VwGH: When Is a Hearing Necessary?

Sept 15, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has confirmed its case law on the holding of oral hearings before administrative courts. An oral hearing is required in cases where the findings are specifically disputed.

In the main proceedings, a permit for a citric acid production plant had been granted under the Environmental Impact Assessment Act 2000 (Umweltverträglichkeitsgesetz 2000, UVP-G) by the Government of Lower Austria (the competent authority). This decision was challenged before the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) by a recognised environmental protection organisation and six neighbours who, in their request for an oral hearing, challenged the accuracy of the expert opinion on which the authority had based its decision and explained the reasons why the expert opinion was flawed by submitting their own private expert opinion.

The BVwG did not hold a hearing and dismissed the appeals.

As a result, the environmental organisation and the neighbours lodged a successful extraordinary appeal with the VwGH, which ruled as follows:

Pursuant to Section 24 (1) of the Administrative Court Procedure Act Verwaltungsgerichtsverfahrensgesetz, hereinafter VwGVG), administrative courts shall hold a public hearing upon request or, if the court deems it necessary, ex officio. Pursuant to Section 24 (4) of the VwGVG, administrative courts may dispense with a public hearing unless otherwise provided for by federal or province law despite the request by one of the parties, if it appears from the documents that the oral discussion is not likely to lead to a further clarification of the case and neither Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms nor Article 47 of the Charter of Fundamental Rights of the European Union preclude dispensing with a public hearing.

However, in accordance with the case law of the VwGH, administrative courts may not assume that they have to deal exclusively with legal questions if the facts of the case are specifically in dispute before an administrative court and not just generally empty of content. However, in the case at hand, the appellants (also by referring to the private expert opinion they submitted) specifically contested the factual assumptions that are decisive for the decision. Whether or not challenging the underlying factual assumptions is promising is irrelevant.

Therefore, the conditions for a waiver of the oral hearing were not in place.

VwGH Ra 2022/07/0081 (6 July 2023)