Expert opinion by constitutional lawyer Heinz Mayer
Vienna (OTS) –
- Constitutional law expert Em. Univ. In a legal opinion, Prof. Heinz Mayer explains why the appointment of Stefanie Lindstaedt was unlawful due to the participation of at least two biased convention members.
- Helmut Fallmann resigns as a member of the founding convention.
Linz, April 12, 2023 – The renowned constitutional lawyer Heinz Mayer comes in one of Dr. Johannes Hochleitner, the lawyer of founding convention member Helmut Fallmann, commissioned an expert opinion on a clear result: at least the convention members Claudia von der Linden and Johanna Pirker should have withdrawn from the convention immediately in order to guarantee its objectivity. The expert recommends that both of them be removed from office and the decision by which the founding president was appointed be reversed. In contrast, the BMBWF, as the supervisory authority, takes the opposite legal view and sees no starting point for supervisory intervention.
In detail, the report states the following:
Like the Supreme Court, the VwGH represents the legal opinion that the decision by impartial bodies is one of the principles of an orderly, constitutional procedure; the requirement of impartiality is relevant not only to the decision itself but also to the procedure leading to that decision. According to the case law of the VwGH, the fact that biased organs are excluded from all administrative activities results “from the nature of the rule of law”.
breach of the duty of disclosure
In the present context, this means that each member of the founding convention was obliged, when processing the procedural item “appointment of the founding president”, to check for themselves whether there were any circumstances that might cast doubt on their full independence and impartiality; if the answer is yes, then this member must disclose his bias immediately and abstain from exercising his office.
This provision was violated by at least two members of the founding convention; Both Ms. Von der Linden and Ms. Pirker were qualified as biased using the standards presented.
Bias makes the appointment of the founding president unlawful
In summary, it can be assumed that Ms. Lindstaedt’s appointment was unlawful due to the participation of at least two biased convention members. In this context, it is also irrelevant that Ms. Von der Linden and Ms. Pirker did not take part in the decision-making process for the appointment of Ms. Lindstaedt. Participation in the previous procedure alone renders this appointment illegal; In the case of Ms. Von der Linden, the way she chaired the meeting at least justifies the objective appearance of her bias.
BMBWF must proceed with removal from office
According to the report, there are considerable doubts that the founding convention in this composition is able to make a factual, objectively impartial decision. In any case, Ms. Von der Linden and Ms. Pirker would have to be relieved of their office as part of the supervisory process. The resolution by which Ms. Lindstaedt was appointed founding president would also have to be annulled.
Resignation of Helmut Fallmann
Helmut Fallmann takes the report as an opportunity to resign as a member of the founding convention with immediate effect.
“As a citizen and entrepreneur, I am convinced that there is no alternative to the rule of law. That is my only motive why I cannot accept the illegal processes surrounding the composition and activities such as the election of the founding president. The report by Univ. Prof. Heinz Mayer supports my legal opinion in full. In numerous discussions, however, I have found that despite the obvious shortcomings of those responsible and the supervisory authority, there is no interest in the establishment of a legally compliant composition of the founding convention. It is therefore impossible for me to continue to work in the founding convention,” Fallmann explains his decision and finally emphasizes: “Of course, I wish the Digital-Uni Linz a successful development, because Austria and Europe need this lighthouse to master the digital transformation of economy and society. “
Questions & contact:
DDr. Heinz Mayer
0676 / 885 335 544
www.heinz-mayer.com
