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If the authority violates the legally stipulated time limit to make a decision, a default complaint (Säumnisbeschwerde) can be filed by parties to the relevant procedure.[1] The expiry of the decision-making period must be certified. Premature default complaints will be rejected. The defaulting authority then has the option of presenting the matter to the Administrative Court or deciding on the matter themselves within three months. In the first case, the Administrative Court can only make a decision on relevant legal issues regarding the matter and the defaulting authority has up to eight weeks to make a decision based on the legal assessment of the Administrative Court. If the defaulting authority still does not make a decision, the Administrative Court ultimately has to decide on the matter based on the factual and legal situation at the time.
If public organs enforce the law through illegal or culpable behaviour or omission, there is the possibility of suing the Federation, the Provinces, municipalities, or other bodies of public law and the institutions of social insurance. This official liability (Amtshaftung) is the liability of the state (e.g. the federal government, the provinces and the municipalities). According to the Liability of Public Bodies Act (Amtshaftungsgesetz – AHG) the legal entities are liable under the provisions of civil law for any damage to any person or any property caused by unlawful acts of persons at fault when implementing the law on behalf of them. The persons implementing the law themselves are not liable vis a vis the persons injured. The state can only replace the damage in money. The legal process must be exhausted before an official liability claim can be asserted. The injured party must therefore first try to avert the damage through legal remedies/complaints/revision.
If the official authority deliberately abuses its power (Amtsmissbrauch), the individual may face severe legal consequences under criminal law.[2]
Apart from the above-mentioned constellations, there is no general rule on remedies against omissions, e.g. against lack of inspections or lack of appropriate measures to address breach of environmental laws.
If an individual does not comply with a judgement, an execution procedure will be initiated by the court. Even in cases of financial penalties, e.g. an administrative penalty, failed execution attempts can lead to imprisonment.
[1] Article 130(1) (3) Federal Constitutional Law (B-VG).
[2] Section 302(1) and (2) of the Criminal Code (Strafgesetzbuch – StGB).
Last update:
27/07/2021
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