Der verwaltungsrechtliche Vertrag

The administrative contract has been treated by the jurisprudence of public law for about 150 years. Considering the Austrian jurisprudence, one can state that this figure has certain traces in provisions of statutory law. Nevertheless, a lot of questions about this instrument remain open, even in the light of the jurisdiction which has accepted this instrument as a kind of "dependent" source of law. The question of the constitutional conditions for the application of administrative contracts is yet controversial among the scholars of constitutional and administrative law. The present study tries to systematize the elements of the doctrine of administrative contracts and shows new options how this remarkable instrument could be used by a modern sovereign administration. In fact, the administration has to apply instruments of sovereign acts which date from the late 19th century without being modified significantly since that time. For the first time, the study has tried to set up extensive legal comparative comparisons between the Austrian doctrine and the German law of public contracts and their development. The analysis starts from the fact that the administrative contract can be seen as a point of intersection between several legal categories, especially between private and public law. Starting from this point, the study treats fundamental aspects as the dualism of Hoheitsverwaltung (sovereign administration) and Privatwirtschaftsverwaltung (administration by means of private law) as well as the choice of the legislator by setting up different forms of administration. In addition, the consequences of a supposed subordinative character of public law for the acts of the administration are questioned. Being important constitutional parameters of the application of administrative contracts, the aspects of their legal normativity are inquired in the light of the common theory after which the system of legal sources of public law is "closed" (enumerative) as well as regarding the situation that the contents of a contract is becoming controversial among the parties involved. The "rule of law", too, contains fundamental aspects, especially with regard to the explicit legal authorization (empowerment) to make such a contract in a concrete case. In this point, one can state actual opinions of jurisprudence which turn away from traditional points of view. However, the central aspect of constitutional conditions for administrative contracts concerns the individual legal remedies if one accepts a treaty: thereby, all schools of thoughts up to now are discussed. A special topic concerns the legal obligation of the authority to contract with the private partner. Finally, an analysis of the public legal protection system leads to the roots of a possibly new (material) definition of the higher instances` competences being opposed to the traditional formal kind of limitation of their competences. This leads to the opinion that the competences of the Unabhängigen Verwaltungssenate in den Ländern (UVS, Independent Administrative Authorities in the States) - which are supposed precursors of a Landesverwaltungsgerichtsbarkeit (Administrative courts in the States) - could perform as a system of direct tribunal legal protection with regard to administrative contracts. Finally, an overview about the actual and potential fields of application for administrative contracts in Austria as well as in Germany is given. Thereby, mainly the so far private Vertragsraumordnung (contractual land use planning) and the Leistungsvereinbarungen (university contracts) in the actual university law, which are instruments of public law, are discussed as a suitable field for public law relying on administrative contracts. Finally, the study treats the potential influence of EC law on the further development of the national doctrine of administrative contracts by means of a European doctrine of administrative acts.