Judenplatz 11, A-1010 Vienna/Austria
concerning "Direct access of non profit making organizations to the administrative judge"
Beaulieu sur Mer, March 11th and 12th 2005
Till now the Austrian legislators (the federal Parliament as well as the parliaments of the nine "Länder") did not take any measures to implement a direct access of non profit making organisation to the administrative judge. As a consequence associations, Unions, political parties, groups of federations etc. have only the right to bring their own cases, that means where they allege that an administrative decision infringes their rights, before the competent administrative authorities and finally also before the Administrative Court.
Exceptions can be found in single regulations for example concerning the "Umweltanwalt" (environmental attorney) as an independent administrative institution in the federal countries ("Länder") who has full rights as a party in defined administrative (environmental) matters and may even bring these cases before the Administrative and the Constitutional court as far as it is foreseen by the law of the single federal countries (e.g. pursuant to art. 3 par. 1 of the law on the environmental attorney in Burgenland [Gesetz über die Burgenländische Landesumweltanwaltschaft], LGBl. No. 78/2002).
Another exception on the level of a federal law is the position of an initiative of (at least 200) citizens ("Bürgerinitiative") as a party with full rights in an administrative case pursuant to art. 19 par. 4 of the federal law on the assessment of the effects of certain public and private projects on the environment ("Umweltverträglichkeitsprüfungsgesetz"), BGBl. No. 697/1993 (as revised in the meantime).
There is no necessity that the federal constitution provides such a possibility of direct access to the administrative judge as it is already sufficient if the ordinary law (federal law or law of the federal countries) defines the rights of such non profit organizations including the right of appeal to the Administrative and the Constitutional court. If such organisation have to meet special requirements (e.g. in the fields of environment), individual administrative acts (authorizations or approvals) should be foreseen in the ordinary laws.
If the law also provides the possibility to bring the case before the Administrative and the Constitutional court, these courts are only allowed to quash the individual administrative act (no right of modification of the individual act by these courts). In general, requests of compensation of material losses have to be brought before the civil courts (e.g. pursuant to the State liability Act ["Amtshaftungsgesetz"]) and are not treated by the "courts of public law" ("Gerichtshöfe des öffentlichen Rechts").
At the moment only the own interests of such non profit organisations can be put forward. In the quoted example of the initiative of citizens (Bürgerinitiative") pursuant to the "Umweltverträglichkeitsgesetz" this law provides that the (public interest of) observing the rules concerning the environmental protection are "individual rights" ("subjektives Recht") of such initiatives. Similar rights should be provided by the Austrian legislators to fulfil the obligations laid down in art. 9 par. 2 and 3 of the Aarhus Convention.
As already mentioned the criterias have to be laid down by law.
As the necessary implementation/revision of laws did not yet take place, it is not sure which criterias will be decisive. Probably it will be an accumulation of the some of the mentioned criterias (length of existence, territorial area, lawfulness, statutes etc.).
As the convention demands such access only in laws "relating to the environment", amendments will probably only take place in these fields (in the concerning federal laws and in the laws of the federal countries).
As NGOs actually have no direct access to administrative justice except in the case where they are directly infringed by an administrative act no comparative survey and statistics can be given.