OGH: Public Liability and Indirect Federal Administration

Sept 9, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has determined that any wrongful conduct by members of provincial administrative courts (Landesverwaltungsgericht, LVwG) is to be attributed to the federal government under public liability law only when they act in matters of indirect federal administration.

In the initial case, administrative penal proceedings were brought against the plaintiff for an alleged violation of the Motor Vehicles Act (Kraftfahrtgesetz, KFG). The plaintiff sought reimbursement from the federal government (defendant) for the costs he had incurred. He based his claim on legally unjustifiable actions by the Federal Police Directorate, the district administrative authority, and a provincial administrative court.

The Federal Court replied that actions by members of the regional administrative court are not the responsibility of the federal government.

The Austrian Supreme Court agreed with the plaintiff as follows:

For the attribution of members to a respective legal entity within the scope of Section 1 (1) of the Public Liability Act (Amtshaftungsgesetz, AHG), their inclusion within an organisational unit is not the decisive point, but rather in whose name and for whom a member commits a culpable act within their respective function.

The Austrian Motor Vehicle Act is enforced by indirect federal administration, which is why, in accordance with the distribution of competences in Articles 10 to 15 of the Federal Constitutional Act, regional administrative courts are the competent courts for complaints. Furthermore, the previous Administrative Senates of the respective federal provinces already acted ‘on behalf’ of the federal government when they ruled in the latter's areas of authority. According to the Austrian Supreme Court, it is not evident that lawmakers intended to change this functional attribution by amending the 2012 Administrative Jurisdiction Act which replaced the Administrative Senates with the provincial administrative courts.

In any case, the fact that regional authorities are subject to directives is not relevant for the establishment of attribution of responsibility. The fact that the federal government cannot influence the staffing of the provincial administrative courts is also of no relevance within this context.

OGH 1Ob115/22a (14.07.2022)