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The Constitutional Court of Austria

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XVIth Congress of the Conference of European Constitutional Courts

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The Jurisdiction

In principle, the Constitutional Court cannot take action on its own. It has to rely on relevant applications being filed in the Court. Even if the justices are of the opinion that a certain law is problematic in the constitutional sense, they cannot act until a person or institution initiates a proceeding that enables the intervention of the Court. When an application (Antrag) or complaint (Beschwerde) is filed with the Constitutional Court, the Court is obliged to make a decision.

Who can apply to the Constitutional Court is explicitly regulated; take these important types of proceedings as examples. In general, anyone who feels that his constitutionally guaranteed rights have been infringed by a decree or through the application of illegal norms can apply to the Constitutional Court. If an individual initiates a proceeding, then this application must be done in written form and through an authorized attorney. To be successful, however - depending on which article of the federal constitution the application is based upon - other requirements have to be fulfilled, such as the exhaustion of all other stages of appeal (the decree can no longer be appealed to a higher administrative authority; for example, the decree of a federal minister or an Independent Administrative Panel).

Where the constitutional review of norms is concerned, the possibility of a so-called "one third motion" (Drittelantrag) is crucial. This allows a third of the members of the National or Federal Council, as well as a state council to enable the intervention of the Constitutional Court. The federal government can combat state legislation just as every state government can battle federal laws. Other institutions that can apply to the Constitutional Court are, - for example, for proceedings concerning the review of the legislature - include the Administrative Court, the Supreme Court, the appellate courts or the Independent Administrative Panel (Unabhängiger Verwaltungssenat) . They are all obliged to contest legislation that they have to apply, but consider unconstitutional. Most frequently, however, the Constitutional Court itself, during the review of a decree, initiates a constitutional review proceeding, if it has reservations about the legality of the norm it would have to apply. Individuals can file an application to have a piece of legislation or a regulation reviewed if they are directly affected and if it is unreasonable for them to choose another path to protect against the claimed violation of law.

The core jurisdiction of the Constitutional Court consists of:

  • Special administrative jurisdiction (Sonderverwaltungsgerichtsbarkeit)
    (Article 144 of the Federal Constitutional Law (Bundes-Verfassungsgesetz; B-VG)

    The Constitutional Court has jurisdiction to review complaints against decrees (Bescheide) made by administrative authorities. In doing so, it must determine whether the constitutionally guaranteed rights of the affected person have been infringed or whether the application of the law itself has been unlawful. Such a complaint can be brought to the Constitutional Court only after all other stages of appeal have been exhausted. In principle, the Constitutional Court exercises its control function only in retrospect (ex post). In appropriate cases, the court may grant so-called "temporary suspension" (aufschiebende Wirkung). If granted by the Constitutional Court, then the enforcement of the disputed decree will be temporarily suspended until the justices of the Court have made a final decision. This "temporary suspension" plays an important role in immigration law, for instance. Complaints against decrees comprise the majority of Constitutional Court proceedings.

  • Complaints against decisions by the Asylum Court (Asylgerichtshof)
    (Art. 144a B-VG; §§ 82 bis 88a VfGG)

    The Constitutional Court has jurisdiction to review complaints against decisions made by the Asylum Court (Asylgerichtshof) if constitutionally guaranteed rights are affected.

  • The review of norms (Normprüfung)
    (Art. 139 to 140a B-VG, as well as § 24 para. 11 of the Law on Environmental Risk Assessment)

    This is the core of every constitutional review. The Constitutional Court is the state body that is authorized to examine regulations, re-enactments of laws, the laws themselves and state treaties. The procedure of legal examination involves the Constitutional Court passing judgment as to the constitutionality of federal or state laws.

  • Conflict of jurisdiction (Kompetenzkonflikt) (Art. 138, 126a and 148f B-VG)

    In situations of dispute, the Constitutional Court has to clarify whether a certain matter is to be dealt with by the federation or by one of the state governments. The Court also adjudicates jurisdictional conflicts between courts or between courts and administrative authorities. In addition, the Constitutional Court decides disputes regarding the extent of the review powers of the Audit Office (Rechnungshof) and the Ombudsman's office (Volksanwaltschaft).

  • Jurisdiction in matters of pecuniary claims under public law against the federation, a federal state or a community
    (Art. 137 B-VG)

    The Constitutional Court examines pecuniary claims against the federation, federal states, municipalities and associations of municipalities. This authority is especially important when considering the claims of regional administrative bodies within the framework of financial equalization (Finanzausgleich).

  • Jurisdiction in electoral matters (Wahlgerichtsbarkeit)
    (Art. 141 B-VG)

    In a democratic state it must be possible to examine the legitimacy of elections. Therefore, all important elections, referenda, consultative referenda or people's initiatives can be challenged at the Constitutional Court. An illegality in the electoral process can result in the annulment and repetition of the entire election or part of the election. However, this is only the case if the illegality could have influenced the results of the election. The Constitutional Court also determines whether or not a person should lose a seat he has already acquired (such as a seat in the National Council).

  • Jurisdiction in impeachment cases
    (Art 142 and 143 B-VG)

    The Constitutional Court is authorized to judge culpable violations of laws by the highest bodies of the Republic. In such cases, for instance, judgment is passed over charges against the federal president, federal ministers and members of the individual state governments.