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Proceedings
Proceedings before the Federal Administrative Court are instituted by filing a complaint against a notice of decision and/or other official act or failure to act of an administrative authority.
The Federal Administrative Court decides on complaints
- against a notice of decision issued by an administrative authority on the grounds of unlawfulness, this is called complaint against a notice of decision;
- against an act of a direct order and coercive measure executed by an administrative authority on the grounds of unlawfulness, this is called complaint against a measure;
- for breach of an administrative authority’s duty to make a timely decision, this is called complaint for failure to act and
- against an instruction given, this is called complaint against an instruction (applicable in Education Law).
Submission
The complaint must be submitted to the authority that has issued the contested decision (decision complaint) or is in default of its decision (default complaint).
However, a measure complaint is to be submitted directly to the Federal Administrative Court.
Written submissions (pleadings) may only be submitted physically (e.g. by post, in person or by messenger) during office hours (Monday to Friday: 8am – 3pm, except Good Friday, 24 December and 31 December and public holidays) or electronically at the Federal Administrative Court headquarters in Vienna.
Written submissions (pleadings) concerning cases pending at a branch office may be submitted physically or electronically to the branch office concerned (in Linz, Graz or Innsbruck) during office hours.
Electronic submission
In the Federal Administrative Court, pleadings and supplements to pleadings (especially complaints or supplemental filings to a pending case) may be filed electronically using the following methods:
- using online forms
- via electronic legal transactions (Web-ERV)
- via a standardised interface function
- using electronic delivery services
- via electronic file
- by fax
Lawyers, tax advisers and auditors are obliged to file by means of electronic legal transactions (ERV).
In this context, it is to be noted that email is not a valid form of electronic submission of pleadings.
Complaint time limit
In general, the complaint period for complaints against a notice of decision, for failure to act and against an instruction amounts to four weeks, for complaints against a measure it is six weeks. Exceptions to this rule are possible on the basis of federal or local laws! The detailed time periods result from the respective appeal instructions.
Requirement for representation by a lawyer
In proceedings before the Federal Administrative Court, representation by a lawyer is not obligatory, i.e. the parties do not need to be represented by an attorney at law.
However, parties are free to grant a power of attorney to a lawyer for the complaint proceedings.
Legal aid
It is possible to apply for legal aid for proceedings at the Federal Administrative Court. Legal aid is the temporary exemption from any costs incurred in the proceedings (e.g. court fees, fees for witnesses, experts and interpreters, costs for representation by a lawyer).
Who has the option of applying for legal aid?
The Federal Administrative Court can grant legal aid for:
- persons who are unable to meet the costs of conducting the proceedings without prejudice to their necessary maintenance,
- legal persons who are unable to raise the funds required for the conduct of the proceedings by the party (the legal person itself) or the economic participants in the conduct of the proceedings, and
- cases where the intended prosecution or defence does not appear to be obviously frivolous or futile.
The judge in charge is responsible for assessing whether these circumstances exist and for deciding whether and to what extent the application for legal aid shall be granted.
When should the application for legal aid be submitted?
The application for legal aid may be submitted as of the date of issuance of the decision or as of the date on which the person concerned became aware of the exercise of direct administrative command and coercive power. If the granting of legal aid for drafting and submitting a default complaint is applied for, this application can only be submitted after the expiry of the decision period. Once a party has submitted a default complaint, the application for legal aid may also be submitted by other parties.
How should the application for legal aid be made?
Applications for the granting of legal aid are to be submitted in writing by means of an application form. The application shall specify precisely the case for which the granting of legal aid is requested.
If the application for legal aid is to precede submission of the complaint to the Federal Administrative Court, it must be submitted to the authority that issued the decision or was in default. After submission of the complaint, the application must be submitted to the Federal Administrative Court.
For proceedings on complaints against the exercise of direct administrative command and coercive power (measure complaint), the application must be filed directly with the Federal Administrative Court.
At the same time as the application for legal aid, the party shall submit a statement of their assets, income and family situation (statement of assets) no more than four weeks old. As far as the party can reasonably be expected so to do, corresponding documents shall also be submitted. In particular, debts and liabilities shall be stated in the statement of assets, as well as maintenance obligations and maintenance claims to their respective extents.
Effects of the application for legal aid
The granting of legal aid shall entitle the party, without further request, to be assisted by a lawyer for the purpose of drafting and presenting the complaint, application for referral, application for resumption of the proceedings or application for restitutio in integrum or for representation at the hearing.
Priority of legal advice in asylum and foreign national legal proceedings
Section § 52 of the Federal Office for Immigration and Asylum Procedures Act (BFA-VG[1]) provides that a foreign national or asylum seeker in proceedings before the Federal Administrative Court be provided with a legal advisor free of charge. This regulation has priority over legal aid. Within the scope of application of the BFA-VG, the provisions on legal aid are therefore not applicable as a rule (see the explanatory remarks on the government bill, Explanatory Memorandum 1255 BlgNR 25. GP 2). In addition, asylum seekers are exempt from costs and fees incurred in the procedure pursuant to § 70 of the Asylum Act 2005 (AsylG 2005[2]).
Inspection of records
The parties to a complaint process - first and foremost the appellant - and their authorised representatives have a right to inspection of records. They may inspect the parts of the administrative and appeal proceedings file concerning them at the Federal Administrative Court and make copies of the files or parts of the files themselves or have copies or printouts made at their expense.
Individual parts of records may be excluded from inspection, for example for reasons of public interest.
The costs for copying are 0.30 euros per record page.
- The inspection of records is possible during office hours - however, it has to be announced to the clerk of the competent judge at least three working days in advance.
- Please let the security personnel on site know that you are coming to inspect records.
- If you make copies, you will receive a receipt with your name, the reference number and the number of copies. The copying costs are to be paid in cash at the corresponding payment office in the branch offices in Vienna. The copies will then be handed over upon presentation of the payment receipt.
Holding of a hearing
On request, or, if considered necessary, ex officio, the Federal Administrative Court may conduct a hearing. A hearing will take place in particular if an oral discussion is expected to further clarify the legal matter.
The parties, especially the complainant and the witnesses to the proceedings, are summoned in writing to attend a hearing. The summons includes place and time of the hearing. Basically, it is an obligation to comply with the summons.
In general, hearings are open to the public. That means that anybody can be present at such a hearing as a listener. However, by order of the Federal Administrative Court, e.g. on the grounds of public morality or public policy, the public may be excluded.
In principle, in proceedings before the Federal Administrative Court representation by a lawyer is not obligatory. That means the parties may represent themselves even in hearings. However, each party is free to retain a lawyer to represent them.
Decisions of the Federal Administrative Court
The Federal Administrative Court rules by decision or finding.
In the following cases, decisions are passed:
- The proceedings are terminated.
- The complaint is rejected on formal grounds, e.g. if lodged out of time.
- The complaint is remitted to the authority having issued the notice of decision to pass a new notice of decision because that authority failed to conduct necessary investigations.
Rulings on content are made by the Federal Administrative Court in a finding which is made in the name of the republic.
Unless otherwise provided for in federal and local laws, the Federal Administrative Court has to take a decision within six months after receipt of the complaint.
The decision taken by the Federal Administrative Court may be pronounced in a hearing. If it was not pronounced, the decision passed in writing will be served upon the party. The appeal instructions include the legal protection options available to the parties.
Legal Protection against the Federal Administrative Court’s Decisions or Failure to Act
Decisions taken by the Federal Administrative Court can be contested by complaints to the Federal Constitutional Court and by ordinary or extraordinary appeals to the Supreme Administrative Court.
If the Federal Administrative Court fails to decide on complaints or procedural applications within six months after receipt, protection against this failure to act is granted in the form of an application to fix a time period to the Supreme Administrative Court. Federal and local laws can include both longer and shorter decision periods for the Federal Administrative Court.
For further information please check the following websites:
Charges
- Complaints,
- applications for restitutio in integrum,
- applications for resumption or
- separate applications for exclusion or granting of suspensive effect
- and applications for referral
are subject to charge, unless exemption from charges is provided for by law.
Amounts charged
Charges are as follows:
- for complaints, applications for restitutio in integrum and applications for resumption (including attachments), 30 euros,
- for an application (including attachments) for the exclusion or granting of suspensive effect of a complaint filed separately from the complaint, as well as requests for referral, 15 euros.
Incurrence and due date of charge debt
Liability for the charge is incurred at the time the submission is made; however, if a submission is made by means of electronic legal transaction, the liability is incurred when the data have been received in their entirety by Bundesrechenzentrum GmbH. The charges shall become due at that time.
Payment of charges
The charge shall be paid by transfer to the account of the “Finanzamt[1], Dienststelle Sonderzuständigkeiten” given below, stating the purpose of the transfer. The payment of the charge shall be evidenced by a payment voucher or a printout showing that a payment order has been issued. This receipt shall be attached to the submission. A separate receipt must accompany each submission.
If a submission is made by means of electronic legal transaction, the charge shall be paid by debit and collection. The submission shall indicate the account from which the charge is to be collected or the address code under which an account from which the charge is to be collected is stored.
Bank details of “Finanzamt Österreich, Dienststelle Sonderzuständigkeiten”:
BIC: BUNDATWW
IBAN: AT83 0100 0000 0550 4109
In the event of electronic transfer of the complaint charge by means of “Finanzamtszahlung[2]”, it is necessary to enter or select “Finanzamt Österreich, Dienststelle Sonderzuständigkeiten” as recipient. Furthermore, it is necessary to enter the Taxpayer’s ID as 109999102, the type of payment as “EEE – Beschwerdegebühr”, the date of the application triggering the time limit or of the event against which the complaint is directed as the specific date, and the amount.
NOTE: IBAN reserved for submission of pleadings by way of electronic legal transaction
AT56 0100 0000 0580 4713
[1] Austrian Tax Office
[2] Special type of Austrian tax office payment