VwGH: Complaints But No Appeals for Chamber of Labour

Sept 16, 2022 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichthof, VwGH) has clarified that the Chamber of Labour (Arbeiterkammer, AK) does have the right to file a complaint against decisions involving the revocation of business licenses for personnel leasing firms (Section 135 of the 1994 Commercial Code; Gewerbeordnung, GewO 1994), but it does not have the right to file an appeal.

In the original proceedings, at the request of the Chamber of Labour, the Municipality of the City of Vienna withdrew a limited liability company's authorisation to carry out the business of leasing out workers on the grounds that the company was no longer reliable under trade law pursuant to Sections 135 (4) and (5) GewO 1994.

The Administrative Court overturned the decision of the municipal authorities which revoked the license.

The Chamber of Labour appealed against this decision, yet wrongly so, as the Administrative Court ruled:

Pursuant to Section 135 (6) GewO 1994, both the Chamber of Labour and the Chamber of Commerce are entitled to file applications for the revocation of business licenses for personnel leasing. The respective other chamber may then submit an expert opinion. Both chambers have the right to lodge a complaint against the decision issued, but the law does not provide for a right of appeal.

Based on Article 133 (6) item 1 of the Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz,B-VG), the AK is only entitled to a right of appeal if its subjective public right has been violated. This, however, presupposes a distinct sphere of interest of the party filing the appeal and directed against the state as the holder of sovereign power. A subjective public right only exists if a mandatory provision is intended to serve not only the public interest but also the interest of individuals.

The provisions of Section 135 (6) GewO 1994 do not grant such a right. Indeed, it cannot be derived which distinct sphere of interests directed against the state as holder of sovereign power the Chamber of Labour would have to safeguard in such proceedings, especially since the withdrawal of a business license, if the relevant criteria are fulfilled, is also in the interest of the state.

VwGH Ro 2021/04/0019-4 (7 February 2022)