Meeting Beaulieu-sur-Mer 10-11 March 2006- Austria

Austrian report on the occasion of the annual meeting of administrative judges Beaulieu-sur-mer, 10. – 11. March 2006

A. Legal framework

1./ The competent Austrian organs were empowered to conclude the accession treaty by a constitutional law which was then accepted by a plebiscite. The accession treaty itself was promulgated in the federal law journal in a similar way than other international treaties. The Austrian Constitution does not explicitly provide for the position of community law in the legal system. There is a general consensus accepting the precedence of community law even against constitutional law, an exemption may exist for the so called fundamental principles of the Austrian Constitution (democratic principle, republican principle, federal principle, rule of law, separation of powers, liberal principle, fundamental and human rights). This eventual exemption has no practical relevance because there are no conflicts between these principles and community law.
There is no corresponding consensus concerning a supremacy of international law against Austrian constitutional law. The mainstream of the juridical doctrine assumes a precedence of constitutional law against the general rules of international law as well as against international treaties (whose rank within the Austrian legal system depends on the decisions met by the parliament concerning their promulgation but is not held to be higher than the Constitution).

2./ There are no specific judicial bodies to watch over compliance with community law. All administrative units are basically bound to comply with it (decision of the Administrative Court from 21st of June 1999, 97/17/0501). In this respect, there is no technical difference between a breach of (directly applicable) community law and a breach of national law. That means that a violation of community law can be brought before the respective judicial body in charge, be it a civil court, be it administrative judiciary.
The Constitutional Court protects the individual rights of the citizens granted by the constitution and ensures that legislation is in conformity with the Constitution. Citizens may apply to the Constitutional Court if acts of a public authority directly violated any of their personal rights granted by the Constitution. For example this is the case when the administrative authority acts arbitrary by applying law in an "unthinkable" way "Denkunmöglichkeit". In this context the Constitutional Court also examines whether there is an obvious violation of community law. Because of its supremacy against the constitutional law he can not prove the consistency of community law with the Constitution. Consequently there are rather few quests of the Constitutional Court for preliminary rulings.
The Administrative Court reviews decisions and actions of administrative authorities, including those of the variety of tribunals and appeal bodies that decide as last instance of administrative law suits. In this context the Administrative Court has to examine the conformity of these decisions with community law. He deals at least with fourty cases a year related to community law.

3./ Generally the transposition of directives to national law is performed by the parliament through constitutional laws and - more often - through ordinary laws. The type is chosen according to the place to be taken in the hierarchy of laws. There is also a restricted possibility for transposition by the administration through general national regulations. This requires a national law that entitles the administration to transpose a certain community law directive which (together with the mentioned law) sufficiently determines the scope of the administration according to the rule of law (decision of the Constitutional Court from 13th December 2005, G 104/05).

B. Usual attitude of administrative judge towards community law

1./ The Austrian Administrative Court as a supreme national jurisdiction is obliged to ask for a preliminary ruling soon as a question of interpretation of community law arises that is neither obviously clear nor has been dealt with in an ECJ judgement so far. The application of community Law in the single case takes place in the light of the judgements of ECJ.
In the case of conflict between national law and not directly applicable community law the method of consistent interpretation according to Art. 10 EC-Treaty is used. In this case the judge can interpret the possibly inconsistent national law considering the wording and the purpose of the directive in order to achieve the result pursued by the latter. It is to be noted that the consistent interpretation is based on national interpretation methods with the result that between competing hypotheses the one which meets the intentions of the directive best is to be chosen.

2./ If there is no doubt on the direct applicability of a directive according to the principles and preconditions developed by the ECJ, the administrative judge is bound to consider it in his judgement. If there are doubts whether the directive is sufficiently clear and precise etc. a preliminary judgement is compulsory.
General principles of EC-law have to be observed in the scope of application of community law including its transposition into national law. Being aware of the supremacy of general principles even against community law regulations the Administrative Court stated in some judgements that certain community law regulations applied by the administration - other than the applicant affirmed - obviously did not infringe general principles of community law (decision of the Administrative Court from 7th November 2005, 2005/17/0086). But generally these principles do not play a major role in domestic judgements.

3./ The administrative judge is obliged to put forward a breach of community law that gets obvious in the course of the administrative procedure by his own motion, even if the application does not explicitly refer to it (so did, for example, the Administrative Court in his decision from 20th November 2002, 2001/17/0180). Nevertheless it is not sure whether this requirement is fulfilled in every single case.

4./ In case of conflict between constitutional law and directly applicable community law, the latter prevails, an eventual exception made for the fundamental principles of the Constitution.

5./ Having actually the same binding legal character as domestic law, community law is explicitly quoted in judgements, the same applies for the quotation of ECJ-judgements.

C. Instruments used by the administrative judge

1./ In case of conflict between national statute law or national regulations and directly applicable community law, the judge is empowered to set aside the national rulings and applies EC-law.
In case of conflict between such national rulings and not directly applicable community law, the judge is not empowered to set aside national statute law. The judge is obliged to apply the statutes as adopted by the parliament. There is no legal basis for the judge to declare statute law not applicable. If national law is inconsistent with not directly applicable EC-law, only the national parliament can modify statutes in order to meet the requirements of EC-law.

2./ Only individual administrative acts contrary to directly applicable EC-law can be quashed. Such general regulations are simply not applied by the court but can not be formally quashed.

3./ Conformity of individual administrative acts with community law can be ensured via appeals only.

4./ No, any responsibility for a breach of law or obligations for good damages are dealt with by civil courts.

All decisions of the Austrian Constitutional Court and of the Austrian Administrative Court are available (in German language) under www.ris.bka.gv.at.