The Administrative Court of Upper Austria

A brief overwiew

The Administrative Court of Upper Austria provides legal protection in disputes of public law between natural persons/legal entities and administrative authorities. Those affected by decisions of administrative authorities can petition the Court to review these decisions.

The Court is one of 11 equally ranking Administrative Courts of 1st instance that were established in 2014. Since then, bearers of the jurisdiction of the Courts of Justice have been the federation as well as the states: The federation established the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) and the Federal Fiscal Court (Bundesfinanzgericht, BFG), the nine states of the Republic of Austria have established the other administrative courts (Landesverwaltungsgerichte, LVwG). The Austrian administrative judicial system is separate from ordinary jurisdiction (criminal and civil law). Generally speaking the Administrative Court of Upper Austria has jurisdiction in matters of state administration and indirect federal administration within Upper Austria (including misdemeanours and administrative penal proceedings), which range from proceedings concerning building permits or operational facility licenses to traffic law, driving licences, granting social assistance and citizenship.

The Court’s decisions are – if the decision of the Administrative Court depends on solving a legal question of fundamental importance – subject to judicial review by the Supreme Administrative Court (Verwaltungsgerichtshof, VwGH) and – if constitutional issues are concerned – to judicial review by the Constitutional Court (Verfassungsgerichtshof, VfGH).

The Court has its main seat in Linz. It is headed by the President. In the case of the President’s unavailability, he/she is represented by the Vice President.

The President’s Office (Präsidialbüro) and the Registry (Geschäftsstelle) support the management of the Court.

Some facts and figures (1. Jänner 2023):

Number of judges: 38 (including President and Vice President)

Number of non-judicial staff (judges, clerks, president’s office, court assistants, registry, documentation office, controlling office): approximately 50

Number of new cases pending in 2021: about ~ 4.580

Number of cases closed in 2021: about ~ 4.750

Average duration of proceedings in 2022: approximately 4 to 5 months

More information on the Court’s work and organisation is available in the State Administrative Court Act ( Landesverwaltungsgerichtsgesetz) and the Court’s Activity Report (both available only in German).

The members of the Court are professional judges. Judges are not bound by any instructions and they are subject only to statutory instruments. They are independent in exercising their judicial office. Furthermore, they are not subject to dismissal or transfers.

Cases are allocated among the judges according to general rules decided in advance for a period of one year. A case assigned to a judge in accordance with the allocation of business may only be transferred to another judge by decree of a chamber (Senat) of five judges. However, this is only possible if the judge in question is prevented from exercising his or her responsibilities and the reallocation is necessary to uphold the functioning course of business or if the judge is prevented from fulfilling the duties within reasonable time because of his or her workload.

Judges are appointed by the state government of Upper Austria based on a list of three candidates drawn up by the Court. Each judge must have completed a law degree, at least five years of practical legal experience subsequent to their law studies and they must have passed an exam which is officially recognized for exercising legal activities (e.g. bar exam, service exam).

Strict incompatibility rules are in place.

The Austrian Academy of Administrative Jurisprudence (Österreichische Akademie der Verwaltungsgerichtsbarkeit, ÖAVG) provides administrative judges with the opportunity to update their knowledge and skills.

Law clerks (Juristische Mitarbeiter), which hold law degrees, as well as court assistants (GerichtsassistentInnen), support the judges.

There is only one administrative instance. In the matters of the municipalities’ own sphere of competence (e.g. building law), there is a two-stage process of appeals.

The Court only acts upon request (Beschwerde). The Federal Constitution provides for various ways in which proceedings may be brought to the Court: The Administrative Court pronounces judgement on complaints

  • against rulings by administrative authorities for unlawfulness
  • against the exercise of direct administrative power and compulsion for unlawfulness
  • on the ground of breach of the duty to reach a timely decision by an administrative authority

In proceedings on complaints against rulings by administrative authorities for unlawfulness, the authority is free to set aside, modify the contested administrative decision, or dismiss the complaint for formal reasons or on the merits within two months (preliminary decision on a complaint).

There is a submission period (e.g. in general four weeks after an administrative decision has been served) which is included in the complaint instructions of the administrative authority’s decision. Except for complaints concerning exercise of direct administrative power, a complaint is to be filed with the competent administrative authority. The authority passes the complaint, together with the record of the proceedings, on to the Court. The Court’s Registry opens a case file and assigns a reference number to the complaint. The complaint will then be allotted to the competent judge in accordance with the annual allocation of business.

In proceedings before the Court representation by a lawyer is not mandatory. Unless provided otherwise the filing fee to lodge a complaint amounts to Euro 30 (no fee is charged e.g. in proceedings concerning misdemeanours, a higher fee is charged e.g. in public procurement). Parties unable to pay the costs of proceedings may apply for legal aid.

Generally, the ruling is given by a single judge. Certain cases are handled by chambers (Senat) of at least three judges. If foreseen by law professional judges pass the decision jointly with lay judges.

A public hearing is an essential part of the Court’s proceedings.

More details on proceedings before the Court is available in the Proceedings of Administrative Courts Act.

Unless the Court has to reject the complaint – mainly because it is formally defective, e.g. the complaint has been filed too late – the Court has to establish the facts and decide on the merits (either admit the complaint and amend the authority’s decision, dismiss the complaint as unfounded or even annul the authority’s decision). Except in proceedings concerning misdemeanours and administrative penal law, in cases where there have been fundamental defects in the procedure before the administrative authority the Court may also annul the administrative authority’s decision and remand the case to the administrative authority, which then has to renew the proceedings in accordance with the Court’s legal opinion.

The Office for Case-law analysis and publication (Evidenzstelle) collects, registers and processes the Court’s decisions and publishes them on the Court’s own website (Decisions of the Administrative Court of Upper Austria). Certain decisions are also periodically published in the legal information system of the Republic of Austria (Rechtsinformationssystem RIS).

Decisions of the Court may be contested by final complaints (Beschwerde) to the Constitutional Court (Verfassungsgerichtshof, VfGH) and/or by ordinary or extraordinary final complaint (Revision) to the Supreme Administrative Court (Verwaltungsgerichtshof, VwGH).

Final complaints may be filed within six weeks, must be submitted by a lawyer (or alternatively in fiscal matters by a tax advisor or certified public accountant) and a fee of Euro 240 has to be paid. Parties unable to pay the costs of proceedings may apply for legal aid.

In a final complaint to the Constitutional Court the appellant may claim either the infringement of rights guaranteed in the constitution, e.g. fundamental rights, by the Court’s decision or the infringement of rights due to the application of an unlawful general norm.

A final complaint to the Supreme Administrative Court is admissible, if the decision of the Administrative Court depends on solving a legal question of fundamental importance (in particular because the decision is contrary to the Supreme Administrative Court’s case law, such case law does not exist or the legal question to be solved was not answered in a uniform manner in the Supreme Court’s case law). If the Administrative Court does not admit an ordinary final complaint, an extraordinary final complaint may be filed.

If in an administrative penal matter or a fiscal penal matter a fine of up to Euro 750 and no prison sentence was allowed to be imposed, and a fine of up to Euro 400 was imposed in the decision, a final complaint for infringement of rights to the Supreme Administrative Court is not admissible.

If the Administrative Court has failed to give a timely decision, the Supreme Administrative Court may upon request of a party set a time limit within the Administrative Court has to give its decision.