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Functions

The functions granted to the Constitutional Court by virtue of the Constitution cover a broad field. They range from the judicial review of laws and regulations to the review of rulings by administrative tribunals, decisions in certain conflicts of jurisdiction, the settlement of disputes in matters relating to revenue sharing between the federal and provincial levels, the verification of elections, and jurisdiction over state entities at the highest level. The specific provisions governing proceedings before the Constitutional Court are contained, above all, in Part Two of the Constitutional Court Act (sections 36a to 93 Verfassungsgerichtshofgesetz - VfGG), as well as in a number of other statutes.

Videopreview

In this Video the former President of the Constitutional Court Gerhart Holzinger describes the most important functions of the Constitutional Court (Video only in German language)

In particular, the Constitutional Court renders decisions on:

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Complaints against rulings by administrative tribunals

Individuals who feel that their rights have been infringed upon through a ruling of an administrative tribunal may file a complaint with the Constitutional Court or appeal to the Administrative Court, or even seize both courts with the matter at the same time. The Constitutional Court is not empowered to review cases dealt with by the civil and criminal courts (judgements, decisions). 

As a precondition for the Constitutional Court to exercise its power to review a ruling by an administrative tribunal, the individual concerned has to claim either the violation of a constitutionally guaranteed right (Fundamental Rights) through the contested ruling and/or the violation of his/her personal rights through the application of an unconstitutional law or an unlawful regulation. It remains for the Administrative Court to establish whether the rights of the complainant (enshrined in simple-majority laws) have been violated through the ruling for other reasons. 

The complaint has to be filed with the Constitutional Court by electronic means by a lawyer within six weeks of service of the ruling. As a rule, the complainant has to petition for the ruling to be rescinded (or, in the case of a complaint exclusively claiming infringement of Art. 6 ECHR due to the excessive duration of proceedings, for a declaration that the infringement occurred). 

The complaint filed with the Constitutional Court has no suspensive effect, i.e. the contested ruling remains in effect regardless of the complaint. However, under certain circumstances, the Constitutional Court may decide in favour of a suspensive effect of the complaint, if so requested in the application (Section 85 VfGG). 

The Constitutional Court will decide either to rescind the contested ruling or to dismiss or reject the complaint. If a complaint does not have a reasonable chance of success or cannot be expected to result in the clarification of a constitutional issue, the Constitutional Court may decide to dismiss the case (especially by way of a simplified decision, usually with standard wording). If a case is dismissed or rejected, it is to be transferred – upon application by the complainant – to the Administrative Court, which will then decide, on the basis of its own powers, whether the ruling is in compliance with the simple-majority law in question.

Legal bases: Art. 144 B-VG; sections 82 to 88a VfGG

Unconstitutionality of laws 

One of the core tasks of the Constitutional Court is to pronounce on the constitutionality of laws adopted at federal and provincial levels. If the Court holds a law (a legal provision) to be unconstitutional, it has to repeal it. 

If the Constitutional Court is concerned that a legal provision to be applied in a case pending with the Court might be unconstitutional, it will ex-officio initiate review proceedings by adopting a so-called judicial review resolution. If the Administrative Court, an administrative tribunal or an ordinary court of law has doubts as to whether a legal provision to be applied in a case pending with that court or tribunal, it is obliged to apply to the Constitutional Court for the repeal of that provision.  The Constitutional Court also pronounces on the unconstitutionality of legal provisions upon application by an individual claiming that his/her rights have been directly violated, if the law has taken effect for the individual concerned in the absence of a court decision or an administrative decision (individual application). In addition, since 1 January 2015, any individual claiming that his/her rights as a party to a law suit decided by a court of first instance have been violated is entitled to challenge the constitutionality of a law within the framework of legal remedy sought against that court decision (application by a party to a law suit). 

Irrespective of a specific case, the following bodies are entitled to submit an application to the Constitutional Court for judicial review of a law (“abstract review of legal norms”): 

  • The Federal Government in respect of laws adopted at provincial level
  • Provincial governments in respect of laws adopted at federal level
  • One third of the members of the National Council or one third of the members of the Federal Council in respect of federal laws
  • One third of the members of a provincial parliament in respect of provincial laws (if such measure is provided for in the constitution of the province, as is the case in all Austrian provinces, except Lower Austria) 

The decision rendered by the Constitutional Court is either to repeal the provision found to be unconstitutional or – if the provision has already been declared null and void and the judicial review procedure has been initiated on the occasion of a specific case – to establish that it was unconstitutional. If the Constitutional Court arrives at the conclusion that the concerns raised were not justified, either the application will be rejected or the Court will pronounce in ex-officio proceedings that the provision will not be repealed as unconstitutional (or that it was not unconstitutional), depending on the constellation of the case. If the case cannot be taken up in substance for procedural reasons, the Court will decide to dismiss the application and/or to stop the ex-officio proceedings. 

The repeal of a legal provision has to be promulgated without delay by the Federal Chancellor and/or the Governor of the province. In principle, the repeal of a legal provision takes effect for the individual at 24:00 pm on the day of promulgation in the federal or provincial law gazette. However, the Constitutional Court may set a deadline for the “repair” of the provision, if its immediate repeal would result in serious practical problems. Thus, the legislator is given time to elaborate a new solution by the deadline set. In the meantime, the repealed provision remains in effect. The Court may also rule that the repealed provision is not to be applied any longer (“retroactive repeal”). This means that neither authorities nor courts are allowed to apply the provision in their assessment of a case that occurred before the provision was repealed. 

Under no circumstances is a repealed provision to be applied in the case that triggered the review.

Legal bases: Art. 140 B-VG; section 62 to 65a VfGG

Unlawfulness of regulations and re-publications

The Constitutional Court verifies the lawfulness of regulations issued by an administrative authority. 

If the Constitutional Court has doubts about the lawfulness of a provision of a regulation to be applied in a case pending with the Court, it initiates an ex-officio review procedure (Judicial Review Resolutions). If the Administrative Court, an administrative tribunal or another court has doubts about the lawfulness of a (provision of a) regulation that is relevant to its decision, they are obliged to apply to the Constitutional Court for (the provision of) the regulation to be repealed. Individuals are entitled to submit applications (individual application and application by a party to a law suit) under the same conditions. 

Irrespective of a specific case, the following bodies are entitled to apply for the review of a regulation by the Constitutional Court (“abstract review of legal norms”): 

  • The Federal Government in respect of regulations adopted at provincial level
  • Provincial governments in respect of regulations adopted at federal level
  • Local authorities in respect of regulations of the supervisory authority repealing a regulation by a local authority
  • Ombudspersons’ offices at federal and provincial level
  • The Federal Minister of Finance in respect of regulations by which a local government authority has imposed charges (section 10 Constitutional Act on Public Finance (Finanzverfassungsgesetz F-VG sect. 10 F-VG).  

Additionally, the Constitutional Court is responsible for the review of re-promulgations of laws and treaties (Art. 139a B-VG). In such a procedure, the Court examines whether the authorisation for re-promulgation has been exceeded. The proceedings and, in particular, the rights to file applications, are largely the same as in the review of regulations (sect. 61b VfGG).

Legal bases: Art. 139 B-VG; sections 57 to 61a VfGG

Unlawfulness of treaties

According to the Constitution, the Constitutional Court is also called upon to review treaties for their lawfulness (constitutionality or legality). Resolutions adopted by international organisations and secondary Community law (e.g. directives and regulations of the EU) do not qualify as “treaties” as defined in Art. 140a B-VG. The procedures to be applied and the right to apply for review depend on the status of the treaty at national level and are subject to the rules governing the review of laws and regulations. However, the Constitutional Court is not in a position to invalidate a treaty that has been found to be against the law; it can only establish its unconstitutionality or unlawfulness. A treaty that has been pronounced unconstitutional or unlawful may no longer be applied by the entities of the state. The Constitutional Court may set a deadline for such a decision to take effect in order to permit a “repair” of the treaty without interfering with Austria’s obligations under international law.

Legal bases: Art. 140a B-VG; section 66 VfGG

Challenges to Elections

Upon application, the Constitutional Court decides on the lawfulness of certain elections, i.e. 

  • Election of the Federal President
  • Elections to the National Council
  • Elections to the Federal Council
  • Elections to provincial parliaments
  • Elections to municipal councils (in Vienna: elections to district representative bodies)
  • Elections to the European Parliament
  • Elections to provincial parliaments
  • Elections to local government bodies (municipal senate, municipal council)
  • Election of mayors, heads of the district administration
  • Elections to a statutory body of a chamber representing sectoral interests that exercises a parliament-type function within the chamber. 

Depending on the type of election, elections may be challenged either by a group of voters that has submitted a list of candidates in due time through a representative authorised to accept service, or, under certain circumstances, by a candidate or one tenth of the respective elected body. 

The application has to be filed for the electoral procedure to be declared null and void (from the date of the claimed unlawfulness). In the case of elections to general representative bodies, the deadline for an electoral challenge is four weeks from the conclusion of the electoral procedure or from the date of service of the last-instance administrative decision to be obtained in the course of the electoral procedure. In the case of the election of the Federal President and elections to the European Parliament, the deadline is one week after publication of the result of the election in the Official Journal of Wiener Zeitung. Challenges submitted too late are rejected by a resolution of the Court.  

The Court may allow a challenge if an ineligible person was declared eligible and declare the election of that person null and void; it may allow a challenge if an eligible person was wrongly declared ineligible and, depending on the circumstances, consequently pronounce the election of another person null and void, in which case the election of that person is annulled. In the case of any other violation of the electoral procedure, the decisive question is whether it had an influence on the electoral result (i.e. whether the result was falsified or could have been falsified). If this is found to be possible, the entire electoral procedure or specified parts thereof have to be declared null and void (annulled) by the Court’s ruling. If an electoral challenge is successful, the part of the election found to be unlawful has to be repeated (e.g. counting of votes or the entire ballot). If the claimed

unlawfulness is found to be groundless or if it had no influence on the election result, the challenge is not allowed.

Legal bases: Art. 141 para. 1 points a and b B-VG; sections 67 to 70 VfGG; section 21 Law Governing the Election of the Federal President (BundespräsidentenwahlG); section 80 Rules on Elections to the European Parliament (EuropawahlO)

Challenges of the results of popular initiatives, plebiscites, referenda and European citizens’ initiatives

The Constitutional Court is also competent to decide on challenges of the results of popular initiatives, plebiscites, referenda or citizens’ initiatives at federal, provincial or European level. The details depend on the rules laid down in the respective simple-majority laws (Popular Initiative Act, Plebiscite Act, Referendum Act; Constitutional Court Act), which generally authorise groups of persons rather than individual voters to file a challenge (see, in particular, sect. 18 para. 1 Popular Initiative Act, sect. 16 para. 1 Plebiscite Act, sect. 14 para. 2 Referendum Act, sect. 4 European Citizen Initiative Act). The deadline for filing a challenge is four weeks from the publication of the results in the Official Journal of Wiener Zeitung. The challenge may concern any unlawfulness in the (voting) procedure. The application, which must be duly motivated, has to be filed as an application to have the result established by the Federal Electoral Authority declared null and void.

Although the aforementioned acts only refer to procedures of direct democracy at federal level, challenges of popular initiatives, plebiscites and referenda organised on the basis of provincial legislation are permitted as well (see Ruling V 103/99 of 16 June 2000).

If the Constitutional Court finds evidence of the claimed unlawfulness and comes to the conclusion that it had an influence on the result established by the Federal Electoral Authority, it has to allow the challenge and, if necessary, correct the recorded numerical result.

Legal bases: Art. 141 para. 1 point e B-VG; sections 57 to 61a VfGG; Art. 141 para. 3 B-VG; section 18 Popular Initiative Act (VolksbegehrenG); section 16 Plebiscite Act (VolksbefragungsG); section 14 Referendum Act (VolksabstimmungsG)

Loss of office

In connection with its tasks relating to electoral jurisdiction, the Constitutional Court is also empowered to decide on the loss of seats in elected bodies. The preconditions for a political office-holder to lose or to be removed from his/her seat are laid down in federal and provincial acts. In the event of a dispute, it is up to the Constitutional Court to decide on the loss of seat, if the contested function is held by  

  • a member of the National Council, the Federal Council, a provincial parliament or a municipal council,
  • a member of the European Parliament elected in Austria,
  • a member of a statutory body of a chamber exercising a parliament-type function within the chamber, or
  • a member of a local government (e.g. mayors, municipal councillors). 

The Constitutional Court has the power to decide on the loss of a seat if an application is submitted by a general representative body, at least 50% of the members of the European Parliament elected in Austria, or a statutory body of an entity representing professional interests, and if the law does not require prior administrative proceedings. If, however, the law (rules of procedure, electoral regulations) provides for a decision on the loss of a seat to be taken by an administrative authority, the administrative decision pronouncing the loss of seat is subject to an ex-post review by the Constitutional Court (indirect loss of seat procedure through the challenge of the administrative decision). 

While there is no deadline for submission of an application for a loss of seat, the deadline for the challenge of a (last-instance) administrative decision pronouncing a loss of seat is six weeks from service of the decision. 

If the Constitutional Court finds that the application for a loss of seat is justified, it has to declare the seat of the person concerned to be lost (with immediate effect); otherwise, the application is to be dismissed or rejected for formal reasons. If an administrative decision pronouncing the loss of a seat is challenged, the Constitutional Court has to repeal the challenged decision if the unlawfulness claimed by the challenging party has been proven; otherwise the challenge is not to be allowed. 

A loss of seat can also be pronounced pursuant to section 10 of the Incompatibility and Transparency Act

Rechtsgrundlagen: Art. 141 para. 1 points c to d B-VG; sections 71 and 71a VfGG

Complaints against territorial authorities on grounds of certain property claims

The Constitutional Court decides on property claims (i.e. monetary or other property claims, e.g. the surrender of property seized) against a federal, provincial or local authority or an association of local authorities, which are not subject to decisions by ordinary courts of law or administrative authorities. Practical examples include: 

  • Claims arising from revenue sharing between the federal, provincial and local levels
  • Claims for repayment of pecuniary fines, if it later proves to be the case (e.g. after legal remedy has been sought) that the collection of the fine was unjustified
  • Claims for the recovery of losses caused to an individual by the legislator or by last-instance courts through a qualified infringement of provisions of European Union law  

The Constitutional Court cannot pronounce ex officio on such claims; a complaint must be filed by the person maintaining to hold such a claim and demanding compensation of a certain pecuniary value. If it is in the complainant’s legal interest, it is also possible to request a decision on the existence or non-existence of a property right. 

If the claim against a territorial authority is found to exist, the Constitutional Court will order the latter to pay (otherwise payment will be enforced by the ordinary courts); if the Constitutional Court determines otherwise, the claim will be dismissed as unjustified.

Legal bases: Art. 137 B-VG; sections 37 to 41 VfGG

Conflicts of jurisdiction

The Constitutional Court decides in conflicts of jurisdiction  

  • between courts and administrative authorities,
  • between courts of law and administrative tribunals or the Administrative Court, as well as between the Constitutional Courts and all other courts, and
  • between federal and provincial administrative authorities or between the administrative authorities of different provinces.  

A negative conflict of jurisdiction exists if two (or several of the aforementioned) administrative authorities/courts deny jurisdiction in a certain case, one of them wrongly. An affirmative conflict of jurisdiction exists if two (or several) administrative authorities/courts claim jurisdiction in a particular case, but one of them wrongly. 

In the event of a negative conflict of jurisdiction, the party concerned is the only one entitled to submit an application to the Constitutional Court. In the event of an affirmative conflict of jurisdiction, the supreme administrative authority is primarily entitled to submit an application; courts are subject to a duty of notification. Under certain circumstances, individuals can apply directly to the Court.

Legal bases: Art. 138 para. 1 B-VG; sections 42 to 52 VfGG

Establishment of jurisdiction

Upon application, the Constitutional Court establishes 

  • whether an act of legislation or enforcement is within the jurisdiction of the Federal Government or the provincial government (Art. 138 para. 2 B-VGsections 53 to 56 VfGG); applications can be submitted by the Federal Government or a provincial government;
  • whether an agreement (treaty) pursuant to Art. 15a B-VG exists and whether one party (i.e. either the Republic of Austria or a province) has fulfilled the obligation arising from the agreement or has failed to do so (Art. 138a B-VGsections 56a and 56b VfGG); applications can be submitted by the Federal Government or the provincial government involved;
  • whether the Court of Audit or a provincial court of audit is authorised to audit the financial management of a legal entity or to perform certain audit activities. Controversies may arise over whether certain activities are part of the public sector or whether federal, provincial or local authorities directly or indirectly hold at least 50% of an enterprise or otherwise control an enterprise (Art. 138a B-VGsections 56a and 56b VfGG); applications can be submitted by the Federal Government, a provincial government or the Court of Audit;
  • whether the Office of the Ombudsperson (or a provincial ombudsperson’s office) is authorised to examine alleged cases of mismanagement by a certain body (Art. 148f and 148i para. 2 B-VGsections 89 to 93 VfGG); applications can be submitted by the Office of the Ombudsperson or the Federal Government or a provincial government.

Disputes regarding parliamentary committees of enquiry

Pursuant to a provision in force since 1 January 2015, the National Council has to establish a committee of enquiry if so demanded by 25% of its members. The Constitutional Court is called upon to decide in the following cases of disputes arising in this context: 

  • Disputes over the establishment of a committee of enquiry
  • Disputes over the scope of the committee of enquiry and the documents to be produced
  • Disputes over summonses to be served on persons providing information
  • Differences of opinion on the submission of information
  • Differences of opinion on the manner in which criminal proceedings pending at the same time are to be taken into consideration
  • Complaints about personal rights being violated through the manner in which the committee conducts its enquiry 

Finally, the Constitutional Court decides on challenges to decisions by the Speaker of the National Council and the Chairperson of the Federal Council regarding the classification of information available to the National Council (Federal Council).

Legal bases: Art. 138b B-VG; sections 56c ff. VfGG

Impeachment of office-holders of the state

Lawsuits can be brought before the Constitutional Court against certain office-holders of the state for culpable violation of the law, including criminal acts, in connection with the exercise of their official functions. This relates, in particular, to the following: 

  • The Federal President (who can only be accused by the Federal Assembly, i.e. the National Council and the Federal Council meeting in joint session, and only for infringement of the Constitution)
  • A member of the Federal Government and the President of the Court of Audit (accused by the National Council)
  • An Austrian representative on the European Council (accused by the National Council or the provincial parliaments)
  • A member of a provincial government and the president of a provincial court of audit (accused by the provincial parliament)
  • The governor of a province or a member of a provincial government for violation of the law and for non-compliance with a regulation or order of the Federal Government in matters within the scope of indirect federal administration (accused by the Federal Government)  

Judgements brought against such persons result in the loss of office and, under exacerbating circumstances, the loss of political rights. In certain cases, however, the Constitutional Court merely declares that an infringement has occurred.

Legal bases: Art. 142 and 143 B-VG; sections 72 to 81 VfGG

The most frequent cases dealt with by the Constitutional Court are complaints against rulings by administrative tribunals pursuant to Art. 144 B-VG, judicial review proceedings pursuant to Art. 140 B-VG, and proceedings to review regulations pursuant to Art. 139 B-VG. 

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