The Constitutional Court of Austria

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Functions of the Constitutional Court

The functions of the Constitutional Court are laid down exhaustively and conclusively in the Federal Constitution. The most important of these functions are briefly outlined in the following.

Judicial review (Art. 140 of the Federal Constitutional Law)

The review of laws represents the core of constitutional jurisdiction. However, the Constitutional Court is not free to review, at its own discretion, any legal provision for its constitutionality and to repeal it if it is found to be unconstitutional. The Court’s review function is limited to cases in which a review has been applied for by a state body or a duly authorized individual, or to provisions to be applied by the Court itself in a pending law suit.

Within the framework of its abstract review of legal norms, the Constitutional Court pronounces on the constitutionality of laws adopted at provincial level upon application of the federal government, and of laws adopted at federal level upon application of the government of a province. The constitutionality of federal laws can be challenged by one third of the members of the National Council or the Federal Council; one third of the members of a provincial parliament can challenge the constitutionality of a law adopted by the province concerned, if such measure is provided for in the constitution of the province.

Within the framework of its concrete review of legal norms, the Supreme Court and any competent court of second instance, the first-instance administrative tribunals and the Administrative Court (as of 1 January 2015 any court) are authorized and obliged to submit a petition for judicial review to the Constitutional Court if doubts have arisen about the constitutionality of a legal provision to be applied in law suits pending at these courts.

As of 1 January 2015, if no petition for judicial review is submitted to the Constitutional Court by a court of law, any individual claiming that his/her rights as a party to a law suit decided by such court of first instance have been violated is entitled to challenge the constitutionality of a law within the framework of legal remedy sought against the court decision. Under certain conditions, an individual also has the right to address his/her challenge directly to the Constitutional Court, i.e. if he/she claims that his/her rights have been directly violated due to the unconstitutionality of the law, and if the law has taken effect for the individual concerned without a decision having been taken by a court or an administrative decision having been issued. Given the subsidiary character of the so-called “individual petition”, the Constitutional Court applies very strict criteria in deciding on its admissibility.

In the absence of a petition, the Constitutional Court itself can take the initiative to review a legal provision to be applied in a law suit at the Constitutional Court for its constitutionality.

Apart from the exceptional case outlined below, a judicial review performed by the Constitutional Court is always an ex-post review, i.e. it is performed after the promulgation of the law.

As a matter of principle, the repeal of a law found to be unconstitutional is only effective for the future, the only exception being the case that caused the Constitutional Court to initiate the judicial review procedure: The law in question is not to be applied to this case on any account. Moreover, the Constitutional Court may decide, at its own discretion, to extend the effect of the case that triggered the judicial review to other cases that occurred in the past. The Constitutional Court also has the right to set a deadline for the repeal to take effect, which must not exceed eighteen months. During that period of time, the law found to be unconstitutional is “immunized” and therefore has to be applied; pending its repeal, the law cannot be subject to another challenge before the Constitutional Court.

The example of judicial review clearly shows that the Constitutional Court is positioned at the borderline between the law and politics. For the Constitutional Court, the Constitution, i.e. a set of legal provisions, is the yardstick of constitutionality and the one and only basis for its decisions. Never will the political expediency of a law be invoked as a criterion in the Court’s judicial review. However, many of the provisions of the Constitution are worded in very general terms. In its interpretation of these provisions and its assessment of the constitutionality of a law, the Constitutional Court therefore often has a broad range of options to consider, which may depend on the values it upholds. Nevertheless, it has to arrive at a legally binding decision based solely on its legal opinion and must not let itself be guided by considerations of political opportuneness. However, decisions taken by the Constitutional Court may have substantial political implications, especially when it comes to the judicial review of legal acts adopted by Parliament as the democratically legitimized legislator. The Constitutional Court has to respect the political freedom of the legislator, but at the same time it also has to safeguard the supremacy of the Constitution.

There is another peculiarity to be considered in judicial review: Pursuant to Austrian constitutional law, any amendment to the Constitution affecting its fundamental principles, i.e. democracy, the republican system of governance, the rule of law and the federal state, requires not only a two-thirds majority in Parliament, but also a majority of votes cast in a referendum. In view of this situation, the Constitutional Court is also called upon to review the compatibility of the provisions of federal constitutional laws with these fundamental principles of the Constitution. If a provision of constitutional law is in conflict with one of these principles and was adopted by a two-thirds majority of Parliament without a majority of votes cast in a referendum in favour of such provision, it has to be repealed.

Review of regulations (Art. 139 of the Federal Constitutional Law)

The Constitutional Court also has to review regulations for their legality. Essentially, the above statements on judicial review apply mutatis mutandis.

Review of state treaties (At. 140a of the Federal Constitutional Law)

Pursuant to the Federal Constitution, the Constitutional Court is also called upon to review state treaties for their lawfulness (constitutionality or legality). The procedures to be applied and the right to submit a petition for review depend on the status of the state treaty at national level and are subject to the rules on the review of laws and regulations. However, the Constitutional Court is not in a position to invalidate a state treaty that has been found to be against the law; it can only establish its unconstitutionality or unlawfulness. A state treaty that has been pronounced unconstitutional or unlawful must no longer be applied by the entities of the state.

Review of rulings by the administrative courts of first instance (Art. 144 of the Federal Constitutional Law)

The Constitutional Court has the important task of pronouncing on complaints against rulings by the administrative courts of first instance (but not by the Administrative Court). In such a complaint, the appellant may claim either the violation of a constitutionally guaranteed right through the ruling, or the violation of rights through the application of an unlawful general norm underlying the ruling, above all an unconstitutional law. If the Constitutional Court shares the doubts raised about the norm in question, it will initiate a judicial review procedure.

The Constitutional Court is not the only body endowed with the right to review rulings by the administrative courts of first instance. The Federal Constitution also calls upon the Administrative Court to do so. However, the yardstick to be applied by the Administrative Court is not the Constitution, but rather the ordinary law in question.

The Constitutional Court has the authority to reject such complaints if they have no chance of success or if a decision on the complaint cannot be expected to clarify a constitutional issue. Upon application by the appellant, such complaints can be transferred to the Administrative Court for decision.

Decisions in conflicts of jurisdiction (Art. 138, para. 1, of the Federal Constitutional Law)

The Constitutional Court decides in conflicts of jurisdiction arising under constitutional laws between courts and administrative authorities, between courts of law and administrative courts of first instance or the Administrative Court, between the Constitutional Court and all other courts, between the federal government and a provincial government, or between provincial governments.

Establishment of jurisdiction (Art. 138, para. 2, Art. 126a, Art. 148f of the Federal Constitutional Law)

Upon application of the federal government or a provincial government, the Constitutional Court has to establish whether an intended act of legislation or enforcement is within the jurisdiction of the federal government or the provincial government. The establishment of jurisdiction by the Constitutional Court serves to clarify issues of jurisdiction in the federal state and to prevent disputes. This is the only case of an ex-ante review of norms by the Constitutional Court.

Furthermore, the Constitutional Court decides in differences in opinion between the Court of Audit or the Office of the Ombudsperson, on the one hand, and the governments and legal entities concerned, on the other hand, interpreting legal rules governing the competence of the Court of Audit and/or the Office of the Ombudsperson and establishing their jurisdiction.

Electoral jurisdiction (Art. 141 of the Federal Constitutional Law)

In terms of democratic governance, electoral jurisdiction is a particularly important task of the Constitutional Court. The Court decides on the lawfulness of certain elections, such as the election of the Federal President, elections to the general representative bodies (National Council, Federal Council, provincial parliaments, municipal councils), the European Parliament, the representative bodies of the chambers and the provincial governments, as well as elections of mayors and executive officers of local governments.

The Constitutional Court has to allow an election to be challenged if the alleged unlawfulness of an electoral procedure has been established and has been found to have had an impact on the outcome of the election. In such case, the Constitutional Court will declare the electoral procedure to be null and void as of the stage at which it has been found to be unlawful.

Furthermore, the responsibility for deciding on challenges to the results of popular initiatives, plebiscites, referenda and European citizens’ initiatives has been conferred upon the Constitutional Court.

The Constitutional Court also decides on the loss of seats by members of a general representative body, members of the European Parliament or members of statutory bodies of a chamber, and on rulings by administrative bodies resulting in the loss of seats.

Jurisdiction over entities of the state (Art. 142, 143 of the Federal Constitution)

The Constitutional Court also exercises the function of a State Court. As such, it decides on lawsuits brought against the supreme entities of the state for culpable violation of the Constitution and/or the law in an official capacity. This relates, in particular, to the conduct in office of the Federal President, the members of the federal government and the provincial governments, as well as the governor of a province and the other members of the provincial governments in matters subject to indirect federal administration.

Judgements brought against such persons by the Constitutional Court result in the loss of office and, under aggravating circumstances, in the loss of political rights. In certain cases, however, the Constitutional Court merely establishes the fact of an infringement without taking any further measures. The practical significance of this function is minimal. Since 1920, there have only been three proceedings of this type, two in the era of the First Republic and one in 1985.

Additional functions of the Constitutional Court

  • Decisions on pecuniary claims against territorial authorities, which cannot be settled by legal procedure or by the ruling of an administrative authority (so-called “causal jurisdiction” – Art. 137 of the Federal Constitutional Law).

  • Decisions on certain disputes relating to arrangements pursuant to Art. 15a of the Federal Constitutional Law between the federal government and the provinces or among the provinces (Art. 138a of the Federal Constitutional Law).

  • Decisions on violations of international law (Art. 145 of the Federal Constitutional Law). The exercise of this function is subject to the adoption of a simple-majority federal law, which has, however, never been adopted.