Historic Case Law (Timeline)

In 1922, the construction of the crematorium at the Vienna Central Cemetery led to a conflict between the federal government and the government of the Province of Vienna: At that time, the Catholic church and clerical circles were strictly opposed to cremation, whereas the Social-Democratic Party took the opposite position. Federal Minister of Social Welfare Richard Schmitz of the Christian-Social Party therefore tried to prevent the start-up of the crematorium by way of an instruction given to Jakob Reumann, the Social-Democratic mayor of the City of Vienna and governor of the Province of Vienna. However, Mayor Reumann refused to follow the instruction. The federal government called upon the Constitutional Court pursuant to Article 142 of the Federal Constitutional Law, requesting clarification as to whether the matter of cremation was subject to indirect federal administration or to provincial administration. In its decision of 27 March 1923 (VfSlg 206/1923), the Constitutional Court ruled in favour of Mayor Reumann.

The Constitutional Court decided that the matter was within the jurisdiction of the federal government and that the governor of the province was therefore bound to follow instructions issued by the federal minister. At the same time, however, the Court stated that the division of power in this field – with the provisions of the 1867 Imperial Constitution being in force until 1925 – was extremely complicated. In the Court’s opinion, the governor of the province, due to this lack of clarity, had erroneously assumed that the matter was within the jurisdiction of the province and had therefore not followed the instruction. He therefore had to be acquitted on account of this excusable legal error.

The period after the First World War was marked by increasing radicalisation at the universities. With German-nationalist tendencies among students and professors gaining in intensity, Jewish, social- democratic and liberal colleagues became targets of hostilities. In this atmosphere of heated controversy, the Academic Senate of the University of Vienna took up an idea first expressed by Rector Wenzel Gleispach, a supporter of National Socialist ideas, and on 20 March 1930 adopted a “Student Regulation of the University of Vienna”, which was promulgated on 8 April 1930. In substance, its purpose was to group students of “the same ethnic origin and mother tongue”, regardless of their nationality, in racially defined “student nations”. These were to be based on ethnicity and named accordingly. For Jewish students, the regulation meant that they were excluded from the “German student body”.

In its decision of 20 June 1931 (VfSlg 1397), which was publicly communicated on 23 June 1931, the Constitutional Court, acting upon a petition submitted by the criminal court of the 1^st District of Vienna, repealed the Student Regulation on grounds that it lacked a legal basis. In the Court’s opinion, new types of associations (such as the student nations) could not be created by way of a regulation that violated the provisions of the law on associations. There was no reason for the Court to invoke the argument of equal treatment, but it stated in an obiter dictum (“by the way”) that “the classification of students in groups, […] including those based on nationality, […] is not in conflict with the principle of equality of all citizens before the law, provided that these groups have the same rights and duties and that inclusion in such groups corresponds to the principles of constitutional law.”

As soon as the Court’s decision to repeal the regulation became known, massive riots broke out at the University of Vienna, where National Socialist students violently attacked their Jewish and socialist colleagues.

A few days later, Rector Hans Uebersberger and Vice-Rector Gleispach were celebrated as “pioneers of German student rights” in a National Socialist torchlight march.

In 1957, Otto Habsburg-Lothringen, son of the last Austrian Emperor Charles, was issued a certificate confirming his Austrian citizenship. However, under the Habsburg Law (State Law Gazette No 20/1919) he was still banned from entering Austria. A note in his passport said that the document did not entitle him to enter into or transit through Austria. The political and legal controversies over the Habsburg matter were even brought before the Constitutional Court and the Administrative Court. At the height of the crisis, the Socialist Party of Austria spoke of a “lawyers’ coup d’état”. It was not until 1966 that Otto Habsburg set foot Austrian territory for the first time.

The roots of the conflict dated back to the early years of the Republic. After the First World War, the disintegration of the Austro-Hungarian Monarchy and the establishment of the Republic of German-Austria, the Habsburg Law was passed in 1919 in the interest of “the security of the Republic”. Under this law, former Emperor Charles was unconditionally “banished from the country”, whereas the right of the other members of the House of Habsburg-Lothringen, the ruling dynasty of the Monarchy, ever to return to Austria was subject to certain conditions. Pursuant to section 2 of the Habsburg Law, they had to sign a declaration of loyalty to the Republic and explicitly renounce their membership of the House of Habsburg-Lothringen and all sovereign rights emanating therefrom. It was up to the State Government, upon consultation with the Main Committee of the National Assembly (now: the Federal Government in consultation with the Main Committee of the National Council), to decide whether this declaration was to be regarded as sufficient.  The crucial moment came at the beginning of the 1960s. On 5 June 1961, Otto Habsburg-Lothringen submitted the following declaration to the Federal Government, requesting a statement by the latter that the declaration was deemed sufficient pursuant to section 2 of the Habsburg Act:

“I, the undersigned, herewith declare, pursuant to Section 2 of the Act of 3 April 1919, State Law Gazette of the State of German-Austria No. 209, that I explicitly renounce my membership of the House of Habsburg-Lothringen and all sovereign rights emanating therefrom, and profess myself to be a loyal citizen of the Republic. In witness whereof I have signed this declaration by my own hand. Pöcking, 31 May 1961. Otto Habsburg-Lothringen“.

The Federal Government was unable to agree on a joint position. In a paragraph subsequently added to the minutes of the Ministerial Council meeting of 21 June 1961, it was stated that the application was herewith deemed denied. Finally, an official note was published in the “Wiener Zeitung” of 14 June 1961: “In the absence of an agreed position and given the constitutional law in effect, the declaration is deemed to be rejected.” The declaration was never transmitted to the Main Committee of the National Council. Nor was Otto Habsburg-Lothringen, as the person concerned, ever informed of the result of his application, either orally or in writing.

Otto Habsburg-Lothringen filed a complaint with the Constitutional Court against the “resolution” of the Federal Government pursuant to Article 144 of the Federal Constitutional Law. The Constitutional Court rejected the complaint by a decision pronounced on 16 December 1961 (VfSlg 4126), stating that the body called upon to decide on this matter, i.e. the “Federal Government in consultation with the Main Committee of the National Council”, was not an administrative authority in the meaning of Article 144 of the Federal Constitutional Law, and that, consequently, this was not a case brought against an administrative notice (but rather – though never stated explicitly – a kind of sovereign act outside the scope of the courts). Arguing that the Federal Government had to act in agreement with the Main Committee of the National Council, which was not an administrative body, as its members exercised a constitutionally guaranteed free mandate and therefore were not bound by the legal opinion of the Constitutional Court, the Court declared the matter to be outside the scope of its jurisdiction.

Otto Habsburg-Lothringen’s next step was to lodge a complaint for undue delay of proceedings with the Administrative Court, which, having convened an enlarged senate, finally (in lieu of the Federal Government) pronounced its decision on 24 May 1963 (VwSlg 6035 A/1953), stating that the declaration submitted by Habsburg-Lothingen was to be taken as sufficient, whereby the complainant’s ban to enter the country was deemed to be lifted. The Administrative Court considered the participation of the Main Committee of the National Council to be derogated.

This decision triggered a storm of protest on the part of the Socialist Party (“a lawyers’ coup d’état”) and the Freedom Party. Strikes, protest demonstrations and furious exchanges in Parliament followed. An authentic interpretation of section 2 of the Habsburg Law as a constitutional act re-established the necessary agreement between the Main Committee of the National Council and the Federal Government (Federal Law Gazette 172/1963). Otto Habsburg-Lothringen entered Austria for the first time in 1966. However, the Habsburg crisis was not fully resolved until 1972, when Federal Chancellor Bruno Kreisky (SPÖ) shook hands with Otto Habsburg-Lothringen on the occasion of a meeting of the Pan-European Movement in Vienna.

Subsequently, the Constitutional Court’s reasoning, as outlined in VfSlg 4126/1961, was subject to frequent criticism: One of the arguments raised against it was that the refusal of entry into Austria could have been justified by the fact that a resolution by the Federal Government had never been adopted, given that according to prevailing opinion Ministerial Council decisions must be unanimous in order to be effective.

When Walter Antoniolli, who had been President of the Constitutional Court since 1958, announced his resignation on 3 October 1977, he referred to “severe differences of opinion with the majority of the members of the Constitutional Court” and the “position taken by the Court in a fundamental issue of jurisprudence”, without giving further specifics. However, rumours were circulating that President Antoniolli did not want to have a part in the Court’s decision, pronounced on the same day, on the 1975 University Organization Act and the end of the traditional university with full professors in control of all university matters.

With the adoption of the 1975 University Organization Act, prepared by then Minister of Science Hertha Firnberg (Socialist Party of Austria), full professors, who previously were the sole decision-makers in university affairs, lost their predominant position. From then on, junior faculty and students also had a say on the basis of a one-third-parity model.

University professors were vehemently opposed to the 1975 University Organization Act. When several of them filed a complaint with the Administrative Court against administrative decisions taken by the newly appointed bodies, the Administrative Court submitted a petition to the Constitutional Court in April 1976 to repeal the provisions of the 1975 University Organization Act regarding the tripartite composition of the Study Commissions (sect. 57ff) on the grounds of anti-constitutionality.

In its decision of 3 October 1977 (VfSlg 8136), the Constitutional Court did not follow the Administrative Court’s line of argumentation. The Constitutional Court maintained that tripartite participation conflicted neither with the freedom of teaching nor with the principle of self-government of the universities. In the Court’s opinion, the further development of the autonomous sphere of action of the universities through the assignment of new tasks on the basis of a simple-majority act was permissible, as was the extension of the group of persons participating in academic affairs. This decision on the 1975 University Organization Act was one of the most severely criticized after 1945. 

In the perception of the public and the media, there was an obvious connection between the decision on the University Organization Act and the resignation of President Antoniolli, who was a full professor at the Universities of Innsbruck and Vienna. His term of office would have ended on 31 December 1977, but he stepped down three months before the end of his mandate. 

The Feast of Immaculate Conception, a Catholic holiday celebrated on 8 December, led to the escalation of the conflict over shop opening hours in 1984. Wilfried Haslauer sen. (Austrian People’s Party), Governor of the Province of Salzburg, allowed the retail shops in his province to be open on that day. Minister of Social Affairs Alfred Dallinger (Socialist Party of Austria) tried to amend or repeal the governor’s regulation, which was based on sect.13 of the Act on Rest Periods, by way of an instruction issued within the framework of Austria’s system of indirect federal administration. When Governor Haslauer sen. ignored the instruction, the Federal Government initiated proceedings before the Constitutional Court pursuant to Art.142 of the Constitution.  The Court found Governor Haslauer guilty, but decided not to impose any sanctions.

In the oral announcement of its decision of 28 June 1985 (VfSlg 10.510; see also the ORF news broadcast on the case), the Constitutional Court confirmed that the Federal Minister of Social Affairs had been entitled to issue the instruction, that the Governor had been culpable in not following the instruction, and that there was no legal error which the Governor could invoke to his advantage. However, the Court regarded the Governor’s infringement of the law as a minor offense, given that he had felt encouraged by comments made by Minister of Trade Norbert Steger (Freedom Party) and had acted out of honorable motivations of social and economic policy. The Constitutional Court therefore abstained from removing Governor Haslauer from office, which the Federal Government had originally filed for.

Wilfried Haslauer sen. served as Governor from 1977 to 1989. In the proceedings before the Constitutional Court he was represented by his son Wilfried jun., who has been in office as Governor of the Province of Salzburg since 2013.  

“In a society marked by the respect for freedom….. citizens are under no obligation, barring good reasons, to disclose what they do in their free time, which books they buy, which newspapers they subscribe to, what they eat and drink, and where they spend the night. Even though such matters are not usually kept secret and, depending on the circumstances, easily become known to a limited group of people, it is at the discretion of the person concerned to decide whether he/she is willing to disclose such information, which information it will be and to whom it will be disclosed. This also holds for an entirely inconspicuous private life.” This clear statement by the Constitutional Court is contained in its decision to repeal certain provisions of the Vienna Entertainment Tax Act (14 March 1991, VfSlg 12.689), which required operators of videotheques to keep detailed records of their customers’ patterns of use.

In 1986 and 1987, the Vienna Provincial Parliament decided to impose entertainment tax on the renting of film video cassettes, commonly called “video lending”. While cinema tickets had long been subject to such tax, it was now decided, for reasons of fair competition, to impose the tax also on video cassette rental. The tax was designed as a direct tax imposed on the borrower but to be collected and remitted to the tax authority by the videotheque operators. The latter were liable for payment of the tax and, additionally, were required to “keep records indicating, at any point in time, the operator’s stock of programme storage media and films as well as when, by whom, for how long and at which price a programme storage medium or film was rented”, this being the provision at issue in the case brought before the Constitutional Court.  Apparently, the Municipality of Vienna had perceived a risk of untaxed video rentals and the avoidance by traders of taxation on parts of their income.

Given that the Constitutional Court regarded the comprehensive disclosure and recording obligations as inseparably linked with the obligation to pay tax, it excluded the renting of video cassettes from entertainment tax altogether. The judges deemed the tax, in the form imposed, to constitute an infringement of the right to respect for private and family life enshrined in Article 8 of the European Convention on Human Rights (ECHR), “as it entails an interference with a person’s private life, which is unnecessary in order to tap this revenue source…”. The Court ruled that for the tax to fulfil its fiscal purpose, it was not at all necessary to know exactly who rented which film when and where. To underline this position, the Constitutional Court compared the entertainment tax imposed on customers of videotheques with the excise tax on the consumption of ice-cream and beverages: As an indirect tax, the latter was imposed on the sale by the trader rather than on the product’s consumption by the consumer, “without having the tax losing any of its effect, and without making its collection dependent on detailed records indicating to whom the ice-cream was sold or the beverage served.” 

In Austria, the ECHR was granted the rank of a constitutional law in 1964 (Federal Law Gazette No. 59/1964). The Vienna entertainment tax was abolished once and for all in 2017, due to the fact that revenues from this tax had decreased sharply. Meanwhile, videotheques have almost completely disappeared, given that video cassettes, CD-ROMs and Blu-rays have been replaced by the Internet.

Ten per cent: This was the minimum percentage of Slovene-speaking inhabitants in a Carinthian municipality required for a bilingual place name sign to be mandatory, as stated in the decision pronounced by the Constitutional Court on 13 December 2001 (VfSlg 16404). Previously, the Ethnic Groups Act had required a minimum of 25%. In the wake of its decision, the Constitutional Court found itself at the centre of a public debate of unprecedented intensity. Politicians of the Province of Carinthia, in particular, launched vehement attacks against the Constitutional Court and its President Ludwig Adamovich. The political agreement reached after ten years and several further Constitutional Court decisions finally set the minimum percentage at 17.5%.

Immediately after the Court’s decision in 2001, however, there was no agreement in sight. The Governor of the Province of Carinthia at the time, Jörg Haider (Freedom Party), supported by the Freedom Party at federal level, reacted with violent verbal attacks. He reproached Constitutional Court President Ludwig Adamovich for his “unworthy behaviour” and called for his resignation. His censure was directed at talks allegedly held by Adamovich with the President of Slovenia about the issue of place name signs prior the contested decision. President Adamovich refused to step down, but proposed that the allegations against him be clarified in impeachment proceedings. On 6 January 2002, the Constitutional Court (in the absence of President Adamovic) decided not to institute such proceedings (VfSlg 16408).

For the Court, however, the issue of place name signs was far from resolved. Attempts in subsequent years to arrive at a political solution (“Carinthian Consensus Conference”) failed. In the meantime, the Constitutional Court ruled that additional bilingual place name signs had to be put up (e.g. Bleiburg/Pliberk, Ebersdorf/Drveša vas, VfSlg 18044, 18318). Governor Haider tried to circumvent these decisions by having place name signs removed from their original location or replaced by signs in German with the Slovene name added on a smaller sign. None of these variants were acceptable to the Constitutional Court (e.g. VfSlg 17895, 19116).

The last in the long series of decisions was pronounced on 25 February 2011 (VfSlg 19313). A few weeks later, a political agreement was finally reached between the Federal Government (State Secretary Josef Ostermayer, Social-Democratic Party), the Province of Carinthia (Governor Gerhard Dörfler, Alliance for the Future of Austria) and representatives of the Slovene minority. On 6 July 2011, the National Council enacted the solution of the conflict by amending the Ethnic Groups Act (BGBl. I 46/2011). The provisions on bilingual place name signs as well as the list of municipalities concerned have since ranked as constitutional law. As a result of the Constitutional Court’s decisions, Carinthia now has 164 bilingual place name signs in municipalities with a Slovene-speaking population of at least 17.5%. Lists of this type were also drawn up and adopted for municipalities with Croatian and/or Hungarian minorities in Burgenland.

The issue of the Slovene-speaking minority in Carinthia is historically charged. Towards the end of the First World War, troops of the newly constituted Yugoslavia (called SHS in Serbo-Croatian: State of Slovenes, Croats and Serbs) occupied parts of Carinthia. The territorial conflict was finally resolved by the Carinthian plebiscite on 10 October 1920, in which a majority of votes were cast in favour of the contested areas remaining with Austria. Many years later, the protection of minorities was included in the Austrian State Treaty of 1955. Under Article 7, the languages of the Slovene and Croat minorities in the mixed-language regions of Carinthia, Burgenland and Styria enjoy the status of official languages, alongside German. Moreover, bilingual “topographical terminology and inscriptions” are to be used.

To implement this provision, in 1972 the Social-Democratic government under Federal Chancellor Bruno Kreisky decided to set up bilingual place name signs in 205 Carinthian municipalities with at least 20% Slovene-speaking inhabitants. The situation escalated: Opponents joined forces in the notorious “Ortstafelsturm” and tore down the new place name signs, and the whole campaign came to a halt. Finally, the 1976 Ethnic Groups Act drew the line for bilingual place name signs at 25% of the population. The 1977 Topography Regulation provided for 91 bilingual place name signs, but not all of them were put up.

20 years later, a lawyer brought the issue of place name signs before the Constitutional Court. He challenged the validity of a speeding ticket, arguing that the boundary of the territory of St. Kanzian was not properly marked, as bilingual place name signs were missing. The Constitutional Court used the occasion to initiate ex-officio review proceedings and pronounced its decision G 231/01 (VfSlg 16404) on 13 December 2005.

In the public hearing on the challenge against the 22 May 2016 run-off election of the federal president, which was held by the Constitutional Court and lasted several days, the witnesses, one after another, made statements that, taken together, provided an overall picture. In the end, the Constitutional Court judges came to the conclusion that the rules for counting the postal votes had been violated in 14 Austrian electoral constituencies. This concerned around 77,000 votes – a number large enough for the irregularities to potentially influence the election result. In line with its long-standing jurisprudence, the Constitutional Court therefore had to repeal the election. A second reason for the repeal was the fact that partial results had been communicated to the media ahead of time. Even though this had been common practice for decades, the question had never been referred to the Constitutional Court before.

In 2016, the Austrian population elected a new federal president. Norbert Hofer and Alexander Van der Bellen obtained the highest numbers of votes in the first round of the election, held on 24 April 2016, and were therefore the candidates in the run-off election held on 22 May 2016. In this second round, Van der Bellen obtained 50.3% of the votes cast, thus winning by a narrow margin. After the announcement of the official election results by the Minister of the Interior, the defeated candidate’s legal representative authorised to accept service filed an electoral challenge pursuant to Art.141 para.1 point (a) of the Constitution with the Constitutional Court. This challenge was based primarily on alleged procedural errors in the handling of postal ballots on the part of numerous district electoral authorities all over Austria.

The Constitutional Court then conducted comprehensive investigation proceedings, including the public hearing of oral evidence from 90 witnesses from all provinces. Given that sect.21 para.2, first sentence, of the Law Governing the Election of the Federal President requires a decision on an electoral challenge to be made within four weeks, the Constitutional Court was under considerable time pressure in view of the large number of evidence hearings. On 1 July 2016, Constitutional Court President Holzinger orally announced the decision,  W I 6/2016  (VfSlg 20.071). For the first time in history, the oral announcement was broadcast live on television by the Austrian Broadcasting Corporation (ORF).

The electoral challenge was allowed. The proceedings before the Constitutional Court had revealed that in 14 Austrian electoral constituencies, the constitutional principle of secret voting as well as provisions of the Law Governing the Election of the Federal President had been violated when establishing the result of postal voting. The purpose of these provisions is to preclude manipulation and abuse in the electoral process. In this case, it was determined that postal ballots had been opened by unauthorised persons or earlier than permitted under election rules. The established illegalities concerned approximately 77,000 votes. As the difference in votes between the two candidates was only around 30,000 votes, the infringement was substantial enough to potentially influence the election result.

The decision to repeal the run-off election was in line with the strict jurisprudence applied for decades. The Constitutional Court’s practice has always been to repeal elections if a violation of legal provisions aimed at precluding abuse and manipulation has been proven and the number of votes concerned was large enough for the violations to have potentially influenced the election result. In such cases, it has been the practice of the Court to repeal the election without speculating whether the violations of the law have actually resulted in manipulation. In the case of the election of the federal president, the repeal had to be nationwide, given that – unlike National Council elections or Provincial Parliament elections – postal ballots in this type of election are not allocated to the electoral constituencies of the voters. Therefore, in the case of a partial repeal, it could not have been excluded that some voters would not have been able to cast their votes at all while others would have been able to cast their votes twice.

The second reason for repealing the election was that the Ministry of the Interior had passed on information about the election results to the media and market research institutes prior to the close of the elections. The Constitutional Court found this practice to be in breach of the principle of “free elections” and the requirement of “purity of elections”. The purpose of such rules is to ensure that the result of the election reflects the true will of the electorate. Partial results had been passed on ahead of time for decades, but had never been the subject matter of an electoral challenge, so that the practice could not have been dealt with by the Constitutional Court before. This problem has been exacerbated primarily by modern communication possibilities through social media. If media reports on presumed close runs in elections are quickly disseminated, they may have an influence on voting behaviour.

The run-off election was held again on 4 December 2016: Alexander Van der Bellen was elected Federal President with 53.8% of the votes cast. The first date set for the repeat election at the beginning of October had had to be postponed due to the fact that defective glue had been used in the production of ballots for postal voting.