The prescription of decrees in delivering an Administrative Court judgment for restraining an administrative act or revocation of a regulation in the Republic of Austria

Abstract

     The Republic of Austria has a dual court system, but it is not divided into Courts of Justice and Administrative Courts like Thailand, as the organization jurisdiotion in Austria is divided into general courts and courts of public law. Austrian Public Law Courts comprise the Constitutional Court and Administrative Courts. The Administrative Courts are divided into two levels : the Supreme Administrative Court and the Administrative Courts of First Instance including the Federal Fiscal Court. The Administrative Courts have the competence to try and adjudicate administrative cases concerning the legality of an administrative act, while the legality of a regulation falls within the jurisdiction of the Constitutional Court of the Republic of Austria.

     An Administrative Court of First Instance normally has the competence to try and adjudicate cases concerning the legality of an administrative act within the jurisdiction of the Administrative Courts including the power to issue a decree for restraining an administrative act and for ordering the administration to issue a new administrative act. These orders often take the form of guidelines or frameworks, that do not infringe on the administration’s discretion, so the administration can issue a new administrative act legally. The Supreme Administrative Court of the Republic of Austria has the competence to try and adjudicate cases concerning the legality of a judgment or an order of an Administrative Court of First Instance and also, as the law authorized the Supreme Administrative Court to try and judicate questions of facts, the legality of an administrative act when sufficient facts are available to deliver a judgment. The adjudication on the legality of an administrative act by the Supreme Administrative Court intends to benefit simplicity, effectivity and cost efficiency. In some cases, the Supreme Administrative Court may assign the Administrative Court of First Instance to conduct further fact-finding. Meanwhile, the Constitutional Court of the Republic of Austria has the competence to try and adjudicate cases concerning the legality of a regulation. Although the Constitutional Court judgment may revoke an unlawful regulation, it is not binding the administration to issue a new regulation. Constitutional Court judgment revoking a regulation only obligates the administration to declare the revocation of that regulation unhesitatingly.