Constitutional Court – No Internal Municipal Appeal Procedure under the IFG
In our newsletter dated 20th of March 2026, we reported on doubts regarding the constitutionality of the Austrian Freedom of Information Act (Informationsfreiheitsgesetz – IFG) with respect to the internal municipal appeal procedure. The Constitutional Court (Verfassungsgerichtshof – VfGH) has now ruled: the IFG excludes the internal municipal appeal procedure and is (in this respect) constitutional.
The Constitutional Court decided on applications submitted by several administrative courts challenging Section 11 IFG, in particular paragraph 2 thereof. The proceedings originated from cases in which municipalities, acting within their own sphere of competence, had refused access to requested information under the Freedom of Information Act (IFG). The referring administrative courts questioned whether Section 11 IFG constitutionally provides that appeals against such decisions may be lodged directly with the administrative court, or whether, in matters falling within a municipality’s own sphere of competence, the internal municipal appeal procedure (appeal to the municipal council) must first be exhausted.
According to the administrative courts, Article 118(4) of the Federal Constitutional Law (B-VG) generally provides for a two-tier appeal procedure within the municipality’s own sphere of competence, which may only be excluded by an express statutory provision. Section 11 IFG, however, does not contain an explicit exclusion of this appeal procedure. This, they argued, infringes both Article 118(4) B-VG and the constitutional principles of legal certainty and the right to a lawful judge under Articles 18(1) and 83(2) B-VG.
The Constitutional Court did not share these concerns. It first clarified that, while the exclusion of the internal municipal appeal procedure must be regulated with sufficient clarity and unambiguity, neither a particular wording nor the express reproduction of the constitutional text is required. What matters is whether the exclusion is clearly evident from the statutory provision.
In the Court’s view, Section 11(2) IFG clearly provides that an appeal against the decision of the information-obliged body may be lodged directly with the administrative court. The provision expressly refers to “such a decision” within the meaning of Section 11(1) IFG, namely the decision of the information-obliged body itself. Consequently, there is no room for an intermediate internal municipal appeal procedure. Furthermore, the IFG clearly pursues the objective of ensuring rapid and efficient enforcement of access to information, as demonstrated in particular by the shortened decision-making deadlines applicable to public authorities and administrative courts. An additional internal municipal appeal stage would run counter to this legislative objective.
The Constitutional Court also referred to voices in the academic literature that had supported this interpretation, including that of the author (Keisler, Das neue Informationsfreiheitsgesetz, RFG 2024, 83), which naturally is a source of satisfaction to him.
The Constitutional Court therefore concluded that Section 11(2) IFG constitutionally excludes the internal municipal appeal procedure and does not violate Article 118(4) B-VG, Article 18(1) B-VG or Article 83(2) B-VG. The challenged provision is sufficiently precise and clearly establishes the jurisdiction of the administrative courts. Accordingly, all applications seeking the repeal of Section 11 IFG or, alternatively, paragraph 2 thereof were dismissed.
