Fundamental Rights Section
unexpected increase in work, etc.), overburdening of the authority may never justify an intrinsic excessive duration of proceedings.
In view of these basic principles, the entitlement of this complaint is evident for the Ombudsman Board, because a time period of approx. 10 years having passed between the
subsequent examination of an aircraft and the stipulation of the designated fee cannot be
justified by anything.
2.3.3
Judicial enforcement of the rights of neighbours in the case of
private nuisance caused by guests outside business premises
Neighbours of catering operations are frequently exposed to nuisance caused, not by the
establishment itself, but rather, the behaviour of the guests outside of the business premises. The trade law provisions offer no/only insufficient assistance in this respect. In contrast, the courts affirm liability under neighbouring rights by the innkeeper for the behaviour
of guests.
With the Trade Law Amendment Act 1988, Federal Law Gazette no. 399/1988, in the provision of Sect. 74 para. 3 Trade and Industry Code, the precondition for an approval obligation under business premises law through the behaviour of guests in business premises
was revoked to the extent that this was restricted to private nuisance caused by persons in
the business premises. With this, the legislator has significantly reduced the scope of responsibility of the trade authority, as well as the neighbourhood protection.
The behaviour of guests outside of the business premises can now only give rise to the
ordering of earlier closing hours under the limiting preconditions of Sect. 113 para. 5 Trade
and Industry Code 1994. In concrete terms, the legislator has restricted this obligation (of
the municipality in its own sphere of competence) to move closing hours forward to those
cases in which 'the neighbourhood is repeatedly, unreasonably disturbed by nonpunishable behaviour of guests outside the premises of the hospitality facility, or if security
police misgivings exist'.
In the assessment of the circumstance of 'by non-punishable behaviour', the respective
provision of the respective state police law for delineating punishable from non-punishable
behaviour must particularly be considered, so that the moving forward of closing hours
cannot be ordered, if the behaviour of guests outside of the business premises, e.g. can be
sanctioned as undue noisiness, according to administrative penal law provisions. In practice, it is barely possible for the neighbour to prosecute those causing undue noise, as the
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