Finanzprokuratur - Lawyer and legal advisor of the Republic of Austria
Table of contents
- I. Introduction
- II. The Finanzprokuratur
- A. Establishment and legal basis of the Finanzprokuratur
- B. Role of the Finanzprokuratur within the Austrian state
- C. Clients of the Finanzprokuratur
- D. Task fulfilment and lawyer’s fee
- E. Mission and Activities
- F. Organisation of the Finanzprokuratur including the provided areas of law
- G. Requirements for working at the Finanzprokuratur and vocational training
As proper legal services ensure the legality of decisions and help prevent or reduce the risk of subsequent cost and time consuming litigation, the organisation of legal services is of crucial importance for everyone, in particular for governments where lots of decisions have to be made day by day.
There are different ways to organise legal services within a state, such as building up legal departments in each ministry or one legal department for the whole government and farming litigation out. In these cases the government would most likely be represented by private lawyers.
Another way to provide profound legal services including legal representation is to establish a federal law office like the Finanzprokuratur, which can be consulted by all ministries and other public bodies. In Austria, ministries basically have their own small legal departments, which are not allowed to represent in court, however.
As the lawyer and legal advisor of the Republic of Austria the Finanzprokuratur provides counsel on laws to the Government, the federal ministers and ministries, as well as other public bodies and represents them in all court cases.
The historic role of the Finanzprokuratur dates back to the 13th century. It was formerly called “Fiskalat” or “Kammerprokuratur” and combined the counsel for the prosecution and the civil lawyers in one function.
The main tasks of the head of the “Fiskalat” or “Kammerprokuratur”, who was a civil servant appointed by the Emperor, were providing advice on legal issues to the Emperor and landlord and representing them in court in both, civil and criminal law matters.
Liability of public authorities in lieu of the individual damaging officer for damages caused by official acts is an ancient legal concept in Austria as well. The damaging officer cannot in person be sued by the aggrieved party. This special kind of liability can be documented as far back as 1539 (Raitkammerordnung of Lower Austria) and is probably even older. Public liability is one of the main tasks of the Finanzprokuratur as a legal representative nowadays.
On the occasion of the revolution in 1848 and the establishment of a distinct prosecution the Finanzprokuratur remained as the civil lawyer of the state being in charge of civil and public law in the broadest sense. The prosecution on the other hand is the legal party responsible for presenting the case against an individual suspected of violating the criminal law in a criminal trial.
The first provisional regulations stating the organisation and duties of the Finanzprokuratur as the civil lawyer came into force in 1898 and remained in force until 1938, when the Finanzprokuratur was suspended due to the Second World War.
In 1945 the Finanzprokuratur was awarded a statutory basis for the first time, which was replaced by new regulations only last year as a result of the comprehensive structural reform of the Finanzprokuratur in 2007 and 2008. It was identified that the statutory basis of 1945 needed re-examining to ensure the Finanzprokuratur was fit for the 21st century. Some points needed clarifying.
The structural reform including drafting the bill for the new statutory basis was mainly done in the Presidium of the Finanzprokuratur, partly with the assistance of an external consultant.
The current legal basis on which the Finanzprokuratur acts is the “Finanzprokuratur-Law” passed on 8th of August 2008 and came into force on the 1st of January 2009. The new law codifies the scattered regulations, especially regarding the statutory clients, and is in keeping with the times again.
Previously the Finanzprokuratur was structured into 13 departments and 6 sub-units; each department was in charge of one ministry, generally speaking. Since 1st of January 2009 the departments are divided in compliance with the different law areas.
In addition, the clients as well as the duties of the Finanzprokuratur have been newly defined and for the first time the new provisions stipulate principles for the organizational structure and the vocational training for the lawyers.
The Finanzprokuratur, the statutory lawyer and legal advisor of the Republic of Austria, is a federal law office with about one-hundred employees including forty-six lawyers and is headed by the President, Mr. Peschorn. Unlike the Attorney General in Australia or Canada, the President of the Finanzprokuratur is not a member of the government.
The mission of the Finanzprokuratur is basically twofold:
- Providing legal advice to public authorities and other legal entities stipulated in the provisions for the Finanzprokuratur, as well as
- Representing public authorities and other legal entities stipulated in the provisions for the Finanzprokuratur in all litigation.
Despite some differences in detail, the Finanzprokuratur basically does what a private law firm is expected to do.
Additionally, the Finanzprokuratur serves as guardian of the Public Interest under specific circumstances.
Organisationally, the Finanzprokuratur is a federal agency and for historical reasons a subordinated public office of the Ministry of Finance. It is to stress, that the Minister of Finance has no academic supervision, but dealing with personnel despite the Finanzprokuratur being a disciplinary and administrative authority for its employees. The Minister of Finance, for instance, assesses the number of new staff; the recruiting is done by the Finanzprokuratur.
The president of the Finanzprokuratur, who is a civil servant, is appointed by the Minister of Finance upon the recommendation of a special statutory commission for a period of five years, which is automatically extended for additional periods in equal length except in the case of President doing something wrong.
In spite of that, the Finanzprokuratur has maintained its political neutrality over the years and acts non-partisan. The Finanzprokuratur is not bound by instructions from the Ministry of Finance in its daily business; actually the lawyers are bound by instructions from its respective clients.
Due to the fact that the Finanzprokuratur serves as legal counsel for all ministries and public authorities political neutrality is of paramount importance.
Since the Finanzprokuratur is free of political party influence and interference, the legal decisions may be arrived at independently and without concessions to political instructions.
As a result of the high level of technical qualification, the special “state-related” know-how in dealing with governmental problems and its political neutrality, the Finanzprokuratur is held in high esteem by the public-at-large as well as the public authorities and can be seen as substantial pillar of public authorities.
As already mentioned above, the Finanzprokuratur acts on the statutory basis of the “Finanzprokuratur-law” that exactly specifies the clients who can be legally advised or represented in court cases by the Finanzprokuratur. The Finanzprokuratur is not allowed to represent any private person before court or to give legal advice to individuals.
In detail, the law states that the Finanzprokuratur only can be consulted by:
- The Republic of Austria
The main client of the Finanzprokuratur is the Republic of Austria, in particular the Federation, the federal government, the ministers and government ministries, the Federal Chancellor and other federal authorities such as tax offices, police-departments and so on.
- Legal entities with close links to the State:
- Businesses in which the Republic of Austria holds a majority stake;
- Companies who are fundamentally funded by the Austrian State;
- Legal entities who are administrated by public agencies or individuals who have been appointed by public agencies;
- Public bodies and institutions as well as
- Public foundations and funds.
As legal entities with close links to the State can be mentioned for instance: Austrian National Railways, Universities or Austrian Federal Forests
- State governments and local government authorities
- Public interest:
In order to prevent damage for the Republic of Austria, the Finanzprokuratur has to act immediately in any urgent matters as long as the competent authority cannot be traced.
Among these clients the Republic of Austria differs strongly from all other clients, especially as the Republic of Austria is not allowed to hire a private lawyer for representation in ordinary national courts (which is from the court of first instance up to the Supreme Court) without the consent of the Finanzprokuratur.
Under the provisions of the Finanzprokuratur-law, the Republic of Austria is obliged to be represented in ordinary national courts by the Finanzprokuratur; otherwise all legal acts are deemed invalid. Deliveries such as the service of a writ or other court documents are only legally effective when they reach the Finanzprokuratur. The time given for the statement of defence for instance does not begin to run before the Finanzprokuratur gets to know the pleading.
The Republic of Austria is a so called “obligatory client” of the Finanzprokuratur, whereas other clients such as state governments, local government authorities and other legal entities with close links to the State are so called “facultative clients”.
The facultative clients have the possibility to consult the Finanzprokuratur, but they are not obliged to do so.
As far as legal advice out-of-court or legal representation beyond ordinary national courts is needed (such as before the Higher Administrative Court), the Republic of Austria could also hire a private lawyer. In this area the Finanzprokuratur competes with private lawyers.
In fact, due to the high quality of work of the Finanzprokuratur, the Republic of Austria (public authorities) seeks the legal opinion of the Finanzprokuratur more and more. Additionally, the Republic of Austria does not have to pay extra for the legal services of the Finanzprokuratur.
If there are legal disputes between the Republic of Austria and a facultative client of the Finanzprokuratur, which leads to a conflict of interest for the Finanzprokuratur, the Republic of Austria will always take priority.
Before giving advice to a client or representing him in court, the Finanzprokuratur basically needs a specified order. When placing the order the clients have to inform the Finanzprokuratur about the substantial facts of the case.
The only exception to this rule is in the event of imminent danger to the Republic of Austria or particular need for urgency. In these cases the Finanzprokuratur has to act for the public benefit promptly.
An order of the Republic of Austria must be regarded as an internal instruction that has to be obeyed, whereas orders of other clients are seen as private orders which can be recalled or refused to accept.
Fulfilling its tasks, the Finanzprokuratur is subject to official secrecy without exception. All cases shall be treated strictly confidential by the Finanzprokuratur.
As a public agency the Finanzprokuratur is committed to the principles of efficiency, usefulness and economy, all three are laid down in the Austrian constitution, as well as to the rule of law.
The Finanzprokuratur has to safeguard public interests in a comprehensive way.
These are the reasons why the Finanzprokuratur does not go to court exclusively for the sake of going to court.
Regarding the lawyer’s fee there is a big difference again between the Republic of Austria and the other clients of the Finanzprokuratur.
While the Republic of Austria never has to pay for the provision of services except cash expenditure like law charges, all other clients of the Finanzprokuratur including state governments and local government authorities have to remunerate for the legal services of the Finanzprokuratur in line with market requirements.
As a benchmark for the remuneration, the Finanzprokuratur makes use of the relevant provisions regarding the (private) lawyer’s fee such as the Austrian Law of Fees for (private) Lawyers (RATG) and the General Criteria for Fees for (private) Lawyers (AHK).
The aforesaid differentiation is definitely justified as the Republic of Austria has to bear the personnel costs as well as the material expenses of the Finanzprokuratur which is a public agency. In return, the legal services are free of charge, no matter whether representation in court cases or legal advice is required.
As the lawyer and legal advisor of the Republic of Austria, the Finanzprokuratur basically has to provide legal counsel and legal representation. In fact, the Finanzprokuratur has lots of competences.
- Legal counsel
One of the most important jobs of the Finanzprokuratur besides legal representation is acting as legal counsel.
Legal counselling includes for instance:
- drafting contracts
- contracting on behalf of the client
- drawing up legal documents in due form
- giving legal opinions; written or oral statements
- conducting conferences
- holding meetings
Despite the fact that legal opinions of the Finanzprokuratur are not binding, they are highly-valued because of their prime quality. Public authorities commonly seek the advice and consent of the Finanzprokuratur before making policy decisions which may later be found to be contrary to the law.
The Finanzprokuratur performs approximately 8.000 legal counsels a year.
- Legal representation
The Finanzprokuratur represents its clients in legal proceedings in all national and international courts, administrative agencies and tribunals mainly in civil and administrative but also partly in criminal matters (for instance lodging a claim for damages resulting from criminal offences in the course of criminal prosecution).
Concerning the Republic of Austria, the Finanzprokuratur alone is empowered to represent the State in ordinary national courts such as the Court of First Instance, the Court of Appeal and the Supreme Court; all other clients have a free choice of their representative. They need not to be represented by the Finanzprokuratur. They can also engage private lawyers.
The Finanzprokuratur may:
- act as plaintiff, such as in the case of an infringement of law or breach a contract by the contractual partner, or
- act as defendant when actions are brought against the Republic of Austria or against any other of its clients or
- access as intervenor in legal proceedings on behalf of its clients.
Doing these, the Finanzprokuratur has to draft all kind of pleadings and attend all trials.
Every year there are approximately 1.000 new court-cases which the Finanzprokuratur pleads.
The Finanzprokuratur also has the competence to mediate or to help a legal dispute being settled out of court.
- Arbitration opinions
To provide arbitration opinions is another competence of the Finanzprokuratur.
- Legislative advice
The Finanzprokuratur is becoming more and more involved in the preparation of Government legislation as well as in the commenting on drafted bills.
- Seminars and newsletters
The Finanzprokuratur can provide its clients with newsletters (for instance about court rulings or other current topics) and hold seminars. There are lots of seminars held for tax offices about tax enforcement or public liability.
- Intervention as legal party
Prescribed in some legal provisions the Finanzprokuratur is empowered to intervene in specific legal proceedings. To give an example, the Austrian Insolvency Law states that the Finanzprokuratur has to be a part of all big bankruptcy proceedings to represent the Public Interest
- Central contact point for individuals
Last but not least, the Finanzprokuratur acts as a central contact point for individuals who intend to sue the Republic of Austria for damages caused by official acts.
In case an individual makes claims against the Republic of Austria for damages, he/she has to follow a statutory preliminary proceeding of which the Finanzprokuratur is exclusively in charge. The private person has to inform the Finanzprokuratur about all the facts and state its financial demands. There is no prerequisite that the private person knows the exact at-fault party.
Subsequently, it is up to the Finanzprokuratur to find out the competent authority and to assess the facts. The Finanzprokuratur counsels the competent authority whether or not it should admit to the claim. In these cases the Finanzprokuratur acts as an authorised expert. Commonly, the competent authority complies with the recommendation given.
As this proceeding ensures prompt and simple help as well as equal treatment, it is on the one hand a substantial easement and improvement for private persons making complaints.
On the other hand, this proceeding saves the general public and the public administration considerable expenses for hopeless trials.
Fulfilling all these tasks the Finanzprokuratur plays an important role regarding the coordination of official acts and the development of law as well.
At the top there is the Presidium, which is headed by the President and responsible for the organisation, Human Resource Management, the coordination of the lawyers’ activities as well as the representation of the Finanzprokuratur. In special or sensitive cases, legal counsel as well as legal representation is also done by the Presidium (for instance drafting contracts concerning the financial crisis).
The accountancy as well as the service and support area supports the lawyers in fulfilling their tasks.
Ordinarily, the legal counsel and representation is provided by eight law-departments which are divided in different law areas. As the Finanzprokuratur has to provide legal counsel for all the activities and areas of responsibility of the Republic of Austria (for instance reversion law which is unique for states), at least a broad legal knowledge of all state-related law areas is needed.
The different departments for instance deal with:
- Employment and social affairs: Employment (dispute) law, social security law, labour law, service law
- Government tasks and judiciary: Military law, monument protection law, university law, European law, public law, police law, criminal law, constitutional law, administrative law, asylum law, food law
- Innovation, subsidies and competition: Antitrust law, patent law, press law, copyright law, law of competition, intellectual property law, consumer protection law, data protection law, restitution law
- Real estate: Building law, land law, tenancy law, law relating to registration of deeds, expropriation law, servitudes
- Infrastructure and public procurement: Transport law, road traffic law (including car accidents), public procurement law, energy law, communication law
- Company and capital affairs: Corporate law, banking law, law of balance sheets, stock exchange law, trade law, tax law, insurance law, law relating to associations, capital market law, budget law
- Insolvency and debt enforcement: Insolvency law, reversion law, customs law, financial law, enforcement law, annulment law
- Environment and nature conservation: Environmental law, water rights, forestry law, wildlife law
As federal agency the Finanzprokuratur must have a vacant permanent post before recruiting new staff. The number of permanent posts per federal agency is laid down in the staff establishment plan launched by the Austrian government.
In order to start working at the Finanzprokuratur as a trainee-lawyer, applicants have to fulfil certain prerequisites such as:
- University degree in Austrian law
- Court-experience of at least nine months
- Comprehensive legal knowledge checked during the job interview
If someone has already had professional experience during his career it would be a big advantage in getting the job.
As all lawyers at the Finanzprokuratur are civil servants who cannot be dismissed without cause, new employees are on temporary contracts for the first year to see whether they prove themselves. After this period they get a permanent contract or if they fail, they would have to leave the Finanzprokuratur.
Once working with the Finanzprokuratur, trainee-lawyers have to successfully pass within a period of five years
- the lawyer’s exam as well as
- the public office exam,
otherwise the employment is automatically terminated.
During the period of education new employees pick up skills mainly whilst working along side experienced lawyers at their place of work (so called “on-the-job-training”). In this way they get used to practical experience dealing with day to day requirements of the job.
Trainee-lawyers at the Finanzprokuratur have to attend the courses for judges that take place at the court of appeal in Vienna two days a month.
Apart from that, trainee-lawyers as well as examined lawyers have to attend lots of seminars at the Academy of Lawyers for instance, which are fully funded by the Finanzprokuratur. A lawyer gets paid approximately four seminars a year by the Finanzprokuratur.
To sum up, candidates for the position of a lawyer at the Finanzprokuratur must meet demanding professional criteria.
Due to the widespread vocational training and the fact that every single lawyer at the Finanzprokuratur has to pass two extensive legal exams (he is so called “double-examined”), the quality of work is at a very high level. This is also confirmed by the high customer satisfaction and the large number of gained litigation.
The Finanzprokuratur wins more than two thirds of its civil litigations per year.
 “Fiskus” stands for „treasury“ and was used when talking about the state.
 BGBl I Nr. 110/2008.
 The Austrian law assumes that a lawyer always possesses the required power of attorney; therefore it is sufficient that a lawyer refers to it before court.
 Contracts and civil procedure as well as torts are done by each department.