Fundamental Rights Section
L. 2 Lower Austrian Water Supply Line Connection Act 1978, with a letter dated December
20, 2002.
With a letter from the Municipality of Tulln dated June 5, 2003, N.N. was notified about the
initiation of the criminal proceedings by the Administrative District Authority, again requested to submit a drinking water assessment and informed that the initiation of the enforcement proceedings would be applied for, in the event of non-compliance. This application was also subsequently filed.
As gathered from the documentation, an appeal decision for the Municipal Council of the
Municipality of Tulln was prepared in September 2002; however, this did not reach the
agenda of the Municipal Council meeting, at the recommendation of the responsible committee of the Municipal Council. Only with a decision on June 21, 2004, did the Municipal
Council of the Municipality of Tulln deal with the application, by rejecting the appeal dated
May 28, 2002 as unjustified and affirming the contested official notification.
With a date of June 21, 2004, an official notification by the mayor of the Municipality of Tulln
was issued in respect of number 8500-02038-1, with which the official notification dated
June 21, 2004 (note: this can only mean the official notification of the Municipal Council)
was rescinded pursuant to Sect. 68 para. 2 AVG (Allgemeines Verwaltungsverfahrensgesetz - General Administrative Procedure Act). This was justified by the fact that the date of
the Municipal Council decision was not correct.
Furthermore, with a preliminary appeal decision by the mayor dated August 23, 2004, the
appeal of the plaintiff dated May 28, 2002 pursuant to Sect. 64a AVG 1991 was approved
and the contested official notification rescinded without replacement.
The plaintiff filed an appeal against this preliminary appeal decision with a letter dated October 4, 2004.
In this respect, the Ombudsman Board notes that:
1.
Taking into consideration the relevant material law (Lower Austrian Water Supply Line
Connection Act), organisation law (Sect. 61 para. 1 Z. 1 Lower Austrian Municipalities
Act) and procedural law provisions (Sect. 64a, para. 2 AVG 1991 in its valid version) it
becomes clear that all authorities that had decided in the matter since June 2004
were not responsible.
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