What type of decision-making procedure is applied?
With respect to the Administrative Court, judges are appointed by the President of the Republic, on the proposal of the Federal government. The proposal of the government itself is founded on a proposal of the plenary assembly of the Administrative Court containing the three candidates for each vacancy; the governement can only chosse between the candidates suggested by the plenary assembly (Art. 134 para 2 of the Consittution); during the last 10 years only those candidates were nominated that were held to be best qualifiied by the plenary assembly
With respect to independent administrative tribunals the exact selection/appointment procedure differs from Land to Land. In general, the Federal Constitution provides that The Land Government appoints members for at least six years. No fewer than a quarter of the members have to be drawn from professional appointments in the Federation.
What are the qualifications and terms of this kind of nomination?
With respect to the Administrative Court the nomination requires by the Constitution that all members must have completed their studies in jurisprudence or in
legal and political science and for at least ten years have held a professional appointment which prescribes the graduation in these studies. At least one third of the members must be qualified to hold judicial office (within the civil/penal justice), while at least one quarter should be drawn from professional appointments in the Laender, whenever possible from the Laender’s administrative service. All members of the Administrative Court are professionally employed judges.
The qualification of the nomination itself: see 1.1
With respect to Independent Administrative Tribunals the Federal Constitution provides that the members of the independent administrative tribunals must be jurists. For their period of office they may not practise any activity liable to evoke doubts as to the independent conduct of their office. The members of the independent administrative tribunals are not bound by any instructions in the performance of the tasks referred to them. More specific provisions are established by each different law of the Laender (e.g. in Vienna at least 5 years of practical experience in the law field after having finished the law studies are a pre-requisite)
Is there specific professional background such as previous work record in the administration or general legal training included?
Answers see 1.2
What are the possible contents examined during this procedure?
No specific content examined during this procedure is prescribed by law, neither with respect to Administrative Court nor with respect to the Independent Administrative Tribunals.
Who decides and who selects and appoints the aforementioned decision –makers?
With respect to appointments for the Administrative Court the decision-maker are already defined in the Federal Constitution (see 1.1; Article 134 of the Federal Constitution); with respect to the Independent Administrative Tribunals the Federal Constitution provides that the respective Land government appoints the members of the tribunals.
Does the law provide for judicial remedies against such decisions?
Not explecitely. The appointment as a judge is an adminstrative decision and could - as such - in principle be challenged before the Administrative Court under the condition that individual rights ("subjektive Rechte") of the candidate would be involved. Concerning judges no specific jurisdiction of the Administrative Court exists. Generally the Administrative Court’s jurisdiction concerning the question, whether a candidate has an individual right to be appointed as civil servant (and therefore is entitled to appeal against such a deicision) is very restraint.
Does there exist any difference in the way the selection/appointment of judges of the civil/penal courts takes place?
Yes, the selection and appointment for judges of the civil/penal courts differs in so far, as the Federal Constitution forsees that save as provided otherwise by this law, judges are appointed pursuant to the proposal of the Federal Government by the Federal President or, by reason of his authorization, by the competent Federal Minister; the Federal Government or the Federal Minister shall obtain proposals for appointment from the chambers competent through the law on the organization of the courts. If a sufficient number of candidates is available, the proposal for appointment to be submitted to the competent Federal Minister and to be forwarded by him to the Federal Government shall comprise at least three names, but if there is more than one vacancy to be filled at least twice as many names as there are judges to be appointed (see Article 86 of the Federal Constitution and in more detail the Richterdienstgesetz; other than those from the plenary assembly of the Administrative Court,the proposals coming from these chambers are not binding at all).
With respect to members of Independent Administrative Tribunals the selection/appointment differs as well from civil/penal courts.
Is it possible for “external candidates” to be appointed as judges at different court levels and instances?
With respect to the terms of candidature see 1.2. Therefore, generally spoken, a nomination of “external candidates” is possible under the given conditions circumscribed in 1.2. As there does not yet exist an administrative judicial procedure on more than one level, the problem of candidature for different court levels/instances does not arise.
Are those legal provisions concerning the ways of selection/appointment of judges constitutionally entrenched?
Yes, see above (Article 134 of the Federal Constitution with respect to Administrative Court and Article 129a with respect to Independent Administrative Tribunals)
Describe in brief the conditions of service and tenure (security of tenure, suspension and removal, transfers etc.) of the judges:
Is the term of judicial appointment for life?
With respect to members of the Administrative Court Art. 134 para 6 of the Constitution establishes that retirement is due latest at theend of the year when the judges turn 65. Therefore there does not exist a judicial appointment for lifetime, neither for members of the Administrative Court nor for members of the Independent Administrative Tribunals in the Laender (corresponding to the respective laws in the Laender, in which no such appointment is forseen).
Is it possible to extent the term of service of judges beyond retirement age? In this case who has the power to take the decision?
Is it possible to appoint temporary judges?
With respect to Independent Administrative Tribunals, however, emphasis must be given to the point that some Laender still provide for appointment periods of members for a period of only 6 years (in accordance with the provisions of the Federal Constitution).
Is it possible for the judge to be removed or transferred and under what specific terms?
A member of the Administrative Court may be removed with respect to certain disciplinary sanctions. Disciplinary matters regarding members of the Administrative Court and their involuntary retirement shall be subject to the rules otherwise in
force for judges. The Plenary Meeting of the Court shall be the
disciplinary court. The disciplinary punishment of removal from office may only be imposed if at least two thirds of the members of the disciplinary court vote in favour of it (see paragraph 7, Administrative Court Act).
A transfer of a member of the Administrative Court is not applicable, because only one Administrative Court exists.
With respect to members of the Independent Administrative Tribunals similar disciplinary sanctions are forseen by the different laws in the Laender. The Federal Constitution only notes that Members of the independent administrative tribunals may before expiry of the period of appointment be removed from office only in the legally specified instances and only at the resolution of the independent administrative tribunal.
In general, by different laws in the Laender also a removal of a member is possible under given circumstances. Generally specific disciplinary Committees are established by the different laws, being competent in disciplinary matters. A transfer to another Independent Administrative Tribunal is not provided by law.
Where does the power of removing or transferring judges from one office to another lie?
With respect to members of the Administrative Court, the power lies with the plenary meeting of the Court, where two thirds of the members have to vote for the removal.
With respect to members of Independent Administrative Tribunals the regulation differs in each Land, however, generally spoken, specific Disciplinary Committees are established (e.g. in Vienna: a three-member-Committee where one member is voted by the members of the tribunal, one member is nominated by the representatives of the personnel and one member is nominated by the president of the tribunal. Members are elected for a period of 5 years. The Disciplinary Committee decides in first instance. In the case of a pending removal, it is the plenary assembly, which is competent to decide in second instance. In cases of other sanctions, an appeal can be lodged to the Disciplinary Senate of the Land Wien, deciding in second instance. The four members of the Disciplinary Senate are nominated by the Land government for a period of 5 years).
Is it possible to transfer between the different divisions and types of courts?
Within the Administrative Court a transfer between different divisions (covering different areas of law) is possible. The membership of a judge to a certain division depends on the case assignement enacted by the plenary assembly. Generally changes of divisions only takt place if desired by the respective member of the Court.
The same applies generally for a transfer within Independent Administrative Tribunals. Other transfers are not possible.
Is it possible to transfer to government administration and back?
Administrative Court: The Federal Constitution provides that members of the Federal Government, a Land Government, or a popular representative body cannot be members of the Administrative Court; for members of a popular representative body elected for a fixed term of legislation or office such incompatibility continues until the expiry of that term of legislation or office even though they prematurely renounce their seat. Anyone who during the preceding four years has exercised one of the functions specified above cannot be appointed President or Vice-President of the Administrative Court.
With respect to Independent Administrative Tribunals the Federal Constitution only prescribes that for their period of office they may not practise any activity liable to evoke doubts as to the independent conduct of their office. The different laws in the Laender provide more detailed provisions (e.g. in Vienna it is forbidden to practise any activity liable to evoke doubts as to the independent conduct of their office during the tenure as member of the tribunal). However, e.g. the Viennese law grants a right to get leave for a limited period of time, in case one becomes member of the National Council or other parliamentary institutions.
Does a transfer to the administration have a career-promoting effect?
Is incompetence a ground for removal of a judge from the bench?
Yes, see 2.4 and 2.5.
Financial security (salaries, remunerations, pensions etc.)
Who determines judicial salaries?
In case of members of the Administrative Court, the salaries are based on a federal law.
In case of members of Independent Administrative Tribunals the salaries are determined by the respective Land (e.g. in Vienna: it is founded on the law Besoldungsordnung)
In what way and under what conditions are the salaries of judges increased? Are they accompanied by annual cost-of-living adjustments?
They are increased by changing the respective laws as a result of collective bargaining, which is also influenced by annual cost-of living adjustment. But there is no flexible or automatic adjustment to an increase in comparison to the rise of living costs.
Is there a need for executive approval or executive decision to initiate the increase?
No, because it falls into the competence of the legislator; nevertheless it is the government that makes the proposal for the respective law.
Is it possible for the judges to initiate judicial proceedings against the State with regard to their remuneration and which are the competent courts in this case?
Yes, the members of the Administrative Court could (theoretically) initiate an administrative proceeding before the President of the Court (of course this decision can only be based on the respective law mentioned above) and then appeal against this administrative decision of the President to the Administrative or to the Constitutional Court (before the Constitutional Court it could be possible to challenge the law as unconstitutional, f.e. if it is "unobjective"-"unsachlich"). This never happened.
Also members of Independent Administrative Courts can also initiate proceedings before the administrative authorities of the respective Land, with right to lodge a complaint against this decision with the Administrative Court/Constitutional Court.
Is there a uniform salary scheme for all courts, divisions and types?
Generally spoken, with respect to the Administrative Court there is one salary scheme based on the law, which contains distinctions (four steps), depending on the length of service. This scheme does not make distinctions between presidents of divisions and other judges, whereas law provides for higher salaries for the President and the Vice-President.
With respect to the Independant Administrative Tribunals, there exists one salary scheme for each tribunal (e.g. in Vienna forseeing one scheme for the members, another one for the vice-president and a third one for the president of the tribunal, and differing within the schemata with respect to the duration of internal career), proceeding to the next grade of salary scheme every two years.
Career prospects (promotions etc.)
Describe briefly the ways in which the promotions of judges are made. What kind of procedures apply in this case?
With respect to the Administrative Court, members of the Court have generally a career prospect insofar, as they can become president of a division, practically only depending on the principle of seniority.
With respect to members of Independent Administrative Tribunals, internal career prospects depend on the respective laws and provisions in the Laender (e.g. in Vienna: none)
Indicate the competent body for the promotions and the criteria applied thereto.
Appointment procedure for presidents of divisions is the same as described under 1.1.
Are judges of the administrative courts promoted to the Supreme Administrative Court and under what conditions (seniority etc.)?
For the members of the Independent Administrative Tribunals no (special) promotion to the Administrative Court is forseen. Nevertheless they have the possibility to apply for membership in the Administratitive Court in the course of a procedure mentioned under 1.1.
Can judges accept any government assignment after retirement?
In principle, yes
Standards of conduct (professional and service Code, public activities, law-related activities etc.)
Can a judge be involved in law-related activities (arbitration, law practice, writing books)?
Can a judge be involved in business activities?
Is the judge entitled to sideline employment?
5.1. - 5.3.: In general yes, given the principle that the members of the Court or Tribunals may not practise any activity liable to evoke doubts as to the independent conduct of their office. In addition to the aforesaid, the member is as well obliged to give notice on the fact of his sideline employment.
Is there a Code of conduct of judicial behaviour?
Only concerning employment (see 5.1.).
Is there a Commission on Judicial Conduct or any other body to supervise the behaviour of a judge?
Disciplinary sanctions, see 2.4 and 2.5
Describe the restrictions –if there are any- on judge’s right to express his/her views?
The Federal Constitution proclaims for all functionaries entrusted with Federal, Laender and municipal administrative duties as well as the functionaries of other public law corporate bodies that they are, save as otherwise provided by law, pledged to secrecy about all facts of which they have obtained knowledge exclusively from their official activity (official secrecy).
Inspection of judges and disciplinary proceedings
Who is in charge of the inspection of judges and in what way is this inspection conducted?
Regarding the Administrative Court the President is charged with the supervision of judges. There is no formal "inspection".
Regarding the Independent Administrative Tribunals, different legislation exists in the Laender. For instance in Vienna, there exists a Committee being in charge of supervising the correct fulfilment of duties of the members. Generally for each member every three years such proceedings are held and examination of the fulfilment made.
Three members of the tribunal (elected by majority of members for a duration of 3 years), in addition to the president and vice-president of the tribunal are member of the Committee. They decide by majority. An appeal can be lodged before the plenary assembly against the decision of this Committee, which then decides finally.
Are there specific criteria for the evaluation of the performance of judges?
Regarding the Administrative Court no.
Regarding the Independent Administrative Tribunals the laws differ from Land to Land. For instance, the Viennese legislation provides in a very general way that criteria for the evaluation of the performance of the judge are the specific knowledge to fulfil his specific duties, the ability to comprehend, to communicate (orally and in written form) to hold oral hearings,his/her willingness and dedication to work….
Who holds the legal power to initiate disciplinary proceedings against the judge?
Regarding the Independent Administrative Tribunals the power lies with the Disciplinary Committee (see 2.4 and 2.5)
Regarding members of the Administrative Court, the Administrative Court Act provides that disciplinary matters regarding members of the Administrative Court shall be subject to the rules otherwise in force for judges. The procedure can be initiated by the President. The Plenary Meeting of the Court shall be the disciplinary court. The Procurator General has the same duties as he has in disciplinary proceedings against judges of the Supreme Court (his opinion is heard by the Plenary Meeting).
Who decides the disciplinary tribunal and its composition? Is it permanent or ad hoc?
For the Independent Administrative Tribunals see 2.5.
For the Administrative Court see 6.3 and 2.4. Thus the disciplinary tribunal is established by law.
Is there a legal remedy against the decisions of the disciplinary body provided for by law?
For the Independent Administrative Tribunals see 2.5
For the Administrative Court: none
Is there a special procedure for investigating and prosecuting a judge?
Regarding Independent Administrative Tribunals: the procedure depends on the different laws of the Laender, but generally for each tribunal an exact procedure is regulated.
Regarding the Administrative Court: the procedure, which exists, is adopted from rules otherwise valid for judges. There is special procedure explicitely established.
2.a./ General aspects
Separation of powers and judicial independence
Indicate where the responsibility for the central court administration lie?
Independent Administrative Tribunals: the government of the respective Land (the president of the Tribunal is submitted to its instructions)
Administrative Court: the president, without being submitted to instructions from the Federal Government of its members
Individual and collective independence of the judiciary
Is it possible for sanctions (of any kind) to be imposed on a judge based upon the content of his/her decision?
Sanctions not; however, in case of incompetence and therefore non-fulfilment of duties: see I/6.1 and I/6.2
Can a judge face disciplinary charges solely on the basis of the substance of his/her ruling? Is this a case when a judge declines to follow a supreme court’s decision?
Do you think that accountability of judges threatens judicial independence?
Regarding the decision itself: yes
Regarding the fulfilment of duties: generally no
Can a judge be held liable in civil actions for his/her judicial acts (e.g. be sued for damages for actions taken in his/her judicial capacity)?
Concerning the Independent Tribunals:
In case of heavy faults the respective Land is liable for damages suffered by the parties of the procedure ("Amtshaftung"). The claim for compensation is dealt before civil courts. In serious cases, the Land can then have recourse to the respective judge.
Concerning the Administrative Court:
Due to the position of the Court as a supreme jurisdiction it is not possible to get compensation for (affirmed) mistakes of the Court concerning the application of national law (no "Amtshaftung" before civil courts). Nevertheless heavy faults concerning the application of community law by the Administrative Court can make the state liable according to the jurisdiction of the European Court of Justice (case Köbler). Such a procedure falls within the competence of the Constitutional Court ("Staatshaftung"). It has not yet been decided whether in case of liability of the Federation for decisions of the Administrative Court that infringe community law the Federation can have recourse to the respective judge.
2.5. Are judges immune from prosecution in other courts for their judicial acts?
See I/2.4, other “prosecution” is not known
2.6. Can criminal charges be brought against a judge for actions on his/her duties?
In principle only if he/she committed a crime by fulfilling his duties/actions
2.7. Do judges face sanctions for “decisional conducts”?
Generally not, see I/2.1 and I/2.2
Judicial administration at the Court level (division of work among judges and assignment of cases etc.)
Is the division of work among judges and the assignment of cases to each judge or panel done according to a predetermined rigid plan or is it flexible and may be changed easily?
According to a predetermined rigid plan
Who is in charge of case assignment?
Regarding the Independent Administrative Tribunals specific Committees are installed by different laws of the Laender, being in charge (where e.g. in Vienna 3members are voted by majority of the plenary assembly, including the president and the vice-president). This Committee decides by majority on the distribution of cases, according to an internal regime. This regime provides that different members are specialized in different areas of law.
Regarding the Administrative Court the case assignement is enacted by the plenary assembly for each year in advance. The President decides which member of a certain division has to act as reporter.
4. Judicial self-administration
4.1. Is judicial administration effected through independent judicial self-governance?
Judicial Administration is effected by the president.
4.2. Describe briefly how the governing body/committee is elected?
Regarding Independent Administrative Tribunals: depends on legislation of the Laender, e.g. in Vienna: nominated by the Land government
Regarding the Administrative Court: the president and vice-president are appointed by the President of the Republic, on the proposal of the Federal government.
4.3. Is there any restriction for the members of the above body to participate in other syndicalistic bodies?
generally not, see I/5.1
5. Human, financial and material resources necessary for the performance of judicial functions
5.1. Who is responsible for the administrative staff employed in the courts?
5.2. Who is competent to make available the necessary funds for the performance of justice? president
5.3. Who has the power to execute and spend the budgetary allocations? president
2.b./ The relation between administrative jurisdiction and other powers:
relations with the executive (the influence of the Administration on the judge etc.)
Have there been cases of executive pressure on judges in any form? Not known on a broad basis
Can judges be members of the Government? See I/2.7
Is it allowed for judges to participate in administrative bodies having decisive or consultory competences?
For Independent Administrative Tribunals: see in general I/2.7 and I/5.1, for the Administrative Court see I/5.1
Do the administrative courts have the power to challenge administrative acts of general character (presidential decrees etc.)?
Yes. The Constitutional Court pronounces on application by the Administrative Court or by an independent administrative tribunal, whether statutory regulation issued by a Federal or Land authority are contrary to law
relations with the legislature (retroactive legislative reversals of cases etc.)
Can the legistlature override a decision of a court if they disagree with the way the latter has applied or interpreted a law? Not for the specific case in question but in general amendments of laws with retroactive effects are permitted under specific limited circumstances
Have there been retroactive legislative reversals of court decisions? Not known
Has there been legislation abolishing courts with results of statutory removal of judges and if so, how was it received?
In case of administrative jurisdiction no; but there were violent political discussions concerning the abolishing of the Viennese Juvenile Criminal Court that took place in the last legislation period.
pending cases? No, but problems might occur when the Independent Tribunals will be changed into Administrative Courts of First Instance (in the political discussions some opinions were expressed - by administrations - that the members of the Tribunals should not automatically been taken over as members of the Courts that will be newly established).
Can judges be members of the legislature?
See I/2.7 and I/5.1
Do the administrative courts have the power to challenge laws?
Yes. The Constitutional Court quashes on application by the Administrative Court or an independent administrative tribunal laws enacted by the legislator of the Federation or of a Land as unconstitutional.
Interest representation of administrative judges
Are judges organised in associations for furthering their rights and interests?
Yes, two national associations representing administrative judges (one for the Administrative Cout and the other one for the Independent Tribunals) exist.
Are there separate professional representation for administrative judges, or a joint association of judges? There is no joint association, even though some of the members of the Administrative Court are also members of the association for judges working in the normal justice. Moreover all three association cooperate in their efforts to improve the situation of all Austrian judges.
What are the specific activities of the aforesaid association?Describe them in brief.
To safeguard independence, foster existing rights, assure the best fulfilment of duties
Do judges have the right to strike or to hold a demonstration? Yes concerning demonstrations. Strikes are not explicitely forbidden and already happened. Whether they are legal has never been decided by courts and is a subect of controversial juridical discussions.
2.c./ The relation between administrative jurisdiction and the society:
The administrative judge and the media scrutiny (the press, the judiciary and the courts, criticism of judicial decisions etc.)
Is criticism of judges, judicial decisions and judicial conduct in the press existent, frequent, rare? What are the relevant grounds for this? Could you give major examples? Depends on case and interest of public in case
Are trials open to T.V? no
Do you think that press reporting and commenting on judges, courts, judicial decisions and matters pending before the courts poses a challenge to judicial independence? no
The administrative judge and the public opinion
Do you think that a judge’s engagement in politics or speaking his/her mind in favour of a political party compromises the public confidence in the judiciary?
Depends on his/her concrete fulfilment of job and concrete duties and areas of law
Are there institutions that favour strong public opinion in defence of the idependence of the judiciary? No
Judges and politics
Is it allowed for judges to become member of political parties? yes
Are there any major restrictions for judges with regard to their political activities? What are the consequences in case of breach? See I/2.7, consequences are disciplinary measures
Are there any other restrictions for judges as far as their public activity is concerned? General principle as I/5.1
Have there been cases where political leaders attacked the judges and criticised their decisions? yes
The judge and his work
Describe briefly the kind of the initial training and the qualifications of an administrative judge prescribed by law and his further education and/or formation, inter alia in European law, emphasizing more particularly the aspects which might help the judge to improve the efficiency of administrative justice.
Regarding formation and further education once appointed as judge depends basically on the initiative and policy of the respective president of the court/tribunal. Eg. At the Viennese Independent Administrative Tribunal hardly any possibility for further formation or education exists, neither specifically on European law.
Do you think that a higher salary paid to the judge and, more specifically, other (material) advantages which may be granted to him in consideration of the output might help to improve the efficiency of administrative justice?
No. However, it is noteworthy that at the Austrian Independent Federal Asylum Tribunal the president initiated a project, giving those members a surplus of +15% allowances, in case they have a surplus of output of an amount of +15%.
Please indicate the number of administrative judges in your country and compare it to the population being under their jurisdiction (an average number can be indicated per country).
App. 220 members of independent administrative tribunals all over Austria plus 62 judges working at the Administrative Court. The population of Austria is app. 8 million.
Please indicate the number of legal or other assistants (including clerks, secretaries …) working for the administrative jurisdictions, indicating more particularly the average number per judge working at an administrative court.
At the Administrative Court app. 20 legal assistants are attached to 62 judges (or the respective divisions) plus a number of secretaries (working as well in the library and office for documentation/office of records) and clerks. At the Independent Administrative Tribunals the situation differs from Land to Land. Eg. In Vienna there are no legal assistants attached to the members or chamber, there is a a number of 3 secretaries attached to 3 members (=one chamber) and app. 10 clerks (including those working in the library and office of records as well as for the president with regard to judicial administration).
Describe briefly the working conditions of an administrative judge in your country, emphasizing more particularly the technical means which are at his/her disposal, as well as legal or other assistants helping him/her in his/her duties, his/her access to libraries and data bases, access to internet and so on…
Regarding legal assistants: see III/1.4 above.
Regarding technical means: computer with access to internet and various databases for research and more or less well equipped library at the disposal for judges/members of Independent Administrative Tribunals
Describe briefly the internal working regulations of an administrative court and more particularly the way in which the work is distributed among the judges, the person in charge of the distribution of the work to be done by the respective judge and of the control of his/her work, indicating inter alia the criteria according to which the way of distribution is decided as well as the criteria according to which the work of the administrative judge is controlled, as well as the possible sanctions which may be taken against the judge who does not fulfil the legal or internal requirements concerning the quality of his/her work. Describe in this context internal control procedures (if there are any).
Regarding Administrative Court and Independent Administrative Tribunals:
For distribution of work: see 3.2
For control of the work of the judge: see I/6.1, I/6.2. In addition to these measures, mention must be given to the fact, that decisions of the Administrative Court are generally decisions of panels of at least 3 judges. Insofar there is an internal “control” given.
Regarding possible sanctions: see I/6.3, 6.4 and 6.5
The jurisdictional procedures
Describe briefly the access to administrative justice, indicating more particularly whether the complaint or file has to be introduced by a lawyer or any other professional and the conditions under which the plaintiffs may have access to legal assistance. Can you also indicate whether the procedures are accomplished only on a written basis or whether also oral hearings take place, indicating in which cases such oral hearings are organised and the persons who, at these occasions, are allowed to make oral submissions to the court.
the access to the Administrative Court itself is a priori not free of fees. There is a need to have a lawyer to lodge the appeal itself. In case of tax law cases, the appeal may also be lodged by an auditor. In cases of alleged violation of civil service law, the respective applicant, if he had studied law him/herself, may lodge an appeal by him/herself. For the further proceeding a representation by a lawyer is no longer obligatory.
In any case it is possible to apply for legal aid, in which case it might be possible not to be obliged to pay the application fee and to be granted a lawyer to submit the application for free. The condition to be granted legal aid is that the applicant is not able to pay the costs for the enforcements of his claim and that the claim a priori must not be unfounded. Regarding oral hearings: a hearing before the Administrative Court is to be held on the complaint if petitioner has, within the term allowed for filing the complaint, or other parties to the case have requested a hearing to be held or when the reporting judge or the chairman deems
suitable or the panel decides to hold an oral hearing. However, the respective procedural law provides for the Court to refuse an oral hearing in spite of a respective appliaction from a party. Practically oral hearings are only held when they are necessary to fulfill the requirements deriving from Article 6 of the Convention.
The access to Independent Administrative Tribunal is generally free of charge, as they decide as second instance (after the decision of the respective administrative authority). There is no obligation to be represented by a lawyer. Legal aid can possibly be granted in cases of criminal administrative proceedings if the applicant is not able to pay the costs for the enforcements of his claim and to the extent this is required in the interest of a due process of administrative law, and in particular in the interest of an adequate defence.
Generally spoken oral hearings must be held with respect to each case pending.
Describe briefly the different types of procedures which can be introduced at an administrative court, insisting inter alia on the differences existing between those procedures.
Administrative Court: it decides on the illegality of administrative decisions enacted by administrative authorities as last instance of the administrative law suit (including decisions from the independent administrative tribunals) and it decides as well on the breach of the onus on administrative authorities including the independent administrative tribunals to take a decision.
Independent Administrative Tribunals: they decide in second/last instance (before a complaint can be lodged before the Administrative Court) in criminal administrative matters (fines imposed by the administration) and (certain) other administrative matters.
Describe briefly the different steps of the procedures to be followed at an administrative court of your country, starting with the date the file is introduced until the date the judgment is pronounced, insisting more particularly on the deadlines which may have to be respected by the parties in order to introduce written notices, briefs, pleadings, statements as well as on the deadlines to be respected by the judge to pronounce the judgment.
The Administrative Court: The Deadline for submitting a complaint against the ruling
of an administrative authority is six weeks. A complaint for breach of the duty to reach a timely decision can be raised only when the highest appealable authority has failed to pass a decision within the legal timely limits (usually six months). The contents of the complaint is strictly fixed by law. Generally spoken, the complaints do not have suspensive effects, this can be granted. The same applies to legal aid. In the phase of possible pre-trial proceedings the responding authority has right to be heard and may submit as well a defence of its decision (vice versa if the minister complains about a decision taken in favour of an applicant). The deadline for the response is 8 months.
Regarding procedures before the Independent Administrative Tribunals the deadline to submit an appeal is generally spoken 2 weeks (with exceptions). There are no other different steps of procedure to be fulfilled, but the procedure depends on the exact case (oral hearing, expert hearing etc..).
Describe briefly the internal organisation of an administrative court, and indicate whether the judges are working in chambers or if they are acting as individual judges, as well as the criteria according to which a case is dealt with either by a chamber or by an individual judge.
Administrative Court: As a rule the panels consist of five members (panel of five),penal matters of three members (penal panel or in case of e.g. rejecting the file, stay of proceedings), one of whom presides over the panel and another one renders the report. They decide on the various cases assigned to them in accordance with the distribution of business. A keeper of minutes shall assist.
Independent Administrative Tribunals:
in administrative cases generally they decide through single members
in administrative penal cases they decide as well generally through single members, however, in certain cases (especially when the fine imposed in the appealed ruling exceeds 2000.—Euro) through chambers of three members.
Which kind of procedures do apply in case an urgent matter of any kind is introduced with an administrative court? Indicate also what kind of decisions may be taken by the judge dealing with this kind of urgent matters.
What kind of interim measures or measures of suspensive effect may be granted by
your Court upon the receipt of a complaint?
a) suspension of the administrative act complained against,
aa) becomes effective when served to the parties,
bb) may also have retroactive effect,
b) my Court may order any interim measure deemed necessary when the interests
of justice so require.
What are the legal criteria for a decision to give an order of suspensive effect or
order an interim measure?
a) Does the prospective outcome of the proceedings have any relevance?
b) Please give a short description of the content of the legal provisions concerned.
Regarding Administrative Court: Article 30 of the Administrative Court Act provides that
the complaints have no suspensive effect by virtue of the law. The same is true for a motion for reinstatement into the status quo ante because of expiry of the period of time allowed for the complaint. Upon request of petitioner, however, the Administrative Court is to
issue a court order in favour of the suspensive effect, unless it would be contrary to mandatory public interest and after consideration of all interests affected, whether the implementation or the use of the license by a third party, as granted by a ruling, would constitute an unreasonable
disadvantage for petitioner. After any considerable change in the circumstances relevant for the decision in favour of the suspensive effect of the complaint, the matter has to be decided anew in case of being requested by a party. The reasons for the decision in favour of the
suspensive effect need only be stated if interests of third parties are affected. These Court orders shall be served to all parties. In case the suspensive effect is granted, the authority shall suspend execution of the ruling contested and take the necessary steps to this effect; the holder of the contested license is not allowed to practice the license.
Regarding Independent Administrative Tribunals: appeals generally have suspensive effects per se. However, in specific, limited cases, the administrative authority of first instance is entitled to exclude the suspensive effect if early enforcement is in the interest of a party or for the common good because of imminent danger (in these cases generally the decision in the merits is taken as soon as possible).
Indicate the types of control the administrative court may exercise over the activities of the administration or over the decisions taken by it: is it a control only of the legality of its decisions or can the judge also control whether the discretion was used by the authority in the spirit of the law? Is the judge allowed to take a decision instead of the administrative authority? Do there exist other types of control procedures?
Regarding Independent Administrative Tribunals: they take a decision instead of the administrative authority of first instance, have full rights to gather new evidence etc… With respect to control procedures in cases of Complaints against exercise of immediate orders or coercive power by administrative authorities the Independent Adminstrative Tribunals decide on the bases of the facts of the case and the reasons on which the claim of unlawfulness is based, which are alleged in the complaint itself.
Regarding the Administrative Court: It generally pronounces on complaints which allege
illegality of rulings by administrative authorities including the independent administrative
tribunals, or breach of the onus on administrative authorities including the independent administrative tribunals to take a decision. No illegality exists where legislation forbears from the establishment of a binding rule on an administrative authority’s conduct, leaving the determination of such conduct to the authority itself, and the authority has made use of this discretion in the spirit of the law. Thus the Administrative Court generally does not take a decision itself instead of the administrative authority (except in cases of breach of the onus to take a decision), but it may either dismiss the complaint or give way and annul the appealed decision (in this context the Administrative Court also controls whether the discretion was used in the spirit of the law). In case of annulement the administrative authority is obliged to meet a new decision.
Indicate the delays of the procedures introduced with an administrative court, starting from the date of introduction of a complaint until the date the judgment is pronounced (average delays).
Is there any remedy against undue length of the proceedings for the parties of the
proceeding before courts? Is this
a) a remedy provided by law (please give a quotation of the legal provision)
b) a remedy of informal character (please give a short indication of its content).
What may be the result of such a remedy?
a) actual acceleration of an individual proceeding
b) payment of just satisfaction
c) reduction of a penalty imposed
d) disciplinary measures against individual judges
Which authority is responsible to deal with such a remedy?
a) the president of the Court
b) a supervising judicial body
c) an administrative authority
Regarding the Administrative Court: there is not explicitely mentioned by law a certain delay of pending cases (except the provision of Art. 6 ECHR). The average length of procedures was 22 months (in 2005). There is no remedy provided by law against undue delays. To achieve an acceleration the only possibility is to inform the reporting judge (directly or via the President) about the reasons that make the decision of a certain case in particular urgent. The reporting judge will then give priority to this case. When the party thinks that a judge is disciplinary responsible for the delay the possibility exists to ask the President to initiate a disciplinary proceeding against this judge. There also exists the possibility to reduce imposed penalties in case of undue delays of administrative criminal proceedings before Tribunals and Courts. When the Constitutional Court deals with such a case he also states infringements of Art. 6 of the Convention.
Regarding the Administrative Independent Tribunals: in administrative cases there is a maximum delay allowed of generally 6 months (irrespective of the difficulty of the case). After this period of time the applicant may lodge a complaint before the Administrative Court alleging a breach of the onus on administrative authorities including the independent administrative tribunals to take a decision. With respect to administrative penal cases after expiry of a 15 months’ period (and prosecution against an individual person may only be made within 3 years time after commitment of the delict) after an appeal has been served against a fine the fine shall become ineffective by law; the proceeding shall be dismissed.
Which kind of means are at the disposal of the administrative judge (or the parties) in order to provide for a correct execution (enforcement) of the judgment. Does the judge have the possibility to give injunctions to the administration? Do there exist specific procedures which the parties may use in case the administration does not voluntarily execute the judgments?
When the Administrative Court quashes an administrative decision the administrative authority has to take a new decision that has to comply with the legal fews expressed by the Administrative Court in its decision. Further injunctions cannot be given to the administration. An execution of a decision of the Administrative Court (concerning the expenses or in case of a decision on the merits of a case when the administrative authority is in delay) is possible. The execution falls into the competence of ordinary (district) courts.
Decisions of the Independent Tribunals on the merits of the case are held as administrative decisions and can be executed according to the rules for the execution of administrative decisions (they are usually executed by the administration).
Which kind of new technologies are at the disposal of the administrative judge and do the procedures to be followed at the administrative court provide for the possibility to use standard forms or electronic transmittal techniques (for example, are the parties allowed to introduce the briefs by way of mail or other electronic transmittal systems) ?
Meantime it is partly possible to lodge appeals before the Independent Administrative Tribunals via mail or fax. Not so in cases of complaints before the Administrative Court, needing the original signature of the advocate.
Do the administrative courts in your country possess central computer systems to which all judges are linked, and comprising inter alia data bases, general information, laws, procedural acts, access to electronic files and so on
Electronic files are partly provided by different administrative authorities, mainly ministries. There is no common linkage between judges. However, there exists a database, covering not only the laws but also jurisprudence of the Administrative Court, Constitutional Court, Civil/Penal law Courts, specific authorities covering public procurement law and some decisions of Independent Administrative Tribunals, as well as access to the European law databases.
Indicate whether you think that the facilities used by the administrative courts and the means put at the disposal of these courts by the State are appropriate and, if this is not the case, indicate the problems you have noted in this context and the possibilities to remedy.
Facilities are generally appropriate.
Indicate the total amount of money spent by the State to ensure the functioning of administrative justice, compared to the total amount of the State budget
No integrated figures available, due to split competences of Federation /Lander.
Concerning the Administative Court:
Expenses for 2006: 11,5 millions €
Budgetary expenses ("Allgemeiner Haushalt"): 66.171 millions €
Do there exist alternatives to the contentious proceedings, for example mediation, arbitration procedure and so on in your country?
Yes, but not formally in the field of administrative law.
Which kind of effective legal remedies can be used against a judgment of an administrative court of first instance?
Complaint to the Administrative Court.
Do the administrative courts in your country have a person in charge of the relations with the press (press speaker)?
The Administrative Court: yes, the Independent Administrative Tribunals: no
Do the administrative courts in your country prepare annual reports about their activities? Is this report available to the public? To whom/ or to which body this report is it addressed? Yes, there exists an annual report in any case, being available to the public. In case of Independent Administrative Tribunals the report is addressed to the respective Land government. In case of the Administrative Court it is addressed to the Federal Chancellor.
1.2. Does there exist a possibility to access by internet or by any other means the judgments pronounced by the administrative courts and other documents which might be relevant for the public/parties?
Decisions of the Administrative Court are generally accessible via the mentioned database. Decisions of the Independent Administrative Tribunals are only partly available via that database. However, there exists the possibility for the public to ask for decisions, which are available at the Independent Administrative Tribunal.
1.3. Do the parties of the case pending at an administrative court have the possibility to get information, by electronic or other means, about their file and the state of the proceedings
The parties of the case have a right of inspection of the files.
1.4. Do the administrative courts of your country have the possibility to exchange information or experience with other national or international courts or with courts situated in other countries and, if this is the case, could you give more information about this kind of exchanges?
No formally installed exchange possibilities exist for Independent Tribunals. The Administrative Court is linked with other Supreme Administrative Jurisdiction via the European Association of Councils of States and Supreme Administrative Jurisdiction that has also installed a documentation concerning decisions of their member courts.
Control of the activities of the administrative courts
2.1 Do the administrative courts prepare statistics about affairs settled during the judicial year, about the stock of affairs pending and about the number of affairs dealt with by individual judges?
2.2 Do the administrative courts possess electronic systems to ensure the follow-up of the affairs pending (e.g. electronic file system…)?
2.3 In your country, are there mutual or internal evaluations (on periodical basis) of the quantity and quality of the work to be done by the court? Which is the body which is competent to prepare this kind of evaluations, are they done by the court itself or by any other bodies, authorities or courts? Do there exist control procedures of the judicial work done by the administrative judges and, if this is the case, by which kind of authorities (national or international) are these procedures accomplished?
There exist annual reports published by the Administrative Court/respective Independent Administrative Tribunals (see IV/1.1) and there exist internal control mechanisms (see I/6.2,6.3,6.4).
On an international level there are evaluation mechanisms concerning effeciency exercised by the CEPEJ.
Austria is member of the ECHR. In this regard administrative jurisdiction is controlled by the European Court of Human Rights.
2.4 Which kind of sanctions may be taken against individual judges in case of misbehaviour or in case the work to be done by judges has not been delivered in certain delays
2.5 Do there exist compensation procedures in case of errors committed by the court or individual judges or in case of delays in the proceedings? If this is the case, could you briefly describe the kind of compensation procedures which may be used by the victims of such errors or delays.
2.6 Do there exist possibilities for the public or the parties to introduce complaints against the way the administrative courts work
Yes, internal complaints to the respective President.
2.7 Do there exist studies about the feed-back of “customers” (in a broad sense of meaning) of administrative justice, on the bases of inquiries made among the public, the parties or their lawyers, about the functioning of the court?
Could you indicate which, in your opinion, might be possible remedies? Installation of Administrative Courts of First Instance
Have you noted whether effective measures have been introduced in recent times to improve the system in your country?
No effective measures yet introduced.