The Constitutional Court of Austria

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History of the Constitutional Court

1867 to 1919 – Precursors of the Constitutional Court in the Constitutional Monarchy: Imperial Court – State Court

The Constitutional Court has its origin in the 1867 Constitution of the Austro-Hungarian Monarchy. This so-called December Constitution, which transformed Austria into a constitutional monarchy, comprised a number of important constitutional laws, among them the “Basic Law on the General Rights of Nationals”, which is still in force today and remains the only genuinely Austrian catalogue of fundamental rights. The Imperial Court, the precursor of today’s Constitutional Court, was established at the same time.

The Imperial Court owes its special importance to a number of institutional peculiarities that still exist today and distinguish the Austrian Constitutional Court from other constitutional courts. The Court’s powers were limited to decisions in certain conflicts of jurisdiction, certain pecuniary claims against and between territorial authorities, and complaints of citizens regarding violations of their “political” rights. They did not include the power to review the constitutionality of laws.

Also in 1867, a State Court was established for the purpose of deciding in cases of ministerial impeachment, but it was never called upon to pronounce on such a case.

1919 – Transition to a republican constitution: the Constitutional Court of the Republic of German-Austria

The Constitutional Court of the Republic of German-Austria was set up in 1919. It took over the functions of the Imperial Court and the State Court. Moreover, it was furnished with the power to review laws. However, this power was limited to the review of laws adopted by provincial assemblies and could only be exercised upon the request of the state government.

1920 to 1934 – The First Republic: the Constitutional Court based on the Federal Constitutional Law of 1 October 1920

The Constitutional Court, as it exists today, was set up by virtue of the Federal Constitutional Law of 1 October 1920. The Court not only assumed all the functions exercised by the Imperial Court and the State Court at the time of the Monarchy, but was also furnished with the power to review laws for their constitutionality.

With this novel institution created by the Constitution, the newly established Republic of Austria set standards for the rest of the world. From the very beginning, it was clearly understood that, in terms of legal policy, the Court’s power to review the constitutionality of laws adopted by Parliament would be by far its most important responsibility.

At the time of its establishment, the Austrian Constitutional Court was practically the only court of its type worldwide. The only other country that had set up a constitutional court – even a few months earlier than Austria – was the then Czechoslovak Republic, but this court never achieved any practical importance. In 1921, the Principality of Liechtenstein established a constitutional court, which was called “State Court”. It was only decades later, in the second half of the 20th century, that the so-called “Austrian model” of institutionalized judicial review of laws prevailed all over the world.

The introduction of a judicial review of laws also added a new dimension to the protection of fundamental rights. With the Constitutional Court being given the power to repeal laws as unconstitutional, it was made clear that the fundamental rights enshrined in the Constitution provide a yardstick for the constitutionality of laws and, as such, are binding for the legislator. Therefore, a law that violates fundamental rights has to be repealed by the Constitutional Court as unconstitutional, in particular if the law allows disproportionate interferences with a fundamental right.

In 1925 and 1929, the Constitutional Court saw its powers strengthened and extended. The 1929 amendment to the Federal Constitutional Law resulted in far-reaching changes in the constitutional order. The primary goal of the amendment was to strengthen the position of Austria’s Federal President as a counterweight to Parliament. In an effort to “depoliticize” the Constitutional Court, modalities for the appointment of members and substitute members were introduced which, to a large extent, still apply today. However, this amendment to the Constitution was not able to ease the tense political atmosphere prevailing in Austria at that time. In the wake of a controversy over a vote taken in the National Council on 4 March 1933, the three speakers of the National Council stepped down all at once. The federal government, stating that the National Council had opted for its “self-elimination”, prevented it from reconvening and from then on ruled through regulations on the basis of the 1917 War Powers Act – an authoritarian regime that excluded the legislative bodies. Over 100 petitions for the review of such regulations were submitted to the Constitutional Court in the course of 1933. However, a government regulation – also based on the War Powers Act – prevented the Court from taking decisions in its regular composition. Thus, the Constitutional Court was paralyzed as well (“elimination of the Constitutional Court”).

1934 to 1938 - Corporatist-authoritarian regime and annexation to the Third Reich: High Federal Court

The corporatist-authoritarian constitution of 1934 did away with the Constitutional Court, but provided for a High Federal Court, which was called upon to ensure the constitutionality of legislation and the lawfulness of the public administration, essentially exercising the functions of the former Administrative Court and the former Constitutional Court. After the annexation of Austria to the German Reich, the High Federal Court lost its constitutional powers.

Since 1945 – Restoration of Austria and the Second Republic: Constitutional Court

The Constitutional Court was re-established and restored to its pre-1933 powers in 1945; it resumed its activities in 1946.

In the course of the following decades, the jurisdiction of the Court was repeatedly extended and some of the legal provisions pertaining to its organization were modified.