Key facts of the case:
An exclusion order was imposed on the applicant, a Turkish citizen, because of certain criminal convictions. His appeal was dismissed by the Tyrol Public Security Authority (Sicherheitsdirektion). Before the Supreme Administrative Court the applicant argued that the Public Security Authority had not been the competent authority, as appeals against return decisions had to be decided by the Independent Administrative Tribunal (Unabhängiger Verwaltungssenat).
The Act Amending the Aliens Law (Fremdenrechtsänderungsgesetz 2011, Federal Law Gazette I Nr. 38/2011) introduces the new Section 9 para 1a Aliens Police Act (Fremdenpolizeigesetz) ordering that from 1 July 2011 the Independent Administrative Tribunals decide on appeals against return decisions. The report of the subcommittee for internal affairs of the Austrian Parliament states: “[…] The new Paragraph 1a transposes Art 13 para 1 of Directive 2008/115/EC, which has to be read in the light of the case-law of the European Court and especially read together with Art 47 of the European Charter of Fundamental Rights.” It transpires from this explanation that the legislator wanted to install the Independent Administrative Tribunals as appeal bodies in the areas of application of Directive 2008/115/EC in order to transpose the guarantees of judicial protection provided by the directive. As far as this is required by Union law it is to be noted that these requirements had to be observed from the date when the directive had to be transposed – according to Art 20 of the directive the Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with this directive by 24 December 2010 – independently from the date when the Act Amending the Aliens Law entered into force. Therefore it has to be assumed that from the expiry of the time limit for the transposition of the directive the establishment of the Public Security Authorities as appeal bodies did not comply with the guarantees of judicial protection provided for by the directive. On the basis of directly applicable Union law which enjoys primacy of application, it is therefore necessary to establish tribunals instead of the Public Security Authority in the area of application of the directive.