• 1956: An “Archivist’s Diligence”

      A decision by the Constitutional Court clearly states that a legal norm can only be binding if its wording is comprehensible.

      The Lower Austrian provincial act of 26 April 1950 on the re-entry into force of provisions of electricity law (Lower Austrian Law Gazette 1950/29) and the related decision by the Constitutional Court represent a landmark in the history of Austrian law. In a statement that has become famous among legal scholars, the Constitutional Court underlined that the substance of a legislative decision must be communicated to the broad public in “clear and exhaustive terms” in order to make it possible for all those concerned to act in accordance with the legal norm. The relevant sentence of the decision of 14 December 1956 (VfSlg 3130) reads as follows: “If the wording of a legal provision is such that its meaning can only be understood by someone who is familiar with the subtleties of constitutional law, has legal qualifications and experience, and is able and willing to apply an archivist’s diligence to the matter, it is not a binding legal norm.”

      The Constitutional Court reviewed the provincial act in question on the occasion of a complaint lodged against an administrative decision. Through this act, “all provisions relating to the electricity sector that had ceased to be applicable as of 20 October 1948 were reintroduced as provincial provisions applicable to the Province of Lower Austria”. The Constitutional Court expressed doubts about the constitutionality of the act, through which “an entire body of law, which had been in effect at a certain time in the past and which consisted of numerous provisions adopted at different points in time and promulgated in different media”, was re-enacted in the form of an all-encompassing provincial law. Some of the provisions in question dated from before 1945 and had been promulgated in the (German) Reichsgesetzblatt, the German Reichsanzeiger and other legal journals. At the end of a judicial review procedure initiated ex officio pursuant to Article 140 of the Federal Constitutional Law, the Constitutional Court pronounced the act to be anti-constitutional and repealed it.

      The Constitutional Court justified its decision by referring to the promulgation of legal provisions as an element of the rule of law.

      This famous statement by the Constitutional Court subsequently found its way not only into numerous other Constitutional Court decisions, but also into legal doctrine. In its “mental gymnastics decision” of 29 June 1990 (VfSlg 12420), for instance, the Constitutional Court referred to this statement in relation to an almost incomprehensible provision of the Unemployment Insurance Act and ruled that a legal norm that “can only be understood by those who are familiar with the subtleties of the subject matter, have extraordinary methodical capabilities and enjoy an exercise in mental gymnastics” has no binding effect.

    • Auszug aus dem Erkenntnis vom 14. Dezember 1956, G 30/56  

      Excerpt from the decision of 14 December 1956, G30/56.

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