Fundamental Rights Section
to receipt of this notification. Any other interpretation result is ruled out, as it would assume
unconstitutional content in Sect. 134a para. 4 LFG:
As an airport pass is a prerequisite for lawful access to the security area of an airport, a
person who may not receive/retain a pass on the basis of a notification by the Federal Ministry of Transport, Innovation and Technology may no longer be employed in an activity for
which access to the security area is a prerequisite.
In view of these legal consequences, the 'notifications' in question intervene in the private
autonomy of the civil airport keeper, because they restrict him in the freedom to decide for
himself, which persons he can employ in which functions and thus also intends to grant
access to the security area of the airport. The same also applies to companies in a legal
relationship with the civil airport keeper and requiring personnel with access to the security
area, in order to fulfil their resulting obligations.
As the private autonomy – and particularly the right to conclude contracts under private law
– according to the case law of the VfGH (cf. in principle, VfSlg. 14.500, 14.503/1996 and
17.071/2003), is fundamentally protected by the constitutional ownership guarantee, in any
case, an intervention exists in a constitutionally protected legal position of the civil airport
keeper/the contractual partner, as an employer.
At the same time, due to the associated legal consequences, the 'notification' additionally
intervenes in the constitutionally protected (by Art. 6 StGG – Staatsgrundgesetz – Basic
Law) freedom to perform commercial activities by the (potential) employee, because every
person who may not have an airport pass issued/has an airport pass revoked, on the basis
of a respective 'notification', may not enter into/maintain an employment relationship with a
civil airport keeper/his contractual partners, for the implementation of which, access is necessary to the security area of the airport. In the light of the settled case law of the VfGH on
Art. 6 StGG – see example of VfSlg. 16.740/2002,16.927/2003 and 17.238/2004 – in this
context, a serious intervention in fundamental rights must also be spoken of, because employment/exercise of a profession is made virtually impossible for the person negatively
affected by the 'notification'.
In its case law, the VfGH has always emphasised that the constitutional definition of an official notification fulfils constitutional functions, among these, particularly ensuring legal protection with respect to the administration (cf. e.g. VfSlg. 11.590/1987, VfSlg. 13.223/1992
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