«In allen Instanzen getrennt»: la via austriaca all’affermazione della giustizia nella e sulla amministrazione

The essay analyzes the evolution of the Austrian system of protections against the Public Administration, through a diachronic analysis that highlights the convergence and differentiation profiles with respect to the traditional model typical of civil law systems. After having illustrated the developments of administrative justice towards increasingly less judicial forms, the analysis focuses on the innovations introduced by the constitutional reform of 2012, which brings to completion the process of progressive approximation of the Austrian legal system to the European model of administrative justice, today characterized by clear centrality of the means of jurisdictional protection towards the PA and the enhancement of the subjective conception of jurisdiction. The essay ends, on the one hand, with some reflections on the repercussions of the new model on two cornerstones of dogmatics relating to the theory of the State: the democratic principle, in relation to the representation-responsibility-political direction-administrative implementation circuit; the principle of the rule of law which wants, at the same time, an independent judiciary and the full justiciability of the administrative action. On the other hand, it underlines that, looking at the state of implementation of the reform — although still relatively recent —, the new administrative judges are actually working as an instrument of protection of rights, as well as a guarantee of the rule of law, thus confirming the constitutional character acquired by the European administrative justice systems, in constant tension between the subjective and objective legal protection.