Development of Principles in Administrative Procedural Law

A Historical Perspective on the Principle of Ex Officio Inquiry

Abstract

This paper addresses one of the determinants of the tense relationship between administration and (administrative) jurisdiction in Austria: the principle of ex officio inquiry and its historical foundations. Characteristically, this principle implies that the investigation of the facts relevant to a case must be conducted by the administrative authority or the administrative court respectively, without being bound to the pleadings or offers of evidence by the parties to the case. On that note, the principle dominates most administrative proceedings and, at the same time, shall be regarded as a part of the administrative courts’ powers of review – distinguishing them decisively from the civil courts. This paper tries to trace the roots of the relevant provisions of the General Administrative Procedure Act 1991 (Allgemeines Verwaltungsverfahrensgesetz 1991 – AVG), which are applicable in proceedings both before the administrative authorities and the courts, focusing on the fact-finding principle of ex officio inquiry. It wants to shed light on the early case law of the Supreme Administrative Court (Verwaltungsgerichtshof) and particularly on how the doctrinal works of Friedrich Tezner regarding principles of the administrative procedure have influenced core sections of the AVG until today.