COMMISSION STAFF WORKING DOCUMENT 2020 Rule of Law Report Country Chapter on the rule of law situation in Austria Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2020 Rule of Law Report The rule of law situation in the European Union
Date: 2020-09-30
Institutions: European Commission, Secretariat-General
Subjects: Austria, administrative transparency, coronavirus disease, corruption, democracy, epidemic, independence of the judiciary, infringement of EU law, political rights, rule of law

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 30.9.2020  SWD(2020) 319 final  COMMISSION STAFF WORKING DOCUMENT 2020 Rule of Law Report Country Chapter on the rule of law situation in Austria Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS  2020 Rule of Law Report      The rule of law situation in the European Union {COM(2020) 580 final} - {SWD(2020) 300 final} - {SWD(2020) 301 final} - {SWD(2020) 302 final} - {SWD(2020) 303 final} - {SWD(2020) 304 final} - {SWD(2020) 305 final} - {SWD(2020) 306 final} - {SWD(2020) 307 final} - {SWD(2020) 308 final} - {SWD(2020) 309 final} - {SWD(2020) 310 final} - {SWD(2020) 311 final} - {SWD(2020) 312 final} - {SWD(2020) 313 final} - {SWD(2020) 314 final} - {SWD(2020) 315 final} - {SWD(2020) 316 final} - {SWD(2020) 317 final} - {SWD(2020) 318 final} - {SWD(2020) 320 final} - {SWD(2020) 321 final} - {SWD(2020) 322 final} - {SWD(2020) 323 final} - {SWD(2020) 324 final} - {SWD(2020) 325 final} - {SWD(2020) 326 final}  
 
 
ABSTRACT 

The level of perception of independence of the Austrian justice system is high. At the same 
time,  concerns  have  been  expressed  regarding  the  procedures  for  the  appointment  of 
administrative  court  presidents  as  well  as  the  right  of  the  Minister  of  Justice  to  instruct 
prosecutors in  individual cases. The Government has announced a general  reflection on the 
issues of judicial recruitment, including in administrative courts, and on reporting obligations 
for  prosecutors,  which  could  contribute  to  addressing  these  concerns.  Efforts  to  further 
develop the high level of digitalisation of the justice system are ongoing and the resources of 
the justice system have been increased. This could contribute to addressing certain efficiency 
challenges which administrative courts are facing.  

Austria has  the legal  and institutional  framework broadly in  place to  prevent  and prosecute 
corruption. Austria has undergone and is still undergoing important legislative anti-corruption 
reforms,  following  prominent  cases  linked  to  political  party  financing  and  subsequent 
investigation  of  high-level  public  officials.  However,  challenges  remain  with  respect  to  the 
integrity framework for  members of Parliament.  A legal  framework on lobbying exists, but 
its scope and the information made available in the lobbying register to the public are limited. 
The  Central  Public  Prosecutor’s  Office  for  Combating  Economic  Crimes  and  Corruption 
plays a key role in combatting corruption, but it is facing challenges related to comprehensive 
reporting obligations and limited resources.   

The  legal  framework  concerning  media  pluralism  is  based  on  a  set  of  constitutional  and 
legislative safeguards. The foundations of the democratic media system are strong and media 
authorities function in an independent manner. However, risks to media pluralism have been 
identified in relation to the lack of a comprehensive and enforceable framework guaranteeing 
the  right  of  access  to  information,  and  the  Government  is  reflecting  on  a  reform  for  its 
improvement.  Some  concerns  were  raised  over  regulatory  safeguards  for  media  outlets’ 
editorial  independence.  Media  ownership  is  subject  to  strict  transparency  rules,  although 
media  proprietors’  shareholdings  in  other  companies  are  not  always  fully  covered.  Austria 
allocates  relatively  high  levels  of  state  advertising  to  media  companies,  and  concerns  were 
raised over potential political influence over such allocation, in the absence of rules on its fair 
distribution.  

The  process  for  enacting  laws  usually  includes  a  consultation  of  stakeholders  and  general 
public,  although  there  is  no  specific  legal  framework  in  that  respect  and  consultation 
sometimes  does  not  take  place  or  with  short  deadlines.  The  Constitutional  Court  and  the 
Ombudsman  Board  play  an  important  role  in  the  checks  and  balances,  as  illustrated  in  the 
context of the COVID-19 pandemic. Besides the Ombudsman Board, which functions as the 
National Human Rights Institution, other independent authorities, such as the Ombudsperson 
for  Equal  Treatment,  the  Disability  Ombudsman,  and  the  Ombudsperson  for  Children  and 
Youth contribute to upholding fundamental rights in their respective areas. The Government 
has announced measures to further support civil society and has committed to fostering active 
dialogue and respectful engagement with civil society organisations. 

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I.  JUSTICE SYSTEM  

The Austrian justice system has two separate branches. The ordinary jurisdiction consists of 
115  district  courts,  20  regional  courts,  four  higher  regional  courts  and  the  Supreme  Court. 
Since 2014, Austria also has a separate administrative court system with eleven first-instance 
administrative  courts  (nine  regional  administrative  courts,  one  federal  administrative  court 
and the finance court) and the Supreme Administrative Court.1  Austria has a Constitutional 
Court. Judicial  appointments  are made by the executive based on non-binding proposals  by 
staff panels composed of judges2 or plenary assemblies of a court, which draw up a ranked 
list of three candidates for each post.3 The Prosecution Service is a judicial authority set up in 
a hierarchical structure under the supervision of the Minister of Justice, who can issue both 
general instructions and instructions in individual cases.4 Lawyers are registered in one of the 
nine  local  Bar  associations,  which  are  public  law  corporations  and  autonomous  self-
governing bodies, organised under the umbrella of the Federal Bar Association.5 

Independence  

The  perceived  level  of  independence  of  the  judiciary  is  consistently  very  high.  The 
independence of courts and judges is perceived as ‘fairly or very good’ by 86% of the general 
public, a figure which has consistently increased since 2016. Among companies, the level of 
perceived  independence  is  also  high,  with  73%  considering  it  to  be  ‘fairly  or  very  good’, 
though it was even higher in previous years.6  

The  procedures  for  the  appointment  of  administrative  court  presidents  are  subject  to 
debates. Stakeholders and the Council of Europe have repeatedly raised concerns relating to 
the appointment of administrative court presidents.7 While there are no concrete reform plans 
at this stage, the Government is reflecting on aligning recruitment standards for ordinary and 
administrative  courts.8  Under  the  current  regime,  administrative  court  presidents  and  vice-
presidents  (who  also  adjudicate)  do  not  have  to  be  selected  from  among  appointed 
administrative judges, although they have to fulfil the general constitutional requirements for 

1   Several  of  the  district  and  regional  courts  are  specialised  courts.  This  structure  does  not  necessarily 
correspond to the appeals instances. See CEPEJ (2020), Study on the functioning of judicial systems in the 
EU Member States. 

2   Staff panels exist at regional and higher regional courts, the Supreme Court and administrative courts and are 
also responsible for proposals for lower courts. Staff panels include the president, vice-president and three to 
five other members of the court, which are elected by their peers. Constitution Art. 87 paras 2-3 and Service 
Act for Judges and Public Prosecutors Arts. 25 to 49.  

3   Before  becoming  an  ordinary  court  judge,  candidates  must  first  apply  to  a  post  for  a  trainee  judge  and 
complete  a  traineeship  (usually  four  years).  Trainee  judges  are  appointed  by  the  executive  on 
recommendation of a court president of a  higher regional court. After completing the traineeship, they can 
apply for a vacant post in accordance with the procedure described above. Service Act for Judges and Public 
Prosecutors, Arts. 1 to 24.  

4   Public Prosecutor Act, Arts. 8, 8a, 29-31.  
5   Lawyers Code, Chapters III and V.  
6   Figures 44 and 46, 2020 EU Justice Scoreboard. The level of perceived judicial independence is categorised 
as  follows:  very  low  (below  30%  of  respondents  perceive  judicial  independence  as  fairly  good  and  very 
good); low (between 30-39%), average (between 40-59%), high (between 60-75%), very high (above 75%). 
7   This  includes  opinions  by  the  Consultative  Council  of  European  judges,  GRECO  recommendations  and 

national associations of the judiciary, see footnotes 12, 15 and 16.  

8   Government programme 2020-2024, p. 23.  

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becoming  an  administrative  court  judge.9  Their  appointment  is  regulated  by  the  laws 
governing  the  different  federal  and  regional  administrative  courts.  While  the  law  on  the 
federal  administrative  court  foresees  the  involvement  of  an  independent  commission 
composed  of  members  of  the  executive  and  judiciary10,  this  is  not  the  case  for  all  regional 
administrative  courts.  Although  there  are  certain  regional  differences,  these  appointments 
generally remain in the prerogative of the executive.11 In 2019, the Council of Europe pointed 
to  the  absence  of  judicial  involvement  in  the  appointment  process  for  administrative  court 
presidents12.  The  Consultative  Council  of  Judges  of  the  Council  of  Europe  adopted  an 
opinion13 on the appointment and status of the president of the regional administrative court 
of  Vienna,  which  raised  concerns  over 
the  compliance  with  Council  of  Europe 
recommendations14  in  view  of  the  difference  between  the  process  of  appointing  the 
president/vice-president and other judges.15 These concerns have been echoed by European16 
and  national  stakeholders17,  who  request  that  staff  panels  be  involved  in  all  judicial 
appointments  and  that  their  opinions  be  made  binding.18  GRECO  has  addressed  several 
recommendations to Austria regarding the administrative court system, including to enhance 
the  role  of  staff  panels  in  appointments  and  to  align  standards  for  judicial  recruitment 
between ordinary and administrative courts.19 While the 2020-2024 Government programme 
announces general intentions to align recruitment standards in this respect, no concrete plans 
have been announced at this stage.20   

The right of the Minister of Justice to instruct prosecutors in individual cases is under 
discussion.  In  2019,  a  number  of  stakeholders  have  reiterated  their  calls  for  a  more 
independent  prosecution  service.21  Under  the  Austrian  system,  both  senior  prosecution 

9  These requirements are to have completed legal studies and five years professional legal experience. While 
administrative judges are appointed according to the same procedure as ordinary court judges, administrative 
court presidents and vice-presidents are excluded from these rules; Art. 134, para. 2-4 of the Constitution.  
10   Two  representatives  of  the  executive,  two  representatives  from  academia  and  the  presidents  of  the 
constitutional  court,  the  supreme  administrative  court  and  the  supreme  court.  Law  on  the  Federal 
Administrative Court, Art. 2(2) and (3). See similarly the Law on the Finance Court, Art. 5(5).  

11   See  the  Laws  on  the  administrative  courts  of  Kärnten  Art.  2(2);  Niederösterreich  Art.  2(3);  Salzburg  Art. 
2(2); Steiermark Art. 3(3); Tirol Art. 2(4);  Wien Art. 3(2) and Constitution of Vorarlberg Art. 71a, which do 
not  specify  an  involvement  of  the  judiciary.  The  Laws  on  the  administrative  courts  of  Burgenland  (Art. 
21(3)) and Oberösterreich (Art. 18) foresee the involvement of a commission (these are different from staff 
panels and not composed by a majority of judges).  

12   Consultative  Council  of  European  Judges,  CCJE-BU(2019)3,  29  March  2019;  GRECO  Fourth  Evaluation 

Round – Compliance Report.  

13   Consultative Council of European Judges, CCJE-BU(2019)3, 29 March 2019.  
14   CCJE Opinion No. 19 (2016) on the role of court presidents, para. 38: “the procedures for the appointment 
of  presidents  of  courts  should  follow  the  same  path  as  that  for  the  selection  and  appointment  of  judges”; 
Recommendation Rec(2010)12 of the Committee of Ministers of the Council of Europe, para 46.  

15   The  CCJE  also  raised  concerns  over  the  president’s  broad  powers  and  the  possibility  for  the  executive  to 
give  instructions  to  the  president  regarding  certain  management  functions.  Only  for  two  regional 
administrative courts (Burgenland, Oberösterreich) presidents are dispensed from any instructions.  

16   Contribution from the Association of European Administrative Judges for the 2020 Rule of Law Report, pp. 

7-10. 

17   Judges’  Association  and  Union  of  Judges  and  Prosecutors,  Resources  for  the  rule  of  law,  pp.  10-11; 

Association of Administrative Judges, Agenda for the administrative judiciary 2022, pp. 3-5.   

18   Stakeholders have also raised concerns over a specific call for applications for the position of president of 

the regional administrative Court in Burgenland.   

19   GRECO Fourth Evaluation Round – Compliance Report recommendations ix-xi, pp. 6-9.  
20   The government programme (p. 23) also announces an intention to reform the appointment system of trainee 
judges (for ordinary courts) and to require a justification in case of deviation of a proposal by a staff panel, 
which are further points of criticism raised by both GRECO and national stakeholders. 

21   The Judges’ Association, Prosecutors’ Association and Union of Judges and Prosecutors, see footnote 27.  

3 

 
 
                                                 
offices22  and  the  Minister  of  Justice  can  issue  instructions  in  individual  cases,  including 
instructions not to prosecute. Instructions by the Minister of Justice must be reasoned, issued 
in writing and attached to the case file. The Government has also to provide a yearly report to 
Parliament  about  all  instructions  in  individual  cases,  once  the  respective  case  has  been 
completed.23  According  to  the  latest  report,  69  instructions  were  issued  between  2011  and 
2018.24 In addition, within the organisational structure of the General Procurator’s Office, an 
independent  advisory  council  for  the  Minister’s  Directive  (‘Council  of  Directives’ 
/‘Weisungsrat’)  provides  a  non-binding  opinion on  all  instructions  before  they  are  issued25, 
which  is  followed  in  practice.26  National  stakeholders  have  underlined  the  need  for  a  more 
independent  prosecution  service,  with  an  independent  head  of  the  prosecution  service  in 
charge of instructions27, referring to the risk of an appearance of possible political influence 
in  the  public’s  perception.  In  addition,  stakeholders  note  that  reporting  obligations  can  be 
time-consuming, disproportionate in relation to the core tasks of the prosecution and lead to 
delays  in  investigations.  While  risks  to  the  autonomy  of  the  prosecution  service  appear 
mitigated by the safeguards in place28, the power to issue instructions is nevertheless used in 
practice.  In  2019,  a  study  on  the  situation  of  the  justice  system29  by  the  then-Minister  of 
Justice included some suggestions to  clarify the system of instructions and the Government 
programme 2020-2024 includes an intention to reduce ‘avoidable’ reporting obligations. 

Quality  

The  resources  for  the  judiciary  have  been  increased.  The  2020  budget  for  the  judiciary 
includes ten additional posts for judges, 40 for prosecutors and 100 for court staff, which has 
been welcomed by stakeholders. This increase follows a study published in 2019 by the then-
Minister of Justice, which pointed to a number of concerns regarding human resources in the 
judiciary,  in  particular  as  regards  significant  reductions  in  posts  for  administrative  staff  in 
courts and prosecution offices as well as challenges to adequately fill existing posts for legal 
clerks  (‘Rechtspfleger’).  It  also  stressed  the  difficulties  for  the  prosecution services and the 
federal administrative court to cope with increased tasks linked to internal security or asylum 

22   The  Prosecution  Service  is  composed  of  regional  prosecution  offices  and  the  Central  Public  Prosecutor’s 
Office  for  Combating  Economic  Crimes  and  Corruption,  supervised  by  four  senior  prosecution  offices.  
Lower prosecution offices must submit reports to senior prosecution offices and wait on further instructions 
for certain type of cases: criminal matters which command special public interest or unresolved legal issues 
of fundamental significance. Public Prosecutor Act, Art. 8 and 8a. 

23   Public Prosecutor Act, Art. 29a. See also Figure 55, 2020 EU Justice Scoreboard.  
24   2019 report on instructions (‘Weisungsbericht’). The report contains information on the type of instruction 
(e.g.  to  start  or  close  proceedings  or  to  indict)  and  on  the  individual  cases.  To  be  noted  that  no  report  on 
instructions issued in 2019 has been published as of August 2020.  

25   The Weiunsgsrat, established in 2016, is composed of the ‘Generalprokurator’ and two additional members 
with substantial expertise in criminal law, who may not be active judges, prosecutors or lawyers. It is also 
consulted  in  criminal  matters  against  supreme  executive  organs  and  if  the  Minister  of  Justice  deems  it 
necessary in cases of special public interest. Public Prosecutor Act, Art. 29b-c.   

26   The 2019 ‘Weisungsbericht’ confirms that only in one case the majority opinion of the Weisungsrat was not 

followed.  

27   See e.g. in 2019: Judges Association and Union of Judges and Prosecutors, Resources for the Rule of Law, 
pp.  10-11;  and  Prosecutor’s  Association,  Requirements  of  the  Prosecution  Service,  p.  7.  The  question  of 
instructions has also been subject of public debate in certain high-profile investigations; see e.g. statement by 
the Association of Prosecutors on the ‘Eurofighter’ case, June 2019.  

28   Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe, para. 13(d). “where 
the government has the power to give instructions to prosecute a specific case, such instructions must carry 
with  them  adequate  guarantees  that  transparency  and  equity  are  respected  in  accordance  with  national 
law”. As regards the safeguards, see para. 13 (points d to e). 

29   Ministry of Justice, Measures for a modern and high-quality justice system, p. 5. 

4 

 
 
                                                 
cases,  respectively.30  The  report  recommended  the  creation  of  additional  posts  in  all  areas 
concerned.  These  concerns  have  been  echoed  by  stakeholders,  who  have  requested  the 
creation  of  at  least  40  additional  posts  for  judges  and  prosecutors  and  the  halting  of  the 
reduction  of  posts  for  court  staff,  highlighting  the  situation  of  the  finance  court  and  the 
federal administrative court as particularly concerning.31  

A  large-scale  project  to  further  improve  digitalisation  of  the  judiciary  is  ongoing.  The 
digitalisation  of  the  justice  system  is  already  advanced,  in  particular  as  concerns  the 
possibility  to  submit  a  case  and  summons  online,  which  are  widely  available,  although 
electronic  means  for  the  subsequent  stages  of  proceedings  online  remain  limited.  Case 
management  systems  and  systems  for  court  statistics  are  implemented  for  all  courts.32 
Through  a  project  called  ‘Justice  3.0’,  the  Government  initiated  the  introduction  of  an 
electronic case file in all courts. The system has only been introduced in a limited number of 
courts  as  of  2020,  but  is  progressively  being  rolled  out  further.  The  Government  aims  to 
implement a fully electronic management of cases in all courts by 2022. The Government has 
also  announced  further  steps  for  the  use  of  digital  tools  in  courts,  including  as  regards 
artificial intelligence for instance for publishing court decisions in an anonymised format.33  

The  court  fee  regime  will  be  subject  to  an  evaluation.  National  stakeholders34  have 
repeatedly  requested  an  overhaul  of  the  court  fee  system,  stressing  that  court  fees  have  an 
essential impact on access to justice and that, in absence of a cap on court fees, they can be 
disproportionally high. Under the current regime, court fees in civil proceedings are regulated 
in the Court Fees Act and depend mostly on the value under dispute, with no upper limit in 
many cases. While court fees in low-value cases can be relatively low to average35, they rise 
commensurate  to  the  value  of  a  case.  Council  of  Europe  studies  show  that  revenues  from 
court fees per inhabitant are particularly high.36 The Government programme for 2020-2024 
has announced the intention to carry out an evaluation of the overall system of court fees.37 

Efficiency 

The  justice  system  manages  its  caseload  in  an  efficient  manner,  but  faces  some 
challenges  for  administrative  cases.  The  justice  system  performs  well  for  civil  and 
commercial  litigious  cases,  with  a  low  estimated  average  time  to  resolve  such  cases,  a 
clearance  rate  consistently  around  100%  (100.8%  in  2018)  and  a  low  number  of  pending 
cases. The administrative court system has recently faced challenges, with higher disposition 
times and a clearance rate of 89.7% in 2018 (although this is  an improvement compared to 
2017, when it was at 79.5%).38 According to authorities and stakeholders, this is in particular 
linked  to  a  high  number  of  incoming  asylum  cases.  The  Federal  Administrative  Court  is 
facing particular challenges, as also raised in the 2019 study by the Ministry of Justice. Most 

30   Ministry of Justice, Measures for a modern and high-quality justice system, pp. 15-18.  
31   Judges Association and Union of Judges and Prosecutors, Resources for the Rule of Law, pp. 5-7.  
32   Figures 27 and 40, 2020 EU Justice Scoreboard.   
33   Government programme 2020-2024, p. 25. The project was first launched in 2016.  
34   See  e.g.  contribution  from  the  Federal  Bar  Association  for  the  2020  Rule  of  Law  Report,  p.  9;  Judges 

Association and Union of Judges and Prosecutors, Resources for the Rule of Law, p. 13.  

35   See also Figures 24 and 25, 2020 EU Justice Scoreboard, for an illustration of this.  
36   CEPEJ  (2018),  European  judicial  systems  –  Efficiency  and  quality  of  justice,  pp.  65-69.  To be  noted  that 
courts  also  charge  fees  for  the  services  provided  by  their  automated  registers  (mainly  land  and  business 
registers).  

37   Government programme 2020-2024, p. 22.  
38   Figures 5-15, 2020 EU Justice Scoreboard.  

5 

 
 
                                                 
activity  of  courts  was  temporarily  suspended  from  16  March  to  13  April  2020  due  to  the 
COVID-19  pandemic,  with  specific  measures  adopted  to  postpone  procedural  deadlines, 
which could lead to increased backlogs in the justice system.39  

II.  ANTI-CORRUPTION FRAMEWORK  

A  National  Anticorruption  Strategy  was  adopted  in  2018  and  is  accompanied  by  an  Action 
Plan adopted in 2019. The competences to prevent, detect and fight corruption in Austria are 
shared  among  different  authorities.  The  Federal  Bureau  of  Anti-Corruption  (Bundesamt  für 
Korruptionsprävention  und  -bekämpfung  –  BAK)  is  tasked  with  the  prevention  of  and  the 
fight  against  corruption,  including  related  international  cooperation.  The  prosecution  of 
corruption  is  the  competence  of  the  Central  Public  Prosecutor’s  Office  for  Combating 
Economic  Crimes  and  Corruption  (Zentrale  Staatsanwaltschaft  zur  Verfolgung  von 
Wirtschaftsstrafsachen  und  Korruption  –  WKStA).  Other  authorities  with  anti-corruption 
competences  are  the  Ministry  of  Justice,  the  Ministry  of  Interior  and  the  Court  of  Audit. 
Prevention  of  corruption  is  broadly  regulated  for  civil  servants,  who  are  subject  to  rules 
contained  in  the  Civil  Servants  Employment  Act  1979  and  the  Act  on  Contractual  Public 
Employees. Whistle-blower protection has been in place since 2013.  

In  the  2019  Corruption  Perceptions  Index  of  Transparency  International,  Austria 
scores 77/100, and ranks 6th in the European Union and 12th globally.40 Amongst Austrian 
respondents,  58%  perceive  corruption  as  widespread  in  the  country  (EU  average  71%)41, 
while 22% of people consider that corruption affect their daily lives (EU average 26%). As 
regards  businesses,  57%  of  companies  perceive  corruption  as  widespread  (EU  average 
63%)42 and 29% companies perceive corruption a problem when doing business (EU average 
37%). Finally, 53% of people consider that there are  enough successful prosecutions in  the 
country to deter people from corrupt practices and 34% companies perceive that people and 
businesses caught for bribing a senior official are appropriately punished (EU average 31%).  

The  criminal  anti-corruption  legislative  framework  is  broadly  in  place.  The  legal 
framework  includes  relevant  provisions  in  the  Criminal  Code  and  the  Code  of  Criminal 
Procedure and includes specific legislation such as the Federal Act on the Establishment and 
Organization of the Federal Bureau of Anti-Corruption, the Federal Statute on Responsibility 
of Entities for Criminal Offences and the Federal Act on Extradition and Mutual Assistance 
in Criminal Matters. 

Anticorruption policies are set at the federal level. The National Anticorruption Strategy, 
which  has  been  adopted  in  2018,  is  mainstreamed  throughout  the  public  sectors.  The  main 
objective  of  the  National  Anti-Corruption  Strategy  is  to  increase  and  ensure  integrity  and 
transparency in administration, politics and business. The Action Plan for the implementation 
of the Strategy has been adopted in 2019. 

The  fight  against  corruption  is  shared  between  several  authorities  with  specific 
competences. The Federal Bureau of Anti-Corruption (Bundesamt für Korruptionsprävention 
und  -bekämpfung  –  BAK)  was  established  in  2010  and  had  its  remit  last  extended  in  2019. 
The BAK has jurisdiction in security and criminal police matters concerning certain criminal 

39   1. und 2. COVID-Justizbegleitgesetz.   
40   Transparency International (2020), 2019 Corruption Perceptions Index. 
41   Special Eurobarometer 502 (2020). 
42   Flash Eurobarometer 482 (2019). 

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offences  related  to  corruption,  including  as  regards  the  misuse  of  funds  and  assets  to  the 
detriment  of  the  financial  interests  of  the  European  Union  and  money  laundering  crimes.43 
One of the goals of the BAK includes cooperation with the Central Public Prosecutor’s Office 
for Combating Economic Crimes and Corruption.  

The Central Prosecutor’s Office for Combating Economic Crimes and Corruption is the 
main  authority  competent  to  fight  corruption.  The  Public  Prosecutor  for  Economic  and 
Corruption  Crimes  (Zentrale  Staatsanwaltschaft  zur  Verfolgung  von  Wirtschaftsstrafsachen 
und Korruption – WKStA) has a special remit for financial, economic and corruption crimes. 
Following  recent  high-profile  political  scandals44, 
its 
investigations into high-level political corruption, alleged misconduct regarding state-owned 
enterprises,  and  illegal  party  financing.  The  Federal  Bureau  of  Anti-Corruption  carries  out 
police  investigations  and  provides  support  to  the  WKStA  to  investigate  criminal  offences 
related to corruption. As other parts of the judiciary, the WKStA is also facing challenges in 
terms of resources.45 The WKStA prosecutors have to report to the Senior Public Prosecutor’s 
Office three working days in advance before initiating certain procedural steps, a reinforced 
obligation  that  was  introduced  in  2019.  These  reporting  obligations  can,  according  to 
stakeholders46, be potentially burdensome and lead to delays in investigations, also in view of 
the  power  of  instruction  of  the  Senior  Prosecutor’s  office  and  the  Minister  of  Justice  (see 
section I).  

the  WKStA  has 

intensified 

The  rules  on  political  party  financing,  including  the  role  of  the  Court  of  Audit,  are 
undergoing  reforms.  The  Court  of  Audit  has  auditing  competences  and  is  responsible  for 
monitoring party finances. In 2018, the department of Anti-corruption, Compliance and Risk 
management  was  established  within  the  Court  of  Audit  and  since  then  has  been  driving  a 
multi-faceted initiative against corruption with a special focus on corruption prevention. The 
Court  of  Audit  has  been  auditing  anti-corruption  frameworks  at  different  levels,  e.g.  for 
ministries  or  municipalities,  since  2015,  in  accordance  with  the  ‘Guidelines  for  Auditing 
Corruption  Prevention  Systems’.  Furthermore,  the  Court  is  trying  to  raise  awareness  on 
corruption issues and start training courses for public officials. The role of the Court of Audit 
has  been  slightly  strengthened  in  201947.  However,  the  Court  can  still  only  verify  the 
numerical  accuracy  of  the  accountability  reports  of  the  political  parties  as  such  and  has  no 
further  investigative  powers.  This  limitation  in  the  Court  of  Audit’s  powers  has  been 
criticised  by  stakeholders.48  It  is  also  the  subject  of  long-standing  recommendations  by 
GRECO which remain only partly implemented49. In September 2019, legislative proposals 
were submitted in order to introduce criminal offences for false annual reports of the parties 
and  for  illegal  party  financing,  which  await  discussions50.  The  Government  programme  for 

43   Input from Austria for the 2020 Rule of Law Report, pp. 25-26. 
44   In  particular  the  so-called  Ibiza  affair  triggered  the  fall  of  the  past  government  and  snap  elections  in 

September 2019, which were followed by the undertaking of institutional reforms. 

45   Information received in the context of the country visit and position paper by the Judges’ Association and 

Union of Judges and Prosecutors, Resources for the Rule of Law.  

46   Information  received  in  the  context  of  the  country  visit  and  public  statements  by  the  WKStA,  e.g.:  Die 

Presse, Reporting obligation for corruption investigators is a flagrant contradiction.  

47   Input from Austria for the 2020 Rule of Law Report, pp. 26, 27. 
48   Transparency  International  Austria  statement  at  the  publication  of  the  Corruption  Perceptions  Index  (CPI 

2019). 

49   GRECO Third Evaluation Round – Second Compliance Report, recommendations v, ix-xi, pp. 5, 9-12.  
50   Austrian  Parliament,  Neu  im  Verfassungsausschuss:  Proposals  by  NEOS  to  amend  the  party  law,  to  stop 

trading of political posts and to recognise badges of honour.  

7 

 
 
 
                                                 
2020-2024 includes a number of commitments for further strengthening the role of the Court 
of Audit, including as regards political party financing.51 

Gaps remain in the framework ensuring the integrity of members of Parliament.   Only 
certain aspects of asset disclosure and secondary employment are regulated for members of 
Parliament.  While  disclosure  of  private  incomes  is  regulated  under  the  Federal  Act  on 
Transparency  and  Incompatibilities  (Unvereinbarkeits-  und  Transparenz-Gesetz)52,  there  is 
no obligation to disclose assets, interests, debts and liabilities53. There is also no requirement 
to  disclose  ad  hoc  conflicts  of  interests  which  may  emerge  in  relation  to  a  matter  under 
consideration  in  Parliament.  Members  of  Parliament  are  not  prohibited  from  having 
secondary  employment  or  on  holding  managerial/board  positions.  The  regulation  of 
declarations  of  income  and  side  activities,  acceptance  of  gifts  and  other  advantages  and 
measures to be taken in case of infringements of the mentioned rules, have been the subject 
of a number of GRECO recommendations54. 

A  number  of  measures  for  preventing  corruption  for  civil  servants  and  top  executive 
functions  are  in  place.  The  preventive  anti-corruption  framework  in  the  public  sector 
integrates  rules  governing  the  prevention  of  conflicts  of  interest  for  the  highest  executive 
bodies,55  as  foreseen  in  the  Federal  Act  on  Transparency  and  Incompatibilities.56  The 
provisions include rules on the declaration of financial interests and assets every two  years, 
secondary  employment  (unless  specifically  authorised)  and  holding  of  managerial/board 
positions. The Court of Audit has also carried out a risk assessment of secondary employment 
of civil servants and found that the assessment of the admissibility of secondary employment 
was primarily the responsibility of the staff themselves and that a lack of clarity on what the 
clear  responsibilities  would  be  (criteria  by  which  the  secondary  employment  is  assessed  as 
compatible or not with one official’s position) could lead to a conflict of interest. According 
to  the  Court  of  Audit,  a  general  obligation  to  get  approval  beforehand  instead  of  only 
declaring  secondary  employment  upfront  would  be  more  effective  than  a  requirement  to 
impose  disciplinary  sanctions  ex-post.  The  Court  therefore  recommended  to  the  Federal 
Chancellery  to  prepare  a  proposal  for  legislation  that  would  provide  for  a  requirement  of 
approval  from  the  service  authority  for  the  exercise  of  certain  secondary  occupations.  The 
Federal  Chancellery  considered  that  sufficient  training  and  awareness  measures  for  civil 
servants  on  this  issue  are  in  place.57  Prevention  of  corruption  is  also  broadly  regulated  for 
civil servants, who are subject to rules contained in the Civil Servants Employment Act 1979 
and the Act on Contractual Public Employees. These legal provisions are complemented by a 
general  code  of  conduct  for  civil  servants  and,  where  applicable,  by  standards  of  conduct, 

51   Government programme 2020-2024, p. 21.  
52   §  6  (2)  Bundesgesetz  über  die  Transparenz  und  Unvereinbarkeiten  für  oberste  Organe  und  sonstige 

öffentliche Funktionäre (Unvereinbarkeits- und Transparenz-Gesetz (Unv-Transparenz-G). 

53   Breitschopf  M.,  Fünf  Jahre  „Transparenzpaket  -  Eine  kritische  Bilanz  aus  zivilgesellschaftlicher 
in:  Meine  Abgeordneten,  Forum 

(Five  years  Transparency  Package),  p.  16f, 

Perspektive, 
Informationsfreiheit, Dossier.  

54   GRECO Fourth Evaluation Round – Compliance Report, pp. 4-6.  
55   These  include  the  Federal  President,  the  Federal  Ministers,  the  State  Secretaries,  members  of  the  state 
Government,  all  mayors  and  their  deputies,  the  members  of  the  city  senate,  members  of  the  National 
Council, the Federal Council and State parliaments. 

56   §  6  (2)  Bundesgesetz  über  die  Transparenz  und  Unvereinbarkeiten  für  oberste  Organe  und  sonstige 

öffentliche Funktionäre (Unvereinbarkeits- und Transparenz-Gesetz (Unv-Transparenz-G).  

57   Court  of  Audit,  Bericht  des  Rechnungshofes.  Korruptionspräventionssysteme 

in  ausgewählten 
Bundesministerien (BKA, BMB, BMI, BMLFUW), 2017/8 section 13.2  13.3. To be noted that the Federal 
Ministry for Arts, Culture, the Civil Service and Sport (BMKÖS) is now competent for this matter. 

8 

 
 
                                                 
which  may  be  adopted  by  specific  services  (e.g.  the  compliance  guidelines  [“Compliance-
Leitlinien”]  of  the  Federal  Ministry  of  Justice  adopted  in  2019).58  In  general,  civil  servants 
are  subject  to  certain  additional  duties  and  rules  such  as  their  oath  of  office,  reporting 
obligations,  the  respectful  treatment  of  others,  conflict-of-interest  rules,  rules  on  secondary 
occupations, the prohibition of the acceptance of gifts as well as, rules on the termination of 
employment  (“post  public  employment”)  and  the  duty  of  professional  secrecy.  Breaches  of 
these  and  other  duties  and  rules  are  sanctioned  by  disciplinary  measures  or  under  criminal 
law provisions. 

Post-employment  for  members  of  Government  and  Parliament  is  not  regulated. 
Legislative  proposals  to  introduce  a  cooling-off  period  of  18  months  were  tabled  in  2019. 
According to these proposals, anyone who has worked for or held a position in a government 
party in  the past  5  years could  only be  appointed to  a management or control function in  a 
government-related company after this cooling-off period.59 The government programme for 
2020-24  includes  plans  to  introduce  a  cooling-off  period  for  members  of  Government  to 
become members of the Constitutional Court.60  

In-House-Lobbyists, 

Self-Governing  Bodies 

A  lobbying  register  exists,  but  only  limited  information  is  publically  available.  The 
Lobbying  and  Advocacy  Register  was  created  in  201361.  However,  information  concerning 
concrete  lobbying  activities  (especially  lobbying  contracts)  is  available  by  law  only  to 
decision-makers  who  have  been  lobbied,  not  to  the  public62.  Only  Specialist  Lobbying 
Companies, 
groups 
(‘Interessenverbände’) have to register and single contacts do not have to be reported63. The 
Act  on  Incompatibilities  and  Transparency  and  the  Act  on  Transparency  of  Lobbying  and 
Interest  Representation  contain  provisions  on  lobbying  addressed  to  elected  officials  and 
persons entrusted with top executive functions. Section 1(3) of the Lobbying and Advocacy 
Transparency  Act  states  that  it  does  not  apply  to  political  parties.  GRECO  issued  a 
recommendation  on  members  of  Parliament  and  their  contacts  with  third  parties  in  2016, 
since there are no restrictions nor prohibitions for members of Parliament on the manner in 
which  they  may  have  contacts  with  third  parties  who  may  try  to  influence  their  decisions. 
Currently,  the  only  rules  in  place  concern  situations  where  members  of  Parliament  act 
themselves as lobbyists.64 

interest 

and 

A framework for whistleblower protection is in place. A whistle-blower tool was adopted 
in 2013 and is operated by the Central Public Prosecutor’s Office for Combating Economic 
Crimes and Corruption (WKStA). Within the first four years of operation (20 March 2013 to 
31 March 2017) the WKStA received almost 5.000 valid reports of suspicious circumstances 
and potential criminal offences. In 29 cases this led to charges.65 

58   Input from Austria for the 2020 Rule of Law Report, p. 31. 
59   Austrian Parliament, Postenschacher stoppen (1000/A(E)).   
60   Government programme 2020-24, p. 11.  
61   Available at http://www.lobbyreg.justiz.gv.at. 
62   Ministry of Justice, Important Notices concerning the Lobbying and Advocacy Register. 
63   Lobbying and Interest  Representation  Transparency  Act (Lobbying- und Interessenvertretungstransparenz-
see  also  Austrian  Court  of  Audit,  Bericht  des  Rechnungshofes,  Lobbying-  und 

Gesetz), 
Interessenvertretungs-Register, Reihe BUND 2019/45 

64   GRECO Fourth Evaluation Round – Compliance Report - recommendations ii to viii.  
65   Austrian Parliament, 12165/AB XXV.GP – Anfragebeantwortung, 2 June 2017.  

9 

 
 
 
 
                                                 
III.  MEDIA PLURALISM 

Freedom  of  expression  and  the  duty,  incumbent  on  state  authorities,  to  grant  access 
information are enshrined in the Constitution. Secondary legislation expressly guarantees the 
right of journalists to protect the confidentiality of their sources66 and regulates the obligation 
to  disclose  information  to  the  public.67  The  regulators  for  audiovisual  media  services,  the 
Austrian Communications Authority (KommAustria) and the Austrian Regulatory Authority 
for Broadcasting and Telecommunications (RTR), were set up under the  KommAustria Act 
in 2001.68   

The media regulatory authorities function in an independent manner. The regulators for 
audiovisual media services, the Austrian Communications Authority (KommAustria) and the 
Austrian  Regulatory  Authority  for  Broadcasting  and  Telecommunications  (RTR),  are  fully 
independent  from  the  Government.  KommAustria  is  responsible  for  issuing  licenses  to 
private  television  and  radio  stations, managing  broadcasting  frequencies,  handling  the  legal 
supervision of private broadcasters, as well as preparing and launching digital broadcasting. 
KommAustria is further in charge of administering the Journalism Subsidies Act (1984), and 
monitoring  compliance  with  the  legal  framework  of  broadcasting  regulation  encompassing 
both broadcasts of the Austrian Broadcasting Corporation (ORF) and private broadcasters.69 
As  enshrined  in  the  Federal  Act  on  the  establishment  of  an  Austrian  Communications 
Authority, its members are independent and not bound by any instructions in exercising their 
functions.70 KommAustria’s decisions may be challenged before the administrative courts. As 
regards  resources  (such  as  the  expenses  for  salaries,  office  rent  and  equipment  of 
KommAustria and the supporting media division of the RTR), KommAustria’s annual budget 
was  EUR  4,146  million  in  2018,  which  it  deemed  to  be  adequate.71  The  indicator  on 
independence and effectiveness of the media authority is considered as being at very low risk 
by the Media Pluralism Monitor (MPM) 2020.72 

The  Austrian  Press  Council  (Österreichischer  Presserat)73  operates  as  a  self-regulatory 
facility for  the  press.  It  strives  to  ensure  editorial  quality  and  to  guarantee  freedom  of  the 
press.  The  Press  Council  drew  up  a  Code  of  Conduct  for  the  Austrian  press  (principles  for 
journalistic work), which contains rules for good and responsible journalistic activity and is 
an ethical guideline for media professionals. One of the main tasks of the Press Council is to 
highlight grievances in the press and to counteract them. The Press Council’s sponsors are the 
most  important  journalists’  and  publishers'  associations.  MPM  2020  refers  to  the  fact  that 
organisations  such as the Press  Council have, to  date, “paid  too  little attention to  the status 
and  independence  of  freelancers  and  the  growing  number  of  manifold  peripheral  actors  in 
journalism (such as citizen journalists, bloggers, social media activists, etc.)”.74 

Media  ownership  is  subject  to  transparency  rules,  but  information  is  not  always  fully 
available  in  practice.  Austrian  law  contains  specific  provisions  requiring  the  disclosure  of 

66   Federal Act on the Press and other Publication Media (Media Act – MedienG).   
67   Fundamental Act on the duty to grant Information (Auskunftspflichts-Grundsatzgesetz). 
68  Austria fell a further two positions in the  Reporters Without Borders World Press Freedom Index between 

2019 and 2020, now registering at 18th place worldwide. Reporters without Borders, Austria.   

69   KommAustria: https://www.rtr.at/en/rtr/OrganeKommAustria. 
70  Federal Act on the establishment of an Austrian Communications Authority (KommAustria Act – KOG).  
71   Input from Austria for the 2020 Rule of Law Report.  
72   Media Pluralism Monitor 2020, p. 10 
73  Available at https://www.presserat.at. 
74  Media Pluralism Monitor 2020, Report on Austria, p.10.  

10 

 
 
                                                 
ownership  in  the  news  media  sector.75  The  media  owner  must  be  specified  by  name  or 
company name, including the purpose of the company, residential address or registered office 
(branch office), the names of the executive bodies and officers of the media owner authorized 
to  represent  the company  and, if there is  a supervisory board, its members.  In  addition,  the 
ownership, shareholding, share and voting rights proportions must be stated with regard to all 
persons holding a direct or indirect share in the media owner. In the case of direct or indirect 
shareholdings  of  foundations,  the  founder  and  the  relevant  beneficiaries  of  the  foundation 
must be disclosed.76 MPM 2020 states that that the relevant legal provision does not reveal 
that the media proprietor is also a shareholder in other companies if they are not exclusively 
owned by them.77  

Austria  allocates  high  levels  of  state  advertising  to  media  companies.  The  allocation  of 
state  advertising  is  regulated  by  the  Federal  Constitutional  Act  on  Media  Cooperation  and 
Media Funding, as well as by the Transparency in Media Cooperation and Funding Act. The 
name of the recipient of the subsidies and the amount of the subsidies must be disclosed, and 
the  Court  of  Audit  keeps  records  of  it.  According  to  the  MPM  2020,  the  indicator  on  state 
regulation  of  resources  and  support  to  the  media  sector  shows  a  medium  risk  to  media 
pluralism.  The  rules  for  the  distribution  of  direct  and  indirect  subsidies  are  transparent. 
However,  according  to  MPM  2020,  high-circulation  tabloid  newspapers  seem  to  benefit 
disproportionately  from  the  funding.  Stakeholders  have  also  raised  concerns  over  potential 
political  influence  in  the  allocation  of  state  advertising.78  This  issue  has  been  the  topic  of 
investigative  reports  by  journalists.79  The  2012  Media  Transparency  Law  ensures  that  the 
Government,  public  bodies  and  state-owned  corporations  disclose  their  relations  with  the 
media (such as advertising and other kinds of support); however there are no rules ensuring a 
fair distribution of state advertising  among media outlets.  While in  2018 state subsidies for 
the  media  amounted  to  EUR 40  million,  nearly  EUR 170  million  were  spent  on  state 
advertising.80 

The  Government  is  reflecting  on  a  reform  to  improve  access  to  information.  While  a 
duty to grant information is enshrined in the Constitution and specified in federal law81 and 
provincial  laws,  a  general  right  to  access  documents  by  public  authorities  does  not  exist  in 
Austria,  and  the  duty  of  secrecy  as  established  in  the  Constitution  and  the  Civil  Servants 
Employment  Act  1979  limits  access  to  information  in  practice.82  Stakeholders  have  raised 
concerns  over  this  system  and  the  long  time  limits  for  public  bodies  to  formally  reply  to 

75   §25 Disclosure, Media Act.  
76   If the media owner is an association or an association holds a direct or indirect share in the media owner, the 
management board and the purpose of the association must be stated in respect of such association. Persons 
holding a direct or indirect share, trust makers, founders and beneficiaries of a foundation are obliged, upon 
request by the media owner, to communicate to the media owner the details required for the media owner to 
comply  with  his/her/its  disclosure  obligation.  In  this  context,  the  revised  AVMSD  encourages  Member 
States  to  adopt  legislative  measures  providing  that  media  service  providers  under  their  jurisdiction  make 
accessible information concerning their ownership structure, including the beneficial owners. (Article 5). 
77   Berka,  W.,  Heindl,  L.,  Höhne,  T.  and  Koukal  A.  (2019).  Mediengesetz  Praxiskommentar.  4th  ed.  Wien: 
LexisNexis. Bertelsmann Stiftung (2019). Sustainable Governance Indicators (SGI)—Austria. Gütersloh.  

78   Information received in the context of the country visit. 
79   E.g. reporting by dossier.at.  
80   Media Pluralism Monitor 2020, p. 14. This including spending by numerous decentralised state entities and 

public enterprises, such as advertising for tourism, traffic security, health campaigns etc. 

81   Austrian Constitutional Law, art. 20 para. 4 B-VG, in the Fundamental Act on the duty to grant Information 

(Auskunftspflicht-Grundsatzgesetz). 

82   Austrian Constitutional Law, art. 20 para. 3 B-VG and Sec. 43 Beamten-Dienstrechtsgesetz, 1979.  

11 

 
 
                                                 
requests  (after  six  months,  with  an  informal  reply  after  eight  weeks).83  The  particular 
importance of the media’s right of access to information as “Public Watchdogs” in relation to 
the  right  of  public  authorities  to  secrecy  is  supported  in  case  law  of  the  Supreme 
Administrative  Court84.  The  Government  has  announced  plans  to  introduce  a  new  right  to 
information,  enforceable  before  courts,  through  both  a  constitutional  amendment  and  the 
adoption of a freedom of access to information act.85 

There  is  no  specific  framework  for  journalists’  protection.  The  authorities  indicate  that 
there  is  no  specific  provision  in  the  law  concerning  the  safety  of  journalists  and  that 
journalists are protected as any other citizen under the criminal code. Imprisonment is among 
the envisaged sanctions for defamation.86 There have been no cases of attacks on the physical 
safety  of  journalists,  but  offensive  and  threatening  speech  –  especially  against  female 
journalists  and  journalists  working  at  the  Public  Service  Broadcaster  ORF  –  has  been 
increasing.87 In 2019 and 2020, the Council of Europe’s Platform to promote the protection of 
journalism  and  the  safety  of  journalists  published  three  alerts  concerning  Austria,  one  of 
which has since been resolved.88  

information  obtained 

Stakeholders  raised  concerns  over  safeguards  for  editorial  independence89.  The 
“protection of  editorial confidentiality”  (Redaktionsgeheimnis) is  stipulated in  section 31 of 
the Media Act.90 This provision foresees that journalists have the right to refuse testimony in 
criminal  proceedings  on 
the 
independence  of  journalists  in  the  public  broadcasting  service,  the  ORF,  is  guaranteed 
through  the  Federal  Act  on  the  Austrian  Broadcasting  Corporation91  and  a  number  of 
decisions underline the effective remedies to protect the independence of ORF journalists.92 
Nevertheless, MPM 2020 has reported a high risk as regards regulatory safeguards ensuring 
editorial independence. Whereas TV and radio stations are obliged to have editorial statutes, 
regulatory safeguards to prevent political influence over the appointments and dismissals of 
editors-in-chief  in  news  media  are  not  foreseen.  The  two  largest  newspapers  (“Kronen 
Zeitung”  and  “Heute”)  refrain  from  self-regulatory  measures  and  are  not  members  of  the 
Austrian Press Council.93 

their  profession.  Moreover, 

in 

83   E.g. Contribution from the Forum Informationsfreiheit for the 2020 Rule of Law Report.  
84   Decision VwGH Ra 2017/03/0083.  
85   Input from Austria for the 2020 Rule of Law Report; Government programme 2020-2024, p. 49. 
86  Center for Media Pluralism and Media Freedom, Decriminalisation of Defamation.  
87   Index on Censorship. Demonising the Media: Threats to Journalists in Europe. In this context, it should also 
be recalled that, in line with European standards, set out by the Council of Europe Recommendation 2016/4, 
“Member States should put in place a comprehensive legislative framework that enables journalists and other 
media actors to contribute to public debate effectively and without fear”. 

88   Council of Europe, Platform to promote the protection of journalism and safety of journalists.  
89   Information received in the context of the country visit. 
90   Media Act (Mediengesetz). 
91   Federal Act on the Austrian Broadcasting Corporation (Bundesgesetz über den Österreichischen Rundfunk, 
ORF-Gesetz), Federal Law Gazette No. 379/1984, as amended by: Federal Law Gazette I No. 115/2017, date 
of the translated version: 1 August 2017. 

92   See  for  instance,  Constitutional  Court  14.03.2013,  VfSlg.  19742;  and  Supreme  Administrative  Court 

22.05.2013, 2012/03/0144. 

93   Media Pluralism Monitor 2020, p. 13 

12 

 
 
 
 
                                                 
IV.  OTHER INSTITUTIONAL ISSUES RELATED TO CHECKS AND BALANCES 

Austria is a federal state with a bicameral parliamentary system of government, composed of 
the  National  Council  (‘Nationalrat’)  and  the  Federal  Council  (‘Bundesrat’).  Legislative 
proposals can be submitted by the Government, by members of both chambers of parliament 
or  by  way  of  popular  initiative.94  The  Constitutional  Court  carries  out  an  ex-post 
constitutionality review of laws, which is possible both in concrete cases95 and as an abstract 
review of a law, based on appeals by the federal or a regional Government or by a third of the 
members  of  either  parliamentary  chamber.  Several  different  Ombudsman  authorities 
contribute to upholding fundamental rights.  

The  process  for  enacting  laws  regularly  involves  the  consultation  of  stakeholders,  but 
there is no formal framework for such consultations. Austria has put in place an advanced 
system  of  regulatory  impact  assessments,  for  both  ex-ante  and  ex-post  evaluation  of 
legislation.96 Legislative proposals by the Government are, as a general practice, submitted to 
a  public  consultation  published  on  Parliament’s  website,  in  which  a  number  of  key 
stakeholders  are  explicitly  invited  to  contribute.  The  National  Council  has  adopted  a 
resolution aiming at making the consultation process more accessible to the general public.97 
However, no specific legal framework requiring a consultation exists and stakeholders report 
that  consultation  deadlines  are  often  shorter  than  the  six  weeks  recommended  by  the 
Government,  or  that  the  consultation  process  is  sometimes  skipped  entirely.98  GRECO  has 
recommended that Austria adopt clear rules for consultations on legislative proposals by both 
Parliament and the Government, with appropriate timeframes.99 

The  Constitutional  Court  is  reviewing  measures  related  to  the  COVID-19  pandemic. 
Measures  related  to  the  COVID-19  pandemic  were  adopted  in  particular  through  two 
dedicated laws adopted in an expedited procedure, granting the power to adopt decrees to the 
Minister  of  Health.100  By  July  2020,  68  complaints  related  to  these  measures  had  been 
submitted  to  the  Constitutional  Court.  In  July  2020,  the  Court  ruled  that the  legal  basis  for 
entry prohibitions to businesses, work places and other places was constitutional, but found 
specific  decrees  imposing  a  general  entry  ban  to  public  places  and  authorising  a  partial  re-
opening  of  only  certain  shops  to  be  unlawful.101  Several  other  cases  have  been  ruled 
inadmissible  by  the  Constitutional  Court,  inter  alia  on  the  ground  that  access  to  judicial 
review through the administrative courts is available, with a number of cases still pending.102 

Several  different  Ombudsman  authorities  contribute  to  upholding  fundamental  rights 
in  different  areas.  The  Ombudsman  Board  functions  as  the  National  Human  Rights 

94   Input from Austria for the 2020 Rule of Law Report, p. 50.  
95   The  review  can  take  place  ex-officio  (‘amtswegige  Prüfung’)  or  on  submission  of  another  court 
(‘Gerichtsantrag’), an individual (‘Individualantrag’) or a party to a case pending before an ordinary court 
of first instance (‘Parteienantrag auf Normenkontrolle’).  

96   OECD (2020), Regulatory Impact Assessment and Regulatory Oversight in Austria.   
97   2017 Committee report AB 1622 d. B., XXV. GP.  
98   According to the 2019 Annual Report by the  Federal Bar Association, the consultation  period was  shorter 
than six weeks in 66% of consultations in 2019. Similar concerns are raised in the contribution from Forum 
Informationsfreiheit for the 2020 Rule of Law Report, p. 13. This concern has been also highlighted in the 
context of the adoption of legislation related to the COVID-19 pandemic.  

99   GRECO  Fourth  Evaluation  Round  –  Compliance  Report,  recommendation  i,  which  is  considered  to  be 

partially implemented. GRECO stressed a need for broader measures in the Compliance Report (p.4). 

100  First and second COVID-19 law of 15 and 21 March 2020.   
101  Constitutional Court, COVID-19 law is constitutional, several decrees are not.  
102  Constitutional Court, Constitutional Court will convene again mid-July. 

13 

 
 
                                                 
Institution  and  was  last  re-accredited  with  B-Status  by  Global  Alliance  of  National  Human 
Rights  Institutions  (GANHRI)  in  2011.  The  GANHRI  Sub-Committee  for  Accreditation 
(SCA)  encouraged  the  Ombudsman  Board  to  seek  a  broader  human  rights  mandate  and  to 
develop regular and systematic working relationships with civil society. Both the SCA and, in 
2019,  the  UN  Committee  on  the  elimination  of  all  forms  of  discrimination  against  women 
have underlined the importance of a clear, transparent and participatory selection process.103 
The  Ombudsman  Board  deals  with  citizens’  complaints  about  inactivity  or  allegations  of 
gross  negligence  of  administrative  bodies.  It  has  also  taken  on  a  role  in  monitoring 
administrative decisions in the context of the COVID-19 pandemic, having received around 
280  complaints  as  of  May  2020.104  Several  other  independent  authorities,  such  as  the 
Ombudsperson  for  Equal  Treatment,  which  is  the  national  equality  body,  the  Disability 
Ombudsman,  and  the  Ombudsperson  for  Children  and  Youth  contribute  to  upholding 
fundamental rights.  

The Government intends to further develop dialogue with civil society. The Government 
programme  for  2020-2024  has  announced  a  number  of  measures  to  support  civil  society 
engagement further105. The Government has in particular committed itself to active dialogue 
and respectful engagement with civil society organisations. As regards the legal framework, 
tax exempt status for donations does not apply to all civil society actors equally. In particular, 
a  number  of  NGOs  in  areas  of  human  rights,  civil  and  political  rights,  democracy, 
transparency or adult education do not benefit from it106, which has been raised as a concern 
by stakeholders.107 

103  The three members of the Ombudsman Board are elected for a six-year term by the National Council, with 
each of the three biggest political parties proposing a candidate, Art. 148 g of the Constitution. See CEDAW, 
Concluding observations on the ninth periodic report, p. 4.  

104  Fundamental Rights Agency, Coronavirus pandemic in the EU – fundamental rights implications – Bulletin 

3 (3 June 2020). Country: Austria, p. 2.  

105  Government  programme  2020-2024,  p.  15.  As  regards  Austria’s  rating  by  CIVICUS,  it  is  currently  under 

review (i.e. process for reappraisal of the rating).  

106  Para. 4a of the Income Tax Law for the list of organisations benefiting from tax exemption.   
107  Contribution  by  Forum  Informationsfreiheit 

the  stakeholder  consultation,  p.  15.  See  also 

to 

Interessenvertretung gemeinnütziger Vereine (IGO), Civil Society Index 2019, p. 45.  

14 

 
 
                                                 
Annex I: List of sources in alphabetical order* 

* The list of contributions received in the context of the consultation for the 2020 Rule of Law report 
can be found at (COM website). 

Association of Administrative Judges, Agenda for the administrative judiciary 2022.   

Association  of  European  Administrative  Judges  (2020),  Contribution  from  the  Association  of 

European Administrative Judges for the 2020 Rule of Law Report.   

Austrian Government (2020), Input from Austria for the 2020 Rule of Law Report.  

Austrian Government (2020), Out of a Sense of Responsibility for Austria. Government programme 

2020-2024. 

Austrian  Parliament 

(2 

June  2017), 

‘12165/AB  XXV.GP 

–  Anfragebeantwortung’. 

https://www.parlament.gv.at/PAKT/VHG/XXV/AB/AB_12165/imfname_638955.pdf.  

Austrian 

Parliament, 

Neu 

im 

Verfassungsausschuss. 

https://www.parlament.gv.at/PAKT/PR/JAHR_2019/PK0964/index.shtml.  

Austrian 

Parliament, 

Postenschacher 

stoppen 

(1000/A(E)). 

https://www.parlament.gv.at/PAKT/VHG/XXVI/A/A_01000/index.shtml#tab-
ParlamentarischesVerfahren.  

Austrian Supreme Administrative Court, Judgment of 29 May 2018, Ra 2017/03/0083.  

Berka,  W.,  Heindl,  L.,  Höhne,  T.  and  Koukal  A.  (2019).  Mediengesetz  Praxiskommentar.  4th  ed. 
Wien:  LexisNexis.  Bertelsmann  Stiftung  (2019).  Sustainable  Governance  Indicators  (SGI)  – 
Austria. Gütersloh. https://www.sgi-network.org/2019/Austria   

Breitschopf  M.,  “Fünf  Jahre  „Transparenzpaket  -  Eine  kritische  Bilanz  aus  zivilgesellschaftlicher 
Forum 
https://www.informationsfreiheit.at/wp-

Perspektive’ 
(Five 
Informationsfreiheit, 
content/uploads/2017/08/Echte-Transparenz-Langfassung-1.9.2017.pdf.  

Package).  Meine  Abgeordneten, 

years  Transparency 

Dossier. 

CEDAW (2019), Concluding observations on the ninth periodic report. 

Center 

for  Media  Pluralism  and  Media  Freedom,  Decriminalisation  of  Defamation. 

https://cmpf.eui.eu/wp-content/uploads/2019/01/decriminalisation-of-
defamation_Infographic.pdf.  

Centre  for  Media  Pluralism  and  Media  Freedom  (2020),  2020  Media  pluralism  monitor. 

https://cmpf.eui.eu/media-pluralism-monitor/mpm-2020.  

CEPEJ (2018), European judicial systems: efficiency and quality of justice.  

CEPEJ (2020), Study on the functioning of judicial systems in the EU Member States. 

CIVICUS, Monitor tracking civic space: Austria. https://monitor.civicus.org/country/austria.  

Constitutional  Court,  COVID-19 

decrees 
https://www.vfgh.gv.at/medien/Covid_Entschaedigungen_Betretungsverbot.de.php.  

constitutional, 

several 

law 

is 

are 

not. 

Constitutional 

Court, 

Constitutional 

Court 

will 

convene 

again 

mid-July. 

https://www.vfgh.gv.at/medien/Juli_Beratungen.de.php.  

Consultative Council of European Judges, Opinion No. 19 (2016) on the role of Court presidents.  

Consultative  Council  of  European  Judges,  Opinion  of  the  CCJE  Bureau  following  a  request  by  the 
Association of European Administrative Judges (AEAJ) as regards the legal setting of the position 
of the president (vice-president) of the Administrative Court of Vienna, AustriaCCJE-BU(2019)3, 
29 March 2019.  

Council of Europe: Committee of Ministers (2000), Recommendation Rec(2000)19 of the Committee 

of Ministers on the role of Public Prosecution in the criminal justice system.  

15 

 
 
Council of Europe: Committee of Ministers (2010), Recommendation Rec(2010)12 of the Committee 

of Ministers on judges: independence, efficiency and responsibilities.  

Council  of  Europe,  Platform  to  promote  the  protection  of  journalism  and  safety  of  journalists. 

https://www.coe.int/en/web/media-freedom.  

Court  of  Audit,  Bericht  des  Rechnungshofes.  Korruptionspräventionssysteme  in  ausgewählten 
13.1. 
BMI, 

Bundesministerien 
https://www.parlament.gv.at/PAKT/VHG/XXVI/III/III_00015/imfname_673740.pdf.  

BMLFUW), 

section 

2017/8 

(BKA, 

BMB, 

Court  of  Audit,  What  needs 

to  be  done  –  10 
https://www.rechnungshof.gv.at/rh/home/home_1/home_6/Wasjetztgetanwerdenmuss.pdf.   

the  new  Government. 

topics 

for 

Die  Presse,  Reporting  obligation  for  corruption 

investigators 

is  a  flagrant  contradiction. 

https://www.diepresse.com/5611005/berichtspflicht-der-korruptionsermittler-eklatanter-
widerspruch.   

European  Commission 

on  Austria. 
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/organized-crime-and-
human-trafficking/corruption/anti-corruption-report/docs/2014_acr_austria_chapter_en.pdf.  

(2014),  Anti-corruption 

2014.  Annex 

report 

European Commission (2020), EU Justice Scoreboard.  

Forum  Informationsfreiheit  (2020), contribution  from  Forum  Informationsfreiheit  for the  2020  Rule 

of Law Report.  

Fundamental  Rights  Agency,  Coronavirus  pandemic  in  the  EU  –  fundamental  rights  implications  – 

Bulletin 3 (3 June 2020). Country: Austria. 

GRECO  (2019),  Fifth  Evaluation  Round  –  Evaluation  Report  on  Belgium  on  preventing  corruption 
and  promoting  integrity  in  central  governments  (top  executive  functions)  and  law  enforcement 
agencies. 

GRECO (2016), Third Evaluation Round – Second Compliance Report on Austria on  Incriminations 

(ETS 173 and 191, GPC 2) and Transparency of Party Funding. 

GRECO (2019), Fourth Evaluation Round – Compliance Report on Austria on Corruption prevention 

in respect of members of parliament, judges and prosecutors.  

Index  on  Censorship.  Demonising 

the  Media:  Threats 

to 

Journalists 

in  Europe. 

https://www.indexoncensorship.org/wp-content/uploads/2018/11/index-report-2018-web-v3.pdf.  

Interessenvertretung gemeinnütziger Vereine (IGO), Civil Society Index 2019. 

Judges’ Association and Union of Judges and Prosecutors, Resources for the rule of law. 

KommAustria, https://www.rtr.at/en/rtr/OrganeKommAustria.  

Ministry  of  Justice,  Important  Notices  concerning 

the  Lobbying  and  Advocacy  Register. 

https://lobbyreg.justiz.gv.at/edikte/ex/edparm3.nsf/a5c123accf39f319c1256a4f0033b507/8b36792
61eb9d105c1257adb005bed16/$FILE/Information%20(english).pdf.  

Ministry 

of 

Justice,  Measures 

system. 
a  modern 
https://www.justiz.gv.at/file/2c94848b6d50e800016e6a285abf00ed.de.0/wahrnehmungsbericht_hb
m%20jabloner.pdf.  

high-quality 

justice 

and 

for 

Ministry 

of 

2018. 
https://www.justiz.gv.at/file/2c94848b651953620165f6f978cb0d79.de.0/weisungsbericht_2018_en
dfassung.pdf.  

Weisungsbericht 

(2018), 

Justice 

National Council (2017), Committee report AB 1622 d. B., XXV. GP. 

OECD 

(2020),  Regulatory 

Impact  Assessment  and  Regulatory  Oversight 

in  Austria. 

https://www.oecd.org/gov/regulatory-policy/RIA-in-Austria-web.pdf.  

16 

 
 
Prosecutor’s  Association,  Requirements  of  the  Prosecution  Service.  https://staatsanwaelte.at/wp-

content/uploads/2019/09/Notwendigkeiten-der-Staatsanwaltschaften.pdf.  

Prosecutor’s  Association  (19  May  2019),  Causa  Eurofighter.  https://staatsanwaelte.at/causa-

eurofighter/.  

Reporters without Borders, Austria. https://rsf.org/en/austria.  

Transparency  International  Austria,  PRESSEINFO:  Corruption  Perceptions  Index  (CPI)  2019 

(23.01.2020), https://www.ti-austria.at/2020/01/23/ti-ac-presseinfo-cpi-2019/.  

Virtual country visit to Austria in the context of the 2020 Rule of Law Report. 

17 

 
 
 
Annex II: Country visit to Austria 

The Commission services held virtual meetings in June 2020 with: 

  Austrian Association of Administrative Judges 
  Austrian Judges’ Association 
  Austrian Press Council 
  Central Prosecutor's Office for Combating Economic Crimes and Corruption 
  Court of Audit 
  Federal Bureau for the Prevention of and Fight Against Corruption (BKA) 
  Federal Chancellery  
  Federal Ministry of Justice  
  Federal Ministry of the Interior 
  Federal Ministry for European and International Affairs 
  Forum Informationsfreiheit 
  KommAustria (Media Regulator) 
  Senior Prosecutor's Office Vienna 
  Supreme Administrative Court 
  Supreme Court 
  Transparency International Austria 
  Weisungsrat 

* The Commission also met the following organisations in a number of horizontal meetings:  

  Amnesty International 
  Civil Liberties Union for Europe 
  Civil Society Europe 
  Conference of European Churches  
  EuroCommerce 
  European Center for Not-for-Profit Law  
  European Centre for Press and Media Freedom 
  European Civic Forum  
  Free Press Unlimited 
  Front Line Defenders 
 
ILGA-Europe 
 
International Commission of Jurists 
 
International Federation for Human Rights  
 
International Press Institute  
  Lifelong learning Platform  
  Open Society Justice Initiative/Open Society European Policy Institute 
  Reporters without Borders  
  Transparency International EU  

18