The Constitutional Court's decision was preceded by a dispute between the Association of Licensed Skipper Schools Austria (VKSÖ) on the one hand and the Austrian Sailing Association (OeSV) and the Motorboat Sports Association for Austria (MSVÖ) on the other.
The main issue was the recognition of boat licences issued by the VKSÖ. The two other associations did not want to see these recognised as equivalent to their own driving licences.
According to the Shipmasters' Training Association, however, the only difference is that the VKSÖ patent is an association patent, which cannot be regarded as a state patent because it is not (yet) mentioned separately in the law.
In fact, the ÖSV association licences and only these have been recognised by the Supreme Shipping Authority as a substitute for genuine official licences since 1981. Austrian insurers and charter companies abroad, especially in Croatia, also accept VKSÖ licences without any problems, according to association representative Wolfgang Koller.
The Constitutional Court has now ruled that individual legal regulations relating to the examination system for boating licences violate the principle of equal treatment and are therefore unlawful. The judges have given legislators until the end of this year to amend the relevant laws.
Reactions to the ruling in the neighbouring country vary. It is not yet clear how the responsible Ministry of Transport will react.
In the worst-case scenario, it is conceivable that there will no longer be any official Austrian coastal navigation licences at all in the future because, in the view of the lawyers, there is no obligation for Austria as a landlocked country.
Another scenario would be for the Ministry of Transport to explicitly designate individual (as in Germany) or several different national associations to be responsible for testing and issuing driving licences.
However, the ministry could also take the examination system completely into its own hands, in which case the examination fees would also remain with the state, according to another speculation.
Meanwhile, the OeSV is endeavouring to demonstrate composure. The association has only published a brief statement on the judgement on its website. It reads:
In its decision G 277/09, V 108/09-16 of 15 December 2010, the Constitutional Court annulled § 15 para. 2 of the Maritime Navigation Act and the relevant provisions of the Maritime Navigation Ordinance as unconstitutional. (...) The core of the repealed standards is the recognition of the certificates of competency issued by the OeSV and MSVÖ as official licences and the associated issuing of international certificates by the Federal Ministry of Transport, Infrastructure and Technology. The legislator is now required to reformulate Section 15 of the Maritime Navigation Act together with the associated ordinance provisions.
This finding in no way calls into question the OeSV's previous approach with regard to its training and examination criteria. All certificates of proficiency obtained by the end of this year in accordance with the current regulations and examinations will therefore continue to be recognised as official driving licences. (...)
Nevertheless, the association also seems to be a little unsettled. To be on the safe side, holders of older patents are advised to have them rewritten as soon as possible, as they could otherwise lose their validity. The OeSV statement literally states this:
However, we recommend exchanging licences issued before 2008 for a cheque card driving licence, as the amendment to the law could result in an expiry date for older licences.
At the end you promise:
The OeSV's interest in the ongoing discussions with the Supreme Navigation Authority will primarily be focussed on those candidates who may fall under the transitional provisions and should not suffer any disadvantages as a result. Furthermore, the OeSV will of course endeavour to ensure that the high international reputation of Austrian driving licences is maintained in the future, which presupposes an unchanged high quality in the training and examination system.
Pascal Schürmann
Editor YACHT
