Der Bescheid als Vehikel zur dynamischen Entwicklung im Dienste des Rechtsschutzes

Abstract

The Austrian system of “act-specific” legal protection in the field of administrative law as laid down in the Federal Constitutional Law (B-VG) was not compatible with the plurality of administrative acts for a long time. Due to the evolutive jurisdiction of the Austrian constitutional court (VfGH) painful gaps in the coverage of administrative acts by this system could be avoided. Furthermore, conceptions in the law that always led to appealable acts closed such gaps. The VfGH appears to assume, that the principle of the rule of law in the Austrian constitution would always require legal protection when there is an interference into subjective rights. This assumption will be contradicted here on the basis of historical arguments. Furthermore, it will be shown that the VfGH does not apply this legal view consequently in its decisions. In an effort to eradicate the last gaps, the Austrian constitutional legislature should consider an abolition of the “act-specific” system of legal protection and install a general guarantee of legal protection instead, such as laid down in Article 19 paragraph 4 of the German Constitution (dGG).