An extract from our legal representation in front of the Austrian Higher Administrative Court (VwGH)

VwGH 22.03.2019, Ra 2017/04/0137
Keywords: Approval of a mining operation plan and approval of a mining facility.
Areas of law: Energy law, mineral raw materials law, administrative procedural law.

This recent decision of the Higher Administrative Court in Austria (Verwaltungsgerichtshof/VwGH) is particularly important from the point of view of procedural law, since it clarifies the prerequisites for an extraordinary appeal to the VwGH. Pursuant to Article 133 (4) of the Federal Constitutional Act (Bundes-Verfassungsgesetz/B-VG), an appeal to the Higher Administrative Court against the ruling of a lower administrative court is only admissible if it (i.e. the decision on the appeal, see also Administrative Court 24.06.2014, Ra 2014/05/0004, recital 3) depends on the solution of a legal question of fundamental importance.

In the present case, this condition could not be fulfilled by the opposing appellant. Rather, according to the Higher Administrative Court, the interpretation of party statements made by the lower administrative court is an individual case decision which is not revisable unless the legal assessment appears unjustifiable.

In concreto, a neighbour filed written objections, but these were explicitly based on § 82 (2), Mineral Raw Materials Act (Mineralrohstoffgesetz/MinroG), although these interests can only be asserted by the local municipality. Even if the submission was also to be understood as an objection under § 116 1 MinroG, the Administrative Court was of the opinion that it was not discernible which subjective rights were to be asserted. Overall, the opponent's appeal was therefore to be dismissed.

VwGH 08.08.2018, Ra 2017/04/0112; 12.09.2016, Ra 2016/04/0052; 14.10.2015, Ra 2015/04/0074.
Sources: ZVB 2018/120 (Moick et al.) (zu VwGH Ra 2017/04/0112); RPA-Slg 2016/54 (zu VwGH Ra 2016/04/0052).
Keywords: Public procurement, bidding consortium, subcontractor, binding effect, Landesverwaltungsgericht (LVwG), Unabhängiger Verwaltungssenat (UVS).
Areas of law: Public procurement law (Bundesvergabegesetz/BVergG 2006); general administrative law; administrative procedural law.

The above-mentioned decisions of the Higher Administrative Court in Austria (Verwaltungsgerichtshof/VwGH) are based on identical facts: One municipality conducted an award procedure for flood protection measures. The bidding consortium represented by our law firm was excluded from the award of the contract because, among other reasons, a subcontractor was not mentioned in the bid. The then competent Independent Administrative Senate (Unabhängige Verwaltungssenat/UVS) decided in 2013 that there was no obligation to cite a civil engineer as a subcontractor if the bidder provided the service himself and this service would only be confirmed by a civil engineer (as a structural engineer).

The contracting municipality appealed against this decision of the UVS, with the result that, after various rulings of the Higher Administrative Court (including Administrative Court rulings of October 14, 2015, Ra 2015/04/0074 and September 12, 2016, Ra 2016/04/0052), the case was finally to be decided by the Landesverwaltungsgericht (LvwG/Regional Administrative Court), which had meanwhile been established. [Explanation: With the major Administrative Jurisdiction Amendment 2012 (BGBl I 51/2012), which came into force for the most part on 01.01.2014, the UVS were replaced by LVwG. However, the LVwG are not an instance superior to the UVS, but have (in simplified terms) taken over their function.] Contrary to the above mentioned decision of the UVS, the LVwG now came to the conclusion that there was an irreparable defect and thus a compelling reason for withdrawal, because the engaged structural engineer as civil engineer was not mentioned as a subcontractor in the bidding documents.

For this purpose, the Administrative Court decided, in the spirit of the bidding consortium represented by our law firm, that both proceedings - the one before the UVS and the one before the LVwG - were based on the assessment of one and the same reason for withdrawal, namely whether the engaged civil engineer or test statistician should have been named as a subcontractor in the bidding documents. The matter is therefore identical, which is why the LVwG should not have decided on the facts again. The principles "ne bis in idem" and "res iudicata" also apply in administrative proceedings. The same matter may therefore only be the subject of one final decision as long as neither the legal situation nor the essential facts of the case have changed! For the concrete procedure it followed: The LVwG is bound by the decision of the UVS, according to which there is no reason for withdrawal of the bidding consortium in so far as the civil engineer or structural engineer has not been named as a subcontractor.

VwGH 08.05.2013, 2011/04/0193
Sources: RdU-LSK 2013/65 = wbl 2013/244 = ZfVB 2013/1433.
Keywords: Party status and rights of a neighbouring municipality, company traffic and transport on public roads.
Areas of law: Mineral raw materials law (Mineralrohstoffgesetz/MinroG).

In this decision, the Higher Administrative Court in Austria (Verwaltungsgerichtshof/VwGH) first clarified that a municipality filing a complaint under the Mineral Raw Materials Law (Mineralrohstoffgesetz/MinroG) could only be affected in its rights worthy of protection pursuant to § 119 (6) MinroG if its property or other rights in rem were infringed. With regard to the asserted health-endangering immissions, however, the municipality - as a legal person - does not have the status of a party in the present proceedings.

Insofar as the municipality argued that the mining plant would infringe its property rights because the plant would involve an increased volume of traffic, the Higher Administrative Court also followed the arguments put forward on behalf of our client and confirmed the approval of the plant because the transport on a road with public traffic and the damages resulting from it cannot be considered in a plant-related permission procedure.

The background of this decision is as follows: Company vehicles driving on a public road cannot be attributed to the company plant itself. However, the municipality is entitled to other means - above all under road law - in order to prevent such burdens (see, for example, § 16 of the Upper Austrian Roads Act 1991 concerning the charging of additional operational costs).

VwGH 21.03.2011, 2008/04/0083
Sources: RdW 2011/353 = RPA 2011, 185 (Estermann) = ZfVB 2011/1731.
Keywords: Public invitation to tender, failure to meet deadlines, exclusion from bid.
Areas of law: Public procurement law (Bundesvergabegesetz 2006/BVergG 2006).

The core question of this decision of the Higher Administrative Court in Austria (Verwaltungsgerichtshof/VwGH) was whether an offer can be excluded from a public procurement pursuant to § 129 (2) Public procurement law (Bundesvergabegesetz 2006/BVergG 2006) solely because information was not provided in due time. The Higher Administrative Court answered this question in the negative and annulled the decision challenged by our client.

In its statement, the Higher Administrative Court stated that § 129 (2) BVergG 2006 grants a discretion as to whether an offer should be excluded due to failure to meet a deadline (see also Schwartz/Küchli in Schwartz, BVergG 2006 § 129 Rz 87 ff). This discretion must be exercised taking into account the principles of the award procedure, in particular the equal treatment of bidders. However, the failure to meet a deadline alone cannot justify exclusion, as failure to meet a deadline is only a basic prerequisite for the applicability of § 129(2) BVergG 2006.

Finally, the Higher Administrative Court clarified that the mandatory elimination of an offer is only provided for in the cases of § 68(1)(7) BVergG 2006. However, this only includes information regarding the authority, the professional reliability, and the technical, financial and economic capacity of the bidder.

VwGH 27.06.2007, 2004/04/0221
Sources: RdU-LSK 2008/19 = ZfVB 2008/29.
Keywords: Qualification of an order as an official decision or mere procedural order.
Areas of law: Administrative and procedural law, mineral resources law (MinroG).

The law concerning mineral raw materials has already been a core area of our law firm when the “General Austrian Mountain Law” from 1854 hast still been in force. Therefore, it is not surprising that our firm also accompanied one of the first proceedings covered by the the new Mineral Resources Law in Austria (Mineralrohstoffgesetz/MinroG) from 1999.

In the decision of the Higher Administrative Court (VwGH) at issue here, the central question was whether the mandate of an authority within the meaning of § 178 (1) MinroG, according to which an unlawful state of affairs is to be removed, is to be qualified as an administrative decision against which an appeal can be lodged, or whether it is a mere procedural order against which one cannot directly defend oneself as a person concerned.

The Higher Administrative Court came to the convincing conclusion that the mandate of an authority within the meaning of § 178 (1) MinroG has the quality of an official decision (see also Holoubek/Potacs, Öffentliches Wirtschaftsrecht3 p. 552), irrespectively of the fact that in the case at hand the "order" was neither designated as an "official decision", nor did it contain any instructions on the right of appeal or a date. In this context, the Higher Administrative Court emphasized that § 178 (1) MinroG - in contrast to § 360 (1) Trade, Commerce and Industry Regulation Act (Gewerbeordnung/GewO 1994) - does not contain a step-by-step procedure according to which the authority could first issue a procedural order and only then an official decision. Rather, it follows from the reference in § 178 (1) MinroG to the Administrative Enforcement Act (Verwaltungsvollstreckungsgesetz/VStG 1991) and the associated enforceability of the order that it must be a decision that may be contested with an appeal.

VwGH 16.11.2005, 2003/08/0177
Fundstellen: SVSlg 54.394.
Keywords: Agriculture, forestry, and social security
Areas of law: Social security law (BSVG, ASVG, AlVG).

The subject of the proceedings before the Austrian Higher Administrative Court (Verwaltungsgerichtshof/VwGH) was the question of whether an assistant in an agricultural and forestry undertaking is subject to the full and unemployment insurance obligation under the General Social Security Law (Allgemeines Sozialversicherungsgesetz/ASVG) and under the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz/AlVG). As is well known, this depends on whether the person concerned is to be classified as an employee within the meaning of § 4 (2) ASVG, i.e. is employed in a personal and economic dependence for payment.

In the present case, the relevant authority came to the conclusion that the employee was personally dependent and justified this with the factual circumstances, but without taking the contractual agreement into account. The appeal brought on behalf of our client was directed against this decision, whereupon the Higher Administrative Court granted our appeal in the last instance and annulled the contested decision.

According to the legal opinion represented by the Higher Administrative Court, it is not primarily the contract which is decisive, but the "true circumstances". However, it is nevertheless essential to establish the underlying agreement, as the parties to the contract have various options open to them, particularly when it comes to shaping legal relationships concerning agricultural and forestry activities. According to the Higher Administrative Court, possible agreements are leasing or ususfructus rights, "service land agreements", partnerships under civil law, and "wood charters".