a party involved in the pro - ceedings due to legally unjustifiable procedural actions, delays in the proceedings or decisions.
established by the administrative court (Section 41 VwGG). Constitutional Court The Constitutional Court hears appeals against administrative court decisions if the appellant claims that their constitutionally guaranteed rights have been violated, or if the decision was based on the application of an unlawful regula - tion or unconstitutional law (see 3.1 Challenging Primary Legislation , 3.2 Challenging Second- ary Legislation and 10.2 Constitutional Chal- lenge ). 15.2 Appeal Forums Supreme Administrative Court and Constitutional Court Appeals against decisions made by administra - tive courts are heard by the Supreme Adminis - trative Court and the Constitutional Court (see 15.1 Right to Appeal ). Administrative courts are required to determine and briefly justify in their decisions whether an appeal to the Supreme Administrative Court is admissible (Section 25a paragraph 1 VwGG). There is a distinction between an ordinary appeal (where the administrative court has ruled that the appeal to the Supreme Administrative Court is admissible) and an extraordinary appeal (where the administrative court has ruled that the appeal is inadmissible). However, the Supreme Administrative Court is not bound by the administrative court’s decision regarding the admissibility of an appeal (Sec - tion 34 paragraph 1a sentence 1 VwGG). There - fore, an appeal to the Supreme Administrative Court may be admissible, even if the administra- tive court has ruled that it is inadmissible. The 15.3 Permission to Appeal Supreme Administrative Court
15. Appeals 15.1 Right to Appeal Supreme Administrative Court and Constitutional Court
In Austria, the Supreme Administrative Court and the Constitutional Court review decisions made by administrative courts (see 1.1 General Rules or Specific Regimes? ). Administrative Court The Supreme Administrative Court hears appeals against decisions made by administrative courts based on allegations of illegality (Article 133 Par - agraph 1 B-VG). An appeal is admissible if the decision hinges on the resolution of a legal issue of fundamental importance, particularly in the following circum - stances: • the decision deviates from established case law of the Supreme Administrative Court; • there is no relevant case law; or • the legal question has not been answered consistently in prior rulings of the Supreme Administrative Court (Article 133 paragraph 4 Sentence 1 B-VG). The Supreme Administrative Court functions exclusively as a court of law, not as a court of fact. It must base its decision on the facts
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