In April 2021, the European Commission introduced a proposal for a regulation of the EU Parliament and the Council establishing harmonised rules for artificial intelligence (AI), a law commonly referred to as the “AI Act”. The AI Act aims to regulate the development, deployment, and use of AI systems in the EU and, among others, identifies specific so-called “High-Risk AI Systems”, which are subject to more stringent requirements for developers, providers, and users of such AI systems.

To start with an example:  if we look at the realm of automated driving, it becomes clear that AI plays a main facilitating role. Even though the EU´s AI Act will not directly apply to automated and autonomous vehicles, several accountability requirements outlined in the AI Act will be extended to them. This extension will come into effect through delegated acts of the Commission under the motor vehicle type-approval framework. Based on these acts, further national statutory provisions have also to be taken into consideration, which are regulating automated driving. The overall regulation ought to take place on numerous levels and via a variety of different acts, thus revealing a broad fragmentation of the imminent administrative multi-level legal framework. Hence, the question arises: who is supposed to – or even has the powers to – codify all of this?

The AI Act reveals the existing situation of legal determination of administrative action. New acts on the European level are constantly determining data governance, including administrative law pertaining to this field. In Austria, administrative law is already complex and multi-layered. It is fragmented by Europeanisation, internationalisation, privatisation and digitalisation. As such, it is an ever-evolving field, and a codification does not seem possible any longer. In this blog post, we navigate through the developments of the Austrian administrative law system. Within this context, we explore the emergence of codifications and discuss their ongoing fragmentation, which raises the fundamental question of how to deal with administrative law in a “post-codification era”.

The Golden Times of Codification in the Early 20^th Century or the Emergence of Codifications in Austrian Administrative Law

The starting point for codifications in Austria was the General Civil Code in 1812, which proved that this approach could integrate a fair degree of legal certainty into the legal framework. Austrian administrative law, however, was unregulated at that time and it took until the second half of the 19^th century for statutory administrative law to emerge. The Supreme Administrative Court, which was established in 1876, quickly started to create case law concerning principles of administrative procedures, understood as general principles of the rule of law. At the same time in the last part of the 19^th century, the Austrian Parliament, instituted by the Austrian Basic Laws in 1867, established intensified statutory administrative law. This dual effort gradually diminished the discretionary powers of the administration under the monarchy. The Austrian Basic Laws of 1867 were Austria´s first Constitution, which resulted in the Federal-Constitutional Act of 1920 (FCA) after turning Austria into a republic in 1918. However, the FCA is not an exhaustive codification of constitutional law and several further constitutional acts and provisions, which are not included in the body of the FCA, (still) exist in Austria, already revealing a lack of codification in the field of constitutional law.

The enactment of the FCA in 1920 and the establishment of the Austrian Constitutional Court (ACC) were crucial steps for the new Austrian Republic after the collapse of the Austro-Hungarian Monarchy in 1918. The FCA can be seen as the first codification of administrative law regarding administrative principles, such as the principle of legal certainty (Art 18 FCA), the organisation of the administration and even the forms of administrative action. Nevertheless, some of these concepts seem outdated and not properly adapted. Still, the Austrian Constitution is easily amended – having been amended over 100 times in the last 70 years – and, as mentioned above, does not form a codification on its own.

In those days, the new state found itself in an economic crisis, which made it necessary to reform the old, outdated, and inefficient monarchic administration. Based on international pressure, the General Procedural Act (GAPA) was enacted in 1925 as a codification of administrative procedure, especially codifying the case law of the Supreme Administrative Court of the last decades. Austria´s codification of administrative procedure including administrative penalties and administrative enforcement, took place relatively early in comparison to other European countries and is to this day of great success.  

After World War II, further developments were incorporated into the existing constitutional and legal framework. At the end of the 1980s, independent administrative tribunals were set up resulting of the European Court of Human Rights´ case law. At that time codifications still seemed to be the answer by building a systematic approach and providing legal certainty, efficient administration, and effective legal protection.

The Accession to the European Union in 1995 and its Consequences

The most profound change to the Austrian administrative law system unfolded with the nation´s accession to the European Union in 1995, which led to Austria being part of a system of European multi-level governance. It resulted in the Europeanisation and judicialisation of Austrian administrative law, contributed to the transfer of significant rule-making powers to private actors and, thus, a shift away from state regulation. The EU´s effect on the organisation of the administration is clearly visible in the establishment of independent agencies. They have been introduced and protected by Union law and not bound by governmental instructions, hence weakening the democratic concept of the Austrian administration, which is guaranteed by a hierarchical system of administration. Private organisations also establish autonomous self-regulatory frameworks that gain official recognition under EU law, superseding traditional ways of national regulation.

This multi-level framework including private and transnational actors presents an immense challenge for enabling a codification of Austrian administrative law as international and European concepts do not correspond with the Austrian system of administrative law. The way out of this dilemma seems to be a codification on a European level. However, these efforts at European harmonization and codification not only lead to increased European centralization, but are also unable to solve the dilemma of the need to regulate at different levels.

A prime example of a Union-wide harmonisation is the General Data Protection Regulation (GDPR) which has been enacted as a result of the increasing digitalisation of administration in the last decades. Austria´s journey in the field of data protection began in the late 1970s with the Austrian Data Protection Act (DPA) of 1978, establishing a fundamental right of data protection in Art 1 of the DPA. Austria´s accession to the EU prompted substantial changes to align with the European data protection directive of the year 2000, culminating in the harmonisation of data protection across Europe through the GDPR in 2018.

The GDPR can be understood as an attempt to codify the use of personal data by the administration creating substantive, procedural and organisational standards for all member states to follow. It illustrates the possibilities and limitations of administrative law codification in a multi-level system such as the EU with an impact relating to data processing principles, the rights of data subjects, data security, the establishment and organisation of national supervisory authorities, and legal protection. This regulation harmonises data processing while at the same time allowing the Member States significant leeway in form of flexibility clauses, especially in the context of data processing in public administration. Although the GDPR signals a shift from domestic to European codification of administrative law, the EU is only partly able to create a harmonised codification in a multi-level system. While the GDPR still gives the impression of managing digitalisation through codification, the claim of harmonisation has collapsed with the new laws at European level, as the Digital Services Act (DSA), the Data Governance Act (DGA) and the Digital Markets Act (DMA) have already been enacted and will be supplemented by an AI law.

The 21st Century as an Era of Post-codification

Austrian administrative law, now partly codified and with significant potential for further codification, stands at a crossroads in the 21^st century. In times long gone, codifications held the promise of reorganising society with structured legal systems ensuring legal certainty, empowering individuals to enforce their rights against the state.

Today, we find ourselves in a so-called “post-codification era”, as the existing codifications are permeated by European and international legal influences and the transfer of rule-making powers to private actors has weakened their impact. Codifications, once a symbol of order, are losing their significance. Fragmentation is leading to legal pluralism, which is also on the rise in the area of administrative law. Codification seems to be an anachronistic relic of the past.

Konrad Lachmayer is professor of public law, European law and foundations of law at the Faculty of Law of Sigmund Freud University in Vienna (konrad.lachmayer@jus.sfu.ac.at).

Eleonóra Wagenknecht is research assistant at the Faculty of Law of Sigmund Freud University in Vienna (eleonora.wagenknecht@jus.sfu.ac.at).

The blog entry is based on the publication K. Lachmayer, “Codification of Administrative Law in Austria”, in Felix Uhlmann (ed), Codification of Administrative Law. A Comparative Study on the Sources of Administrative Law (2023) Hart Publishing, 39-62. The publication is available open access (CC-BY-NC-ND 4.0) at https://www.bloomsburycollections.com/.