Granting and Restraining of Leeways in Administrative Decision-Making in Times of Crisis

Abstract

The phenomenon of leeways in administrative decision-making has been part of the Constitution since the birth of the Federal Constitutional Act (B-VG) and, therefore, is not a novelty of the COVID-19 pandemic. On the one hand, they appear as “discretionary powers” in the context of individual legislation and give a certain degree of flexibility to the administrative branch. On the other hand, there is also a certain leeway in the area of general law-making in terms of regulation. Consequently, the administrative branch is often referred to as “legislator in the substantive sense” and played a role that should not be underestimated alongside the first power, especially with regard to COVID-19 “legislation” or crisis control. This raises the question of the granting, but at the same time also the restraining of administrative freedom.