Introduction
There is one cross-jurisdictional dialogue in the interwar period to which comparative lawyers should pay more attention: the diffusion of the Austrian general law on Administrative Procedure of 1925, also thanks to its circulation by scholars and judges, including those jurists who migrated after the collapse of the Hapsburg Empire after World War I.
The Austrian Allgemeine Verwaltungsverfahrensgesetz (AVG, or Administrative Procedure Act)of 1925 dominated the administrative law scene and its dogmatics for at least fifty years in Central Europe. However, despite the centrality of Austrian law, the importance of the AVG (in terms of influence, elaboration of a model, and diffusion) is often underestimated in recent research. The Administrative Procedure Act of 1925 codified principles, institutions, rules and forms that had been elaborated over fifty years of Verwaltungsgerichtshof case law. Therefore, before arguing the centrality of the AVG in Mitteleuropa, its roots need to be briefly recalled.
The Verwaltungsgerichtshof and its case law
The Verwaltugsgerichtshof was established in 1875 by the Gesetz vom 22 Oktober 1875, betreffend die Errichtung eines Verwaltungsgerichtshofes. The law entered into force on April 2nd, 1876 and the first judgment was handed down on October 26th, 1876. (G. della Cananea & S. Mannoni, Administrative Justice Fin de siècle. Early Judicial Standards of Administrative Conduct in Europe (1890–1910), Oxford, Oxford University Press, 2021).
The Austrian Administrative Court played a crucial role in drawing up general principles of administrative action. When the law establishing the Verwaltungsgerichtshof (from now on VwGH) was adopted in 1875, the legislation on administrative matters was antiquated, incomplete and above all lacking in a general law on administrative action. The legislator granted the judge the power to annul administrative acts for “lack in the essential forms of the procedure” but avoided defining or listing these essential forms, leaving this task to the VwGH. Therefore, the court had to define general standards of administrative action to be used as a criterion for assessing the legitimacy of administrative acts in concrete cases. The VwGH elaborated several procedural rights that individuals could exercise against the administrative authorities. (A. Ferrari Zumbini, “Standards of Judicial Review on Administrative Action developed by the Austrian Verwaltungsgerichtshof in the Austro-Hungarian Empire” in The common core of European administrative law working paper series n. 5 issue 1/2019).
The first and most important principle established by Austrian administrative case law is the Parteigehör (the right of the interested party to be heard), whereby the person who will be adversely affected by the administrative act must be heard before the act is passed. The VwGH did not limit itself to affirming the right to be heard but also required that the Gehör (the hearing) must always be a rechtlicher Gehör, which means that private individuals are guaranteed a series of rights and protections during the proceedings.
With respect to exercisable rights, parties must have access to the records. Indeed, those concerned must have full knowledge of all the documents that the Administration uses to establish the facts and circumstances relevant to the adoption of the act. Moreover, private individuals must have the right to submit documents to comment on and oppose the facts and circumstances as they emerge from the documents held by the administration. In addition to the right to present documents, the VwGH also established the corresponding and fundamental obligation for the Administration to give due consideration to any documents produced by private individuals. Lastly, the court affirmed the general principle of due process, a principle that all administrative procedures must comply with regardless of the specific sectorial regulatory discipline. Thus, whenever the Administration carries out a procedure (Verfahren) it is legally bound to ensure that it is a fair proceeding (Rechtsverfahren).
As many Authors recognized, the Austrian Administrative Procedure Act of 1925 would not have been conceivable without the case law of the VwGH as the AVG simply transposed the principles developed in the fifty years of the Administrative Court into positive law in many respects.
The Austrian Allgemeine Verwaltungsverfahrensgesetz (AVG) of 1925
The Allgemeine Verwaltungsverfahrensgesetz is traditionally regarded as an innovative codification, linked to the normativist influence of Hans Kelsen’s Stufenbautheorie (the theory of the ‘stepped’ structure) of juridical norms. In contrast, a broad correspondence between the structure and principles of the AVG and the previous case law of the Verwaltungsgerichtshof has been shown to exist (A. Ferrari Zumbini, “Standards of Judicial Review on Administrative Action developed by the Austrian Verwaltungsgerichtshof in the Austro-Hungarian Empire” in The common core of European administrative law working paper series n. 5 issue 1/2019).
The creative power of the VwGH was put in place and recognized from the very beginning. The legislator, while adopting the law enacting the VwGH, knew that the expressions used in this law were very general and that there was no legal definition of those expressions. Above all, the legislator knew that there was no rule on “essential forms of procedure”. The Administrative Procedure Act of 1925 formally constitutes a codification of principles, institutions, rules and forms that had been elaborated over fifty years of Verwaltungsgerichtshof jurisprudence.
The AVG has played a central role as an archetype of discipline, exerting a profound influence in other legal systems, not always adequately recognised.
The neglected role of the Austrian AVG
Although Austria was the first country to codify a general regulation of administrative procedure, the importance of Austrian law (in terms of its influence and the development of a model) is often underestimated in recent research. Until the 1960s, at least in continental Europe, the importance of the Austrian contribution was clearly recognised and highlighted, but over time its centrality gradually diminished for reasons that must also be examined in depth from the point of view of the history of ideas.
Austria is often overlooked in the more recent works on comparative administrative law, even in the most important and impressive works devoted to the codification of administrative procedures (the complex reasons explaining this choice have been analysed in G. della Cananea, A. Ferrari Zumbini, O. Pfersmann, (eds.), The Austrian Codification of Administrative Procedure. Diffusion and Oblivion 1920-1970, Oxford, OUP, 2023). Austria is often forgotten also in comparative studies from the English-speaking world. Frank Goodnow’s first treatise on comparative administrative law, published in 1897, gave an overview of the national and local administrative systems of the United States, England, Germany and France, but no chapter was devoted to the Austrian Empire. In comparative studies, the German-speaking country of choice is often Germany, not only because of its undisputedly great public law tradition. However, Germany has always been bound to the legacy of Otto Mayer, who systematised administrative law based on the concept of the administrative act, since this is the basis for judicial protection.
The spread of the Austrian AVG
The diffusion of the AVG as a model, and even as an archetype, is a very complex phenomenon, that cannot be adequately investigated and analysed in a short blog post (the topic is deeply examined in a forthcoming book: G. della Cananea, A. Ferrari Zumbini, O. Pfersmann, (eds.), The Austrian Codification of Administrative Procedure. Diffusion and Oblivion 1920-1970, Oxford, OUP, 2023). The more limited purpose of this post is to shed light on the personal factor that contributed to the spread of the Austrian law on administrative procedure. Indeed, after World War I, many scholars and judges of the Former Austro-Hungarian Empire moved to other Countries (or became citizens of other countries even remaining in the same place), becoming scholars and judges of other countries and contributing to the spread of the Austrian legal influence.
The legal orders most profoundly inspired by the Austrian codification were those that had been part of the Austro-Hungarian Empire in some way. Although it would have been reasonable to assume that the nation states that emerged from the ashes of the Empire in 1918 would have disregarded the Austrian regulations in order to reassert their conquered independence, this was not the case.
Moreover, the model did not spread to the former imperial territories alone. In fact, the draft of the AVG was the model for the law on administrative procedure that was adopted in Liechtenstein as early as 1922 (Landesverwaltungspflegegesetz).
A clear and precise transposition of the Austrian model can be found in Poland. In 1922 a Supreme Administrative Court was established, modelled on the Verwaltungsgerichtshof, and whose first president, Jan Sawicki, had been a judge at the Administrative Court in Vienna. On 22 March 1928, the Polish Code of Administrative Procedure was enacted.
The sequence of events in Czechoslovakia was very similar to that in Poland. Due to its historical membership of the empire, the new-born nation created from the ashes of the Austro-Hungarian Empire was well aware of the fundamental importance of the existence of an administrative jurisdiction. As early as 1918, a Supreme Administrative Court was therefore established, which did not merely follow the model of the Verwaltungsgerichtshof. Indeed, among the first members of this court were two judges who, until 1918, had been judges of the Verwaltungsgerichtshof in Vienna and who became the first and second Presidents of the Czechoslovak Administrative Court respectively: František Pantůček and Emil Hácha brought their cultural background with them. Czech scholarship is unanimous in its agreement that the Czechoslovak Administrative Court predominantly used the previous Viennese case law je when deciding cases (at least until the 1950s, when the new Communist regime abolished administrative jurisdiction). The Code of Administrative Procedure was adopted in 1928, substantially transposing the Austrian law.
The Kingdom of Yugoslavia also adopted a general law on administrative procedure in 1930, which is unanimously recognised by scholarship as emphasising the Austrian model (See the chapter by S. Lilić, M. Milenkovic in G. della Cananea, A. Ferrari Zumbini, O. Pfersmann, (eds.), The Austrian Codification of Administrative Procedure. Diffusion and Oblivion 1920-1970, Oxford, OUP, 2023). Large parts of Yugoslavia were part of the Austro-Hungarian empire until its dissolution in 1919. Austrian influence was thus strongly present. Indeed, the majority of civil servants and judges in the country, especially in the pre-World War II period, were educated in the Austrian tradition.
Even in the Italian experience, where Austrian law exerted little influence, some connecting elements deriving from personal factors can be traced. Suffice it to cite a small example, representative of a more complex general context. At the end of the First World War, a provisional section of the Council of State was established in Italy to decide pending (and new) cases in the redeemed provinces. The VI Provisional Chamber performed its functions from 1919 to 1923, applying the law in force in the former empire, pending the completion of the annexation of the territories with the extension of the Italian legal system. It was therefore necessary to appoint judges who were familiar with the law of the empire. The section was presided over first by the Istrian Francesco Salata, then by Guido de Bonfioli Cavalcabò, who had been a judge of the VwGH from 1910 to 1918 and after the fall of the empire had opted to take up service in the administration of the Kingdom of Italy. After the suppression of the provisional section, Guido de Bonfioli Cavalcabò continued to carry out his jurisdictional functions in the other Sections of the Council of State, taking with him his background in Austrian administrative law.
Conclusion
The Allgemeine Verwaltungsverfahrensgesetz codifies the discipline of the administrative procedure as outlined by a copious case law, in the vanguard of the protection of the rights of individuals, which rested on a long tradition of good Habsburg administration. The diffusion and transposition of the procedural model of the AVG highlights the fundamental contribution that Austrian legal science of the late 19th and early 20th century made to the formation of a common legal heritage of administrative law in Europe. The personal factor – intended as the circulation of scholars and judges of the former Austro-Hungarian Empire toward other countries – played an important role in this phenomenon.
Posted by Professor Angela Ferrari Zumbini (Professore Associato – Università degli Studi di Napoli Federico II)
Suggested citation: A Ferrari Zumbini, “The importance of the personal factor in the diffusion of the Austrian general law on administrative procedure”, BACL blog, available https://wp.me/p80U0W-1jz
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This piece belongs to the “Cross-jurisdictional dialogues in the Interwar period” series dedicated to less-known legal transfers which have had a palpable impact on the advancement of the law. The Interwar period was a time of disillusionment with well-established paradigms and legislative models, but also a time of hope in which comparative dialogue and exchange of ideas between jurisdictions thrived. The series is edited by Prof Yseult Marique (Essex University) and Dr Radosveta Vassileva (Middlesex University).
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