Austrian report

The impact of Article 6 of the European Convention of Human Rights (ECHR) about the “right to a fair trial” on litigation proceedings applicable to the administrative courts.

PART 1

An independent and impartial tribunal established by law : the concepts of jurisdiction and administrative court :

Answer of Austrian Administrative Court : The Independent Administrative Panels (IAP) in the Länder are the most important independent and impartial tribunals dealing with administrative matters, one in each of Austria’s nine Länder (regions). Members have to be lawyers and are appointed by the governments of the Länder for periods of at least six years or indefinite time. The IAP have full jurisdiction over matters of fact and law, they are tribunals within the meaning of Article 6 ECHR.

The competence oft the IAP include :

all procedures concerning adminstrative offences (with the exemption of violations oft the federal tax laws), this function was crucial for the creation oft the IAP in 1988,

complaints against acts of immediate administrative orders or compulsion

other matters determined in federal or regional laws, these are specifically such matters, wich fall under the concept of civil matters under Article 6 par. 1ECHR

The IAP does not have a universal competence to deal with all appeals in administrative matters however.

For some matters special commissions or panels have been set up to deal with those specific matters such as the Telekom-Control-Commission, the Data Protection Commission, Land Transfer Authorities. disciplinary panels and commisions for public officials or free professions. Because they are relatively independent from the executive, they have in most cases been accepted as being tribunals within the meaning of Article 6 par 1 ECHR. There are still problems in this respect however (e.g. the Data Protection Commission has been held not to be completely independent only recently by the European Court in Luxemburg).

The Federal Procurement Office, organized as an independent tribunal is hearing cases on public procurement.

Article 6 ECHR is not applicable in asylum and tax law. There is the Asylum Court, responsible for dealing with all appeals in asylum matters. In federal tax law there is the Independent Finance Panel, dealing with federal tax cases.

In some administrative matters there is still no court having full competence to give a decision on the matter. Instead, there is a system of administrative appeal stages, in some instances up to the federal minister. All administrative instances have to be exhausted, before a court comes into play. In some administrative matters the Supreme Administrative Court is the only tribunal to deal with the matter.

In most administrative matters a complaint can be made to the Supreme Administrative Court, wich decides on questions of substantive and procedural law but not of fact, it has cassatory function. For some cases, a complaint cannot be made to the Supreme Administrative Court but only to the Constitutional Court (in asylum cases and against decisions of some administrative panels).

The constitutional framework for a basic and comprehensive reform of the Austrian system of administrative adjudication has been enacted by the Austrian Parliament with the Verwaltungsgerichtsbarkeits-Novelle 2012. This constitutional law lays the basis for the most important reform in administrative law in the last decades. It will come into effect on january 1st 2014. Presently the laws setting up a new system of administrative courts and of procedural law are being prepared and discussed.

A system of Administrative Courts in the Länder (one in each) and of one Federal Administrative Court and one Federal Finance Court will be set up. The existing IAP will be transformed to the Administrative Courts in the Länder, the Asylum Court and the Federal Procurement Office will jointly be transformed to the Federal Administrative Court and the Independent Finance Panel will be transformed to the Federal Finance Court.

The reform provides for a comprehensive system of administrative adjudication. Basically, there will be no more administrative appeals (except against decisions within local municipalities). A complaint to an administrative court will be possible against every administrative decision, the administrative courts having – in principle - full jurisdiction (except where there is administrative discretion). The administrative authority will only have the possibility to repeal its decision upon a complaint to the court.

Special commissions and panels will be abolished, their competences will be transferred to the administrative courts.

There will be an appeal (Revision) to the Supreme Administrative Court against all judgments and decisions of the administrative courts (with few exceptions, which are presently discussed). The Supreme Administrative Court will deal with such appeals only, which have been declared admissible by the administrative court, a decision which can be challenged at the Supreme Administrative Court (system of leave to appeal).

The competence of the Constitutional Court, which is responsible to deal with complaints asserting the violation of constitutional/human rigths is presently under discussion also. It is expected that it will keep this competence. A special remedy, by which parties could challenge the constitutionality of the laws applied by the highest courts, may be introduced. Under such a regime cases decided by the highest courts (the High Administrative Court and the Supreme Court) would be reopened if a law is declared invalid by the Constitutional Court.

Asylum Court : The Asylum Court is a Court in the sense of the Austrian Constitution und fulfills the criteria of an independent and impartial tribunal established by law

Independent Administrative Tribunals : The Independent Administrative Tribunals were established to comply with the stipulations by Art. 6 of ECHR. Since then the establishment of Administrative Courts was announced and will enter into force in 2014

The right of access to a court and to effective judicial protection, the right to an effective judicial remedy :

Answer of Austrian Administrative Court : Article 6 and 13 ECHR is part of Austrian constitutional law and directly applicable. The Constitutional Court and the Administrative Court have both applied these provisions in declaring some laws invalid and interpreting laws and regulations, e.g. in cases concerning the suspensive effect of remedies. At present there is no express basis for issuing interim measures for the IPA, the panels or commissions or even the Supreme Administrative Court. Legal aid exists for persons wishing to file a complaint to the Supreme Administrative Court and to the IAP in cases concerning adminstrative offences. There is no legal aid for filing appeals against administrative decisions concerning questions of civil law however.

The system of administrative adjudication in Austria does not provide for a remedy against the State to issue general rules or regulations (such as are required in the Case of Janecek decided by the European Court or under Article 9 of the Aarhus Convention). It would be interesting to learn whether there is such a remedy in other European Countries.

Asylum Court : The right of asylum seekers to file a complaint with the Asylum Court is guaranteed both in the Austrian Constitution and the Asylum Act. For filing an appeal asylum seekers are granted legal aid automatically ; there are only few exceptions (e.g. in cases of subsequent application and “Dublin-cases”.

Independent Administrative Tribunals : The right of access to a court and to effective judicial protection ; the right to an effective judicial remedy was guaranteed with the establishment of the Independent Tribunals as first instance I1 :

especially concerning administrative infractions with full jurisdiction in factual and legal questions.

The right to an adversarial proceedings and the principle of “equality of arms” between the parties :

Answer of Austrian Administrative Court : The concept of an adversarial proceeding is fully implemented in the proceedings before the Supreme Administrative Court. In principle it is also implemented in proceedings before the IAP. Under present law, administrative authorities in many fields of administrative law however do not have the right to appeal against decisions of the IAP to the Supreme Administrative Court, the IAP not having full features of a court but still being designed according to the concept of an – independent and impartial – administrative authority. This is still more true in the cases of the existing commissions and panels in all different fields of administrative law. That will change with the reform in 2014.

Asylum Court : Both parties to the procedure (the asylum seeker as well as the Federal Asylum Agency) have the right to take part in the oral hearing. If there is no oral hearing they both have the right to make comments in the written procedure. If the asylum seeker was granted legal aid for filing the complaint this legal consultant assists the asylum seeker also in the court procedure.

Independent Administrative Tribunals : Equality of arms is only guaranteed in proceedings where two parties are involved , eg cases bout working permits for foreigners. Apart from that the so called “Inquisitonsprinzip” is ruling the procedure, meaning that the judge is the master of proceedings and not bound by the motions of the parties.

The right to a reasoned decision :

Answer of Austrian Administrative Court : The right to a reasoned decision by the administrative authority is laid down in paragraphs 58 sequ. of the General Administrative Procedure Act (exceptions in cases of a decision according to a fixed tarif or urgent matters). All decisions by administrative courts and tribunals have to be reasoned according to the same provisions with no exceptions. The Supreme Administrative Court is very critical concerning this principle. Decisions which are not reasoned properly and which do not answer all relevant submissions by the parties will be squashed for reasons of error of procedure by the Supreme Administrative Court (par. 41 par. 2 subpar 3c High Administrative Court Act). The Supreme Administrative Court hast to give reasons in all his judgments and decisions also, it may refer to the reasoning in similiar cases however.

Asylum Court : According to Art. 60 of the General Administrative Procedure Act, which is also applicable for the Asylum Court, in the decision the results of the investigations undertook the relevant considerations with regard to the assessment of evidence as well as the assessment of the legal issue have to be stated in a clear way.

Independent Administrative Tribunals : It is obligatory that decisions are reasoned. The whole decision – including the reasoning – is subject to the control of the Administrative Court

A judicial decision made within a reasonable time :

Answer of Austrian Administrative Court : IAP’s and administrative panels and commissions have to observe a time limit of normally six months to issue their decision. If no decision is taken, a complaint can be made by the party concerned to the Supreme Adminstrative Court which has the effect of transferring the competence to decide the case to the Supreme Administrative Court. Before the Supreme Administrative Court decides the case itself, it has the possibility the give binding indications to the lower IAP or panel or commission, in which way they have to take the decision. If the IAP or panel or commission does not comply, the competence stays with the Supreme Administrative Court. As far as the Supreme Administrative Court is concerned, there is no formal remedy against delays. The parties concerned may however express their whish for an more expedient way of treating their complaints. The criteria assessed by the Court in deciding upon speeding up specific cases in this respect are the circumstances of the individual case, in particular the complexity of the case, the parties’ conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the litigation and the importance of the case for the administration of justice.

Asylum Court : If the single judge or the panel do not decide within six months, the asylum seeker as well as the Federal Asylum Agency can make an application to the president of the Asylum Court (time-limit application). The president then has to set a reasonable time-limit to render a decision.

Independent Administrative Tribunals : Judicial decision have to be made within a reasonable time. Concerning administrative infractions the time limit is 15 months, concerning all other decisions six months.

Independent Financial Board :

It is a common view, that the taxation proceedings are not "civil rights" within the meaning of Art. 6 ECHR, as far as it concerns taxes, subsidies or custom duties (in the field of the penalty law the guarantees of Art. 6 are directly binding)

Nevertheless the appellate procedure before the Independence Finance Board is in accordance with the law-protection-standards of Art. 6 ECHR.

All the requirements listed in Point 1 of the questionnaire are implemented in the national procedural law and the Instituting law of the IFB.

PART 2

6. The principle of legality and the respect for fundamental rights :

(given by Austrian Administrative Court):The fundamental rights are enshrined in the Austrian Constitution. In Austria this is also true for the fundamental rights of the European Human Rights Declaration giving them the same status as national constitutional rights. Therefore the Austrian constitutional review process applies fully to all questions of fundamental rights on an equal basis.

If a national provision is not in line with constitutional rights, a national judge can file a motion with the Constitutional Court to declare a national provision as incompatible with the Constitution. Additionally, in Austria the Constitutional Court can be addressed directly by private parties in public law matters. There are two ways to reach the Constitutional Court. First, one can appeal eventually to the Constitutional Court after exhaustion of all regular remedies if an authoritative measure directly hurts the rights of a person. In such a case the Court looks into the individual administrative case by itself. The second ground for constitutional review is if somebody claims that the general provision was applied correctly by the administration in their single case, but the applied provision itself was not in line with the constitution. Then the Constitutional Court can open a review not on the administrative behavior, but on the general law. If the Court finds the arguments of the plaintiff valid, it can declare the provision pro futuro for void, which will be published in the federal gazetta normally publishing passed laws. The Constitutional Court is thereby acting as a negative legislator. However, there is also the possibility for the Court to grant parliament a "repair period" of up to 18 months. In this period the provision - although already found to be unconstitutional - has to be applied further on. The grant of such repair periods depends, of course, on the extent of constitutional infringement. The individual case having raised the issue however always benefits from a successful constitutional challenge. In that case the national law has already to be applied without consideration of the unconstitutional provision.

This system shall keep the balance between the principle of legality and the principle of uniformity in the application of law on the on hand side and the respect for constitutional rights on the other hand side.

The new European Charta on Human Rights will however influence this review system as it might then be not only the Constitutional Court enforcing fundamental rights but also other judges when applying the disputed provision. Yet case law has still to be developed in this field. However, the Constitutional Court has already held that it will examine cases under the European Charta as well regarding them as equal rights to the national constitutional rights.

7. The principles of primacy and direct effect of European Union law :

(given by Austrian Administrative Court):The Principle of Legality and the Principle of Loyalty to European Law can interfere with one another. In case of European law provisions enjoying direct and primary effect it is fully established that national provisions have to be set aside if they are in conflict with European requirements. In Austrian Court practice there have already been a lot of cases dealing with such constellations. National jurisprudence plays hereby an important role in the surveillance of the respect of the national legislator for European Law. The principle of (national) legality steps behind.

This might only cause a problem in such constellations where there is no clear answer to a conflict situation between national law and European law of direct effect. In such constellations some lower courts might take one position and the others another one jeopardizing of course the principle of uniformity of application of law and creating possibly huge legal uncertainties on short terms. It’s then up to the Supreme Court to (re)establish the uniform application of law. The Austrian constitutional system avoids such problems as national provisions have to be applied as long as the Constitutional Court has not found them to be incompatible. Thus it is only the Constitutional Court and not every judge on its own ruling on the legality of a national provision in the constitutional perspective. However, in Austria both systems coexist today side by side - the centralized examination of constitutional issues by a specialized Supreme Court and the implied examination of directly applicable European law by every applying judge (which is in the last instance the Austrian Administrative Supreme Court).

There is, however, another field of possible conflict between national law and European law that does not occur that often and where scholars are still arguing about the correct balancing of the interests of legality and European Law. This is the question of limits of harmonizing interpretation, if a national provision is not in line with European Law that does not have direct effect. Here the question remains, in how far national judges should harmonize the understanding of the national provision with European Law although the latter is not directly applicable.

This can be demonstrated on a fictious tax case : The EU Council directive 2006/112/EC of 28 November 2006 on the common system of value added tax allows Member States in Art 98 to apply either one or two reduced rates to supplies of certain goods or services listed in Annex III. This Annex reads in paragraph 7 as follows : "admission to shows, theatres, circuses, fairs, amusement parks, concerts, museums, zoos, cinemas, exhibitions and similar cultural events and facilities". In the Case Erotic Center C-3/09 the ECJ held that the concept of "admissions to a cinema" referred to in the Council Directive must be interpreted as meaning that it does not cover the payment made by a customer so as to be able to watch on his own one or more films, or extracts from films, in private cubicles such as those in issue in the main proceedings.

The Austrian VAT-Act now did not transpose the directive using the wording "cinema" of the directive, but chose a broader term granting a reduced VAT rate for the "presentation of films" in Art 10 para 2 subpara 10 VAT-Act. From the mere wording of the national provision erotic cinema displays such as the Belgian ones would be included in the

VAT-reduction.

A national judge is now confronted with the following questions :

Should national judges now grant the broadly phrased VAT reduction in order not to frustrate people’s trust in national law for legality reasons although they are thereby breaching - not directly applicable - EC Law ?

Or should they rather reduce the wording of "presentation of films" down to "cinema displays" in order to avoid EU conflicts ?

In how far does the wording of a national provision set out limits to possible interpretation approaches so that the breach of not directly applicable EU Law has to be targeted separately by the EU Commission in an Infringement Procedure and can not be mitigated by national judges ?

The approaches of national jurisdictions seem to be different in this respect. Austria has too little case law to detect a clear border line. In principle the wording is regarded as a limit of interpretation ; but teleologic reductions are also used in mere national interpretation contexts, so that there is rather room for individual case arguing case by case.

9. The principle of subsidiarity :

(given by Austrian Administrative Court) : The principle of subsidiarity applies in several constellations. First it applies in procedural law stipulating that it is up to national law to structure the administrative procedures as long as the national procedural law does not make claims based on European law ineffective or worse off than claims based on national law.

In tax law the Austrian Administrative Supreme Court referred, for instance, a case concerning the repayment of Austrian duty on alcoholic beverages to the ECJ. In C-147/01, Weber’s Wine World the Court held that on the one hand the principle of effectiveness precludes national legislation or a national administrative practice which makes the exercise of the rights conferred by the Community legal order impossible in practice or excessively difficult by establishing a presumption of unjust enrichment on the sole ground that the duty was passed on to third parties. On the other hand the principle of equivalence precludes national rules which lay down less favourable procedural rules for claims for repayment of a charge which has been levied though not due from the aspect of Community law than those applicable to similar actions based on certain provisions of domestic law.

On the basis of this ECJ ruling there is also a major role of the national judge. It is - so the ECJ - "for the national court to ascertain, on the basis of a comprehensive assessment of national law", whether it is actually the case that claimants who bring proceedings based on domestic law may rely on more favourable conditions than those applicable to actions relating to taxes held to be contrary to Community law. If a national judge finds such an unjustified differentiation, national subsidiarity in procedural issues ends and the more favourable procedural conditions have to be applied.

Secondly, the principle is also known for the relationship between European Law and national law. Yet, at the moment this is rather a topic between national parliaments and the European Parliament and thereby a topic for the ECJ than for national courts.

10. The Principle of Transparency :

(given by Asylum Court)The principle of transparency has been developed by the CJEU especially in the area of public procurement. The principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified (Case C-19/00, SIAC Construction, paragraph 41). This means for example that the award criteria must be formulated in the contract documents or the contract notice in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way. This obligation of transparency also means that the adjudicating authority must interpret the award criteria in the same way throughout the entire procedure (Case C-19/00, SIAC Construction, paragraph 42).

In Austria the relevant publications concerning public procurement are done in the official journal of the “Wiener Zeitung” and in the official journal of the EU (concerning the so called “Oberschwellenbereich”). The very first decision amenable to judicial review is a decision where a contracting authority decides not to initiate an award procedure on the ground that the contract in question does not, in its opinion, fall within the scope of the relevant Community rules (Case C-26/03, Stadt Halle, paragraph 33). Other decisions amenable to judicial review are the contracting authority’s decision prior to the conclusion of the contract as to the bidder in a tender procedure with which it will conclude the contract (Case C-81/98, Alcatel Austria, paragraph 43), the withdrawal of the invitation to tender (Case C-92/00, Hospital Ingenieure II, paragraph 54, and Case C-15/04, Koppensteiner, paragraph 29), and the decision by which the contracting authority eliminates the bid of a tenderer even before making that selection (Case C-249/01, Hackermüller, paragraph 24). An expression of the will of the contracting authority in connection with a contract, which comes in whatever way to the knowledge of the persons interested, is amenable to review where that expression has passed the stage referred to in the previous paragraph and is capable of producing legal effects (Case C-26/03, Stadt Halle, paragraph 39).

11. The Principle of Public Participation :

(given by Asylum Court)The principle of public participation holds that those who are affected by a decision have a right to be involved in the decision-making process. Public participation implies that the pub-lic’s contribution will influence the decision.

The strongest impact of this approach can be found in the context of environmental gover-nance. It is recognized that environmental problems cannot be solved by government alone. Participation in environmental decision-making effectively links the public to environmental governance.

According to the UNECE Convention on Access to Information, Public Participation in Deci-sion-making and Access to Justice in Environmental Matters (usually known as “Aarhus Con-vention”) which entered into force on 30 October 2001, the public must be informed about all the relevant projects and it has to have the chance to participate during the decision-making and legislative process. The Aarhus Convention has also been ratified by the European Union.

As a consequence the Environmental Impact Assessment (EIA) Directive (85/337/EEC) - in force since 1985 - was amended in 2003 in such a way that the public – defined as “one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organizations or groups” – concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.

In Austria, this was transposed mainly by Art. 9 EIA Act 2000 on public inspection into the application, the relevant documents and the environmental impact statement (which have to be provided by the project applicant) as well as its Art. 19 according to which – apart from registered environmental organizations – also citizens’ groups (ad hoc groups of 200 persons or more having signed a comment) have locus standi in the development consent procedure for the project including the right to complain to the Administrative Court and the Constitu-tional Court.

The IPPC Directive (Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, which has been inte-grated in the Industrial Emissions Directive in 2010) containing similar provisions with regard to smaller projects has been transposed by provisions in various acts regulating industrial plans (e.g. the Industrial Code [Gewerbeordnung]).

12. The principle of egality and non-discrimination

and 13. The principle of proportionality :

(given by Independent Administrative Tribunal) Those principles are already guaranteed in the Federal Constitutional Law, especially and explicitly the principle of egality and non discrimination. It mainly plays a role in cases of law relating to aliens, here European law brought the better protection of nationals with the prohibition of averse discrimination.

Administrative discretion has to be based on law.

14. The precautionary principle :

(given by Independent Administrative Tribunal) The precautionary principle is not often invoked before the Independent Administrative Tribunals since they do not deal with cases concerning permits like in environmental cases or permits for buildings or the distribution of pharmaceutical products

15. Protection of legitimate expectations and the principles of legal certainty and good faith :
(given by Independent Administrative Tribunal) This principle mainly concerns the Constitutional Court, especially in fiscal law, retirement pay, aid and public measures. All these are not in competence of Independent Administrative Tribunals

16. The principle of responsibility :
(given by Independent Finance Board) First I may refer to the Austrian report within the scope of the meeting "Primacy of EU law for Administrative Judges" in Beaulieu-sur-Mer 2006.
As already mentioned in this report there is a general consensus accepting the precedence of community law even against constitutional law.
As far as it concerns taxation law, Austria can be regarded as a role model at the conversion of Community Law.
For example : though there is no specific mandate to harmonize the direct taxation, the Austrian legislator has implemented community law standards to a large extent (deduction of losses of non-domestic permanent establishments, equal treatment of foreign and domestic capital gains as well as portfolio capital gains etc.).
Due to the case-law of the ECJ, which is the driving force for the harmonization, new questions have been raised, especially in the literature and academia.
The IFB took up this challenge not only in several requests for preliminary ruling to the ECJ but also by direct application of Community Law as well.
For instance the IFB decided that the principles of free movement and freedom of capital have to be extended to the participation in foreign companies.

In the field of VAT harmonization is achieved by the Sixth VAT Directive.
The interpretation of national VAT law has to comply with the directive.
In case that the national legislator hasn’t converted Community Law accordingly the directive has direct effect.
In spite of the Sixth VAT Directive the jurisprudence of the ECJ is very important for the further development of harmonization in the field of VAT.
The IFB filed several requests for preliminary rulings to the ECJ for instance regarding the treatment of companies which go public to issue new shares. This question was discussed in several European Countries and resulted in a statement of the European Commission, which was adopted by the Advocate General.
In several other cases the IFB decided by immediate implementation of Community Law. For instance : in an intensively discussed decision the IFB regarded the taxation of self-supply in connection with the international leasing of cars as not in compliance with Community Law.

17. The impact of other principles of European law on administrative law :
(given by Independent Finance Board) Since the judgement in avoir fiscal the principle of non-discrimination has been extended to the tax law.
According to the case-law of the ECJ a three step discrimination test has to be conducted to examine, if a national provision is in accordance with Community law.
Firstly, rules regarding equality of treatment forbid not only overt discrimination by reason of nationality or, in case of a company, its seat, but all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result ( Case C-1/93 Halliburton).
Secondly, a general objective control even of non-discriminatory limitations in national law has to be conducted. ECJ derives this from the development of the prohibition of discrimination into a prohibition against limitations being imposed, deducing from this the formulation that anything which makes the exercise of a fundamental freedom less attractive or is capable of doing so could constitute an impermissible limitation of fundamental freedoms (Case C-267/91, Bosman, C-268/91, Keck).
Thirdly a justification and proportionality test has to be conducted in case of discriminatory and non-discriminatory limitations of the fundamental freedoms by national law. The admissibility of justification reasons is very restrictive.
Potential tax reductions, economical reasons or low taxation abroad are not regarded as justification (case C-324/00Lankhorst-Hohorst, C-136/00 Danner).
In the case of tax evasion the ECJ has clarified essentially, the provisions aimed at combating tax evasion and the transfer of revenue to tax havens are in principle incompatible with the principle of free movement within the EU ; such provisions could, however, be justified only where they are limited to combating commensurately the establishment of artificial and abusive structures.
The coherence of the national law can be reason of justification for different treatment. However the case-law of the EJC requires a direct link between tax advantage and tax disadvantage (Case C-107/94, Asscher, C-168/01, and Bosal).
In Marks&Spencer (C-446/03) the ECJ recognized in an over all consideration a combination of justification reasons though the single reason would not meet the requirements.