Ex-post control
The AOB welcomed the extensive investigation by the authorities and the extensive
measures implemented by the authorities. Such incidents can only be prevented
with sufficient training and by sensitizing the officials.
Individual case: VA-BD-I/0452-C/1/2012, BMI-LR2240/0384-II/1/c/2013
3.5 Transport, Innovation and Technology
3.5.1 Fundamental rights
Design approval partially unconstitutional
The provision of Section 32a (3) last sentence of the Railway Act
(Eisenbahngesetz), according to which the content of the opinion attached to
the application for design approval is assumed to be accurate until proven
otherwise, is unconstitutional in light of the most recent legislation.
Law stipulates
assumption that
content of expert
opinion is accurate
Previously, an amendment of the Railway Act (Eisenbahngesetz) had been planned
which specified an evaluation by an internal expert for design approval processes
for rail vehicles. However, this provision has been replaced with the requirement of
an external expert statement. Section 32a (3) of the Railway Act (Eisenbahngesetz),
as amended by Federal Law Gazette I No. 125/2006, stipulates that such opinions
must be presented as evidence to show whether the rail vehicle (or amended rail
vehicle) for which design approval is to be granted is “state of the art” in the
aspects outlined in the law. As a result, according to Section 32a (3) last sentence
leg. cit., the “assumption that the content is accurate until proven otherwise” applies
to the expert opinion/s.
Constitutional
Court determines
unconstitutionality
The Constitutional Court in its ruling on 2 October 2013, G 118/12, overrode the
provision of identical wording in Section 31a (1) Railway Act as unconstitutional.
The Constitutional Court gave the reason that it is incompatible with the ruleof-law principle and with Article 11(2) of the Federal Constitutional Act (BundesVerfassungsgesetz) to deprive the authorities responsible for granting approval
under railway law of their responsibility to independently determine the facts.
Legal situation in
accordance with
Federal Constitution
According to the AOB, these findings also demonstrate that the provision of Section
32a (3) last sentence of the Railway Act is unconstitutional, because this uses the
identical wording to the provision overridden by the Constitutional Court. It is now
the legislator’s responsibility to create a new, constitutionally unproblematic legal
basis for the design approval process for rail vehicles.
Individual case: VA-BD-VIN/0029-A/1/2012
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