Judicial protection in administrative penal proceedings

Complaint with the competent Administrative Court

A complaint against the administrative decision issued by the authority may be lodged with the competent administrative authority:

In matters, that are of direct administration of federal administrative authorities, the Federal Administrative Court is generally competent (except in the area of competence of the Federal Finance Court, in particular also within financial law), otherwise it is the respective Regional Administrative Court. The jurisdiction of the federal or Regional Administrative Court may also be set in the (respective simple-majority) law; then this shall apply.

The complaint shall be filed with the authority that issued the official first-instance decision. Which regional administrative court is competent depends on the location of the authority that issued the decision or, in the case of a default complaint (i.e. a complaint for breach of an administrative authority to take a timely decision), on the location of the authority that would have had to issue the decision.

The complaint shall be filed in writing.

The time limit for filing the complaint is four weeks from the date of delivery of the written notice of the decision, in the case of a mere oral pronouncement of the decision with it. In principle, a complaint by default can only be filed after the expiry of six months (or a deviating statutory deadline for a decision).

The first instance authority has the possibility to settle the complaint by issuing a preliminary appeal decision on the complaint. The authority has a time limit of two months to issue a preliminary appeal decision on the complaint. Within two weeks after service of the preliminary appeal decision on the complaint, a request may be filed with the authority that issued the decision, to submit the complaint to the administrative court for a decision (request of remittance).

As a rule, the Administrative Court usually conducts a public oral hearing. The appeal proceedings end with a decision on the merits, unless the complaint is to be dismissed or the proceedings are to be discontinued. On the basis of a complaint filed by the defendant or in his or her favour, no higher penalty may be imposed in the decision (as well as in the preliminary appeal decision) than in the contested decision.

Review of rulings at the Supreme Administrative Court (VwGH) and/or complaints at the Constitutional Court (VfGH)

Applications for review of the rulings and decisions rendered by these courts can be filed with the Administrative Court and complaints can be lodged with the Constitutional Court.

An application for review of a ruling or a decision rendered by the Administrative Court, may be filed with the Supreme Administrative Court (VwGH) within a period of six weeks on the grounds of unlawfulness.

This requires, in the first instance, that a legal question of fundamental importance is involved. In addition, one of the following preconditions must be met:

  • A fine of more than 750 Euro is imposed in the administrative regulation.
  • A prison sentence is imposed in the administrative regulation.
  • A fine of more than 400 Euro was imposed in the decision.

Within six weeks, a complaint may also be lodged with the Constitutional Court (VfGH), in particular for violation of a constitutionally guaranteed right or for application of an unconstitutional law or an unlawful regulation.

Advice

The review or complaint must be filed by a lawyer provided with power of attorney.

Costs

Petition for review or complaints are subjected to a filing charge of 240 Euro.

Further links

Not certified translation
Last update: 18 March 2022

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