Fundamental Rights Section
and 13.699/1994). To the extent that this case law is relevant in this context, it can be
summarised with the following quotation from decision VfSlg. 17.018/2003:
'The VfGH has already declared in VfSlg. 13.223/1992 and emphasised in VfSlg.
13.699/1994 that a legal regulation is unconstitutional, which, despite intervention into the
legal sphere of an affected party, does not provide for any option to combat the legality of
this intervention and allow it to be examined by the public courts.'
It also follows this line, when the VfGH emphasises in its case law – already justified with
VfSlg. 2455/1952 and underlined in VfSlg. 16.772/2002 – that the sense of the constitutional principle of the federal constitution culminates in all acts by state bodies being justified in law and ultimately, in the constitution. A system of legal protection institutions guarantees that only such actions appear permanently secured in their legal existence, which
were passed in agreement with the higher level actions, on the basis of which they are
brought about.
Ultimately, in decision VfSlg. 12.184/1989, the VfGH expressly regarded a legal provision
which empowers the authority to issue an incriminating notification, as contravening the rule
of law principle.
In summary, it can therefore be noted that a legal regulation that empowers an authority to
pass an individual sovereign act, without granting the negatively affected citizens a legal
protection option, in the form of a complaint (at least) to the VfHG, is not reconcilable with
the legal protection system anchored in the constitution and is therefore unconstitutional.
According to the Ombudsman Board, the following consequences result from the above
described legal situation:
Based on the fact that the 'notification' by the Federal Ministry of Transport, Innovation and
Technology intervenes in constitutionally guaranteed rights of the civil airport keeper/his
contractual partners as employers, as well as in those of the (potential) employee, it must
be regarded as an 'official notification' within the meaning of Art. 144 B-VG, in an interpretation conforming to the constitution, because an intervention in constitutionally guaranteed
rights may only be carried out in conformity with the constitution by way of a notification,
which is ultimately opposable before the VfGH. This official notification must be delivered
to the civil airport keeper/his affected contractual partner, as well as the (potential) em-
32
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