VwGH: Disciplinary Penalty despite Previous Warning

Dec 6, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) had to decide whether the imposition of a disciplinary sanction on a civil servant who had previously received a warning under Section 109(2) of the 1979 Austrian Civil Service Act (Beamten-Dienstrechtsgesetz 1979, hereinafter BDG) was contrary to the principle of the prohibition of double jeopardy.

The co-defendant is a senior civil servant in a relationship of service under public law with the federal government. He received a written reprimand from his superior for his conduct in the course of his duties. The civil servant’s department also filed a criminal complaint with the public prosecutor’s office and a disciplinary complaint with the Austrian federal disciplinary authority.

The public prosecutor had dropped the case. The Austrian federal disciplinary authority has also announced that no disciplinary proceedings would be initiated. Such proceedings would have to be dropped under the principle of non-repetition if a warning had already been issued in the same matter.

The disciplinary counsel’s appeal against this decision was rejected by the VwGH. The Disciplinary Counsel’s extraordinary appeal is directed against this decision.

The VwGH confirmed that the prohibition of double jeopardy also applies in disciplinary law.

However, the VwGH had already stated in its decision of 17 January 1991 (90/09/0168) that a warning has no normative content and no legal effect. It is an instrument of personnel policy management within the framework of the right to issue instructions and not a disciplinary sanction to be pronounced by official notification within the meaning of Section 92(1) of the BDG.

Consequently, a warning does not constitute a decided case and does not exhaust the disciplinary powers of the authority. Consequently, the warning issued by the superior did not stand in the way of further disciplinary measures.

VwGH Ra 2024/09/0018 (18 June 2024)