1921: La Ronde
In his play “Reigen”, Arthur Schnitzler gave centre stage to eroticism and sex – not explicitly, but in dialogues that left no doubt. In the atmosphere prevailing in Germany and Austria in the early 1920s, the play caused a scandal that even led to the involvement of the Constitutional Court in Vienna. However, the Court was not called upon to act as a guardian of public morals; rather, it had to decide on a procedural issue: Was the instruction given by the (Conservative) federal government to the (Social-Democratic) mayor and provincial governor of Vienna, Jakob Reumann, to ban the performance formally correct? The Constitutional Court said it was not, and in its decision of 26 April 1921 (VfSlg 8/1921) acquitted Mayor Reumann.
The Constitutional Court had to review three “letters” by the Federal Minister of the Interior and Education for their character as a binding instruction. The first letter to Reumann was worded in such a way that it was clearly to be interpreted as a mere request; the second one was addressed not to the governor of the province, but rather to a department of the municipal administration, and in the third letter, correctly addressed, the Federal Minister’s signature, which was indispensable for a binding instruction, was missing.
The case against Reumann was one of the very rare cases brought before the Constitutional Court pursuant to Article 142 of the Federal Constitutional Law. This article regulates the scope of responsibility of government ministers (quote: “the constitutional responsibility of the highest federal and provincial authorities for contraventions of the law”.) There have been two other such cases: one also concerning Reumann (1923, Vienna Crematorium), the other concerning Wilfried Haslauer (1985), then Governor of the Province of Salzburg, in the controversy over shop opening hours (see the respective website entries).
The legal significance of the 1921 decision was due, inter alia, to the question of which procedural rules were to be followed. The case preceded the adoption of the Constitutional Court Act (Federal Law Gazette 1921/364). Pursuant to section 40 of the Transitional Constitutional Law of 1920 (State Law Gazette 1920/451 = Federal Law Gazette 1920/2), the procedural rules of the Reichsgericht (Imperial Court of Justice) would have been applicable, but its powers did not extend to litigation between state bodies. Therefore, the Court based its decision on the Act on Ministerial Responsibility of 25 July 1867 (Imperial Law Gazette 1867/101).
The Crematorium was built according to a design by Clemens Holzmeister and opened by Jakob Reumann on 17 December 1922.
Jakob Reumann, Governor of the Province of Vienna (1920–1925).
(Photo: Die Unzufriedene. Eine unabhängige Wochenschrift
für alle Frauen, 8. August 1925, S. 1 - ÖNB ANNO)
The Social-Democratic governor had already appeared before the Constitutional Court in a case of dispute between authorities of the state (see 1921: Reigen).
1923: The Vienna Crematorium
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.
1927: Dispensation instead of divorce
“Sever marriages”, a term to be found in legal literature, are named after Albert Sever, the Social-Democratic governor of Lower Austria (then still including Vienna) from 1919 to 1920, who frequently made use of the possibility of granting Catholics wanting to remarry a dispensation for impediments to marriage by way of an administrative act. After 1918, this practice was equivalent to breaking a taboo: Marriage law was regulated under the General Code of Civil Law and, continuing the tradition of the Monarchy, denominationally oriented. For Catholics, therefore, the only way to terminate a matrimonial partnership was “separation from bed and board” with continuance of the marriage bond. The possibility of a formal divorce and remarriage was denied to them. The Social Democrats and the advocates of a Greater Germany both called for the introduction of obligatory civil marriage (to be performed before a public authority instead of the church) and the possibility of divorce, but they failed in their demands on account of strict opposition from the Christian-Social Party.
Against this background, people wishing to divorce could only resort to section 83 of the General Code of Civil Law, which allowed the “provincial body” to grant a dispensation for impediments to marriage for important reasons. Whereas before 1918 such dispensations had been granted very rarely as an act of grace by the monarch, this became almost common practice after 1918 in Lower Austria under Governor Sever, and after the separation of Vienna from Lower Austria also in social-democratic Vienna (1921-1934) and in some parts of Carinthia. There were days on which Governor Sever signed up to 100 dispensations, as he himself admitted in his autobiography.
Legal opinions on the admissibility and effects of dispensations as well as their consequences differed: Was an existing marriage bond an impediment subject to dispensation at all? Could a marriage bond be dissolved by an administrative act and protect those who remarried from criminal prosecution for bigamy? Or was there no such effect? Was marriage by dispensation therefore even valid? Or were there two marriages, both valid at the same time? The civil-law consequences (inheritance and family law, provision for widows, pension law) were equally unclear.
As described in contemporary literature, this controversy resulted in a complete “muddle”: Administrative authorities issued countless dispensations, which the Administrative Court and the Supreme Court repealed or refused to recognise. In the Supreme Court’s opinion, courts had the right to review dispensations as a prior issue in marital nullity proceedings and had to declare marriages by dispensation invalid by a judge’s verdict, which they frequently did. Thus, marriages by dispensation were permanently at risk of being declared invalid by a court.
Finally, the Constitutional Court intervened: In its landmark decision of 5 November 1927 (VfSlg 878), it repealed a judgement pronounced by a civil court, which had declared a marriage by dispensation invalid. The Constitutional Court ruled that the case constituted an (indirect) positive conflict of jurisdiction between an administrative authority and the judiciary. It stated that the administrative authority had the sole power to grant a dispensation, while courts did not have the power to decide independently on this preliminary issue. Thus, the Constitutional Court sharply contradicted the jurisprudence of the other supreme courts. In view of the ideological sensitivity of the matter, this instantly resulted in heated academic controversies, massive political criticism of the Constitutional Court, and violent media attacks against the special reporter of the case, i.e. Professor Hans Kelsen.
According to Kelsen, the issue of marriage dispensations was a scandal and a problem of legitimacy of the state. “The state, which explicitly allowed a (new) marriage to be concluded by its administrative authorities, declared this same marriage invalid by way of its courts. A more detrimental way of undermining the authority of the state is hardly conceivable.” As Kelsen himself noted, he had no doubt whatsoever that a conflict of jurisdiction existed. He referred to this possibility when a lawyer sought his advice, and, as special reporter of the Constitutional Court, he prevailed with his opinion.
The Constitutional Court maintained this line of jurisprudence in about 170 cases until the end of 1929. The reaction by the Supreme Court was to regard dispensations as administrative acts that were absolutely null and void, because they made double marriages possible. Hence, courts were free to continue to declare marriages by dispensation null and void, except in cases in which the Constitutional Court had already pronounced on a conflict of jurisdiction. These were the only decisions that were binding for the courts; they were barred from reviewing these dispensations and had to recognise them as legally valid.
Finally, the conflict over marriages by dispensation was one of the reasons for the alleged “depoliticisation” of the Constitutional Court through the 1929 amendment to the Federal Constitutional Law. In reality, however, the Court was “repoliticised”: All the members of the Constitutional Court were recalled under the amended law and were then replaced by way of new appointment modalities and the introduction of an age limit of 70 years.
Hans Kelsen, the main author of the Austrian Constitution, could have returned to the Constitutional Court upon a proposal made by the Social-Democratic Party, but vehemently refused to do so. He accepted a chair at the University of Cologne and left Austria, profoundly embittered by personal attacks and the circumstances of the Court’s depoliticisation.
By its decision of 7 July 1930 (VfSlg 1341), the newly appointed Constitutional Court departed from the line of reasoning followed by Kelsen since 1927 and returned to its earlier jurisprudence. From then on, the Court maintained that it did not have the power to pronounce on cases of marriage by dispensation, as there was no conflict of jurisdiction. The notion of an indirect positive conflict of jurisdiction was a thing of the past.
Modern doctrine (especially representatives of the pure theory of law) and jurisprudence unanimously hold that Kelsen’s solution was not convincing in dogmatic terms and that the problems at issue represented a conflict of mutual recognition rather than a conflict of jurisdiction. The latter would only exist if two public authorities were to claim jurisdiction in the main issue, whereas in a conflict of mutual recognition it has to be clarified whether a public authority deciding on the main issue is bound by the final decision taken by another authority in a preliminary issue.
However, for the individuals concerned – about 70,000 couples reportedly lived in “Sever marriages” in 1935 – there was no legal certainty before 1938, when German marriage law entered into force on the territory of former Austria and obligatory civil marriage was introduced. About 49,000 Austrian separations from bed and board were converted into fully effective divorces. After the end of the Nazi dictatorship in 1945, the marriage law, with its provisions on civil marriage and divorce, was cleared of its traces of National Socialism and adopted by the Republic of Austria.
Prof. Dr. Hans Kelsen, ca. 1925.
Albert Sever, Governor of Lower Austria, 1919–1920,
granted dispensations liberally.
“Professor Dr. Hans Kelsen was not appointed to the new Constitutional Court, although he himself had created this supreme body of the judiciary.”
Cartoon in „Der Morgen. Wiener Montagblatt, 10.02.1930“, S. 7.(Photo: ÖNB/ANNO)
“Member of Parliament Albert Sever, the father of marriages by dispensation”
Cartoon in „Der Morgen. Wiener Montagblatt, 04.08.1930“, S. 7. (Photo: ÖNB/ANNO)
The Freethinkers’ Union calls for protest demonstrations against the departure from the Constitutional Court’s jurisprudence on marriages by dispensation and demands a reform of marriage law, 1930.
News item in the Neue Wiener Abendblatt
reporting the repeal of the regulation
Neues Wiener Abendblatt, 23/06/1931, p. 1.
Student groups in front of the main entrance to the University of Vienna on 23/06/1931.
News item in the Arbeiterzeitung reporting the Court’s decision
Arbeiter-Zeitung, 24/06/1931, p. 1.
Call for a torchlight march in honour of the “pioneers of German student rights”, Rector Professor Uebersberger and former Rector Professor Gleispach, on 02/07/1931.
Rector Uebersberger and Vice-Rector Gleispach during the torchlight march on 2 July 1931, surrounded by students raising their arms in the “German salute”.
1931: The Vienna Student Regulation
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 1st 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.
1956: An “Archivist’s Diligence”
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.
Poster of the Communist Party of Austria against Otto Habsburg-Lothringen’s return to Austria, 1960.
On 14 June 1961, an official communication was published in the Wiener Zeitung, stating that the Council of Ministers had been unable to agree on the matter of Otto Habsburg-Lothringen.
Demonstration against Otto Habsburg-Lothringen’s entry into Austria on 23 December 1968.
The legendary handshake between Bruno Kreisky and Otto Habsburg-Lothringen on the occasion of the 50th anniversary of the foundation of the Pan European Movement, 1972.
1961: The Habsburg Crisis
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.
1974: The First-Trimester Rule
Pursuant to sect.97 para.1 point 1 of the Criminal Code, the termination of a pregnancy is not a punishable offence if “performed by a physician after medical counseling within the first three months of pregnancy”. The adoption of the so-called “first-trimester rule” and its entry into force on 1 January 1975 were preceded by a long political, societal and legal controversy. Acting upon a petition filed by the government of the Province of Salzburg, the Constitutional Court dealt with the first-trimester provision before its entry into force. Within the framework of an abstract judicial review, the Court confirmed its compatibility with the Constitution and the European Convention on Human Rights.
The first-trimester provision was adopted in the context of a comprehensive recodification of criminal law under the Socialist government (1970-1983). The old Criminal Code dated from 1852 and had been partly modernized in 1971. It was replaced by the new Criminal Code in 1974 (Criminal Code 1974, Federal Law Gazette 1974/60). The major part of the Criminal Code was acceptable to all political parties and unanimously adopted by the National Council. In contrast, the provisions regarding the termination of pregnancy and, above all, the first-trimester rule, were adopted by the National Council solely on the basis of the votes of the Socialist majority. A suspensive veto of the Federal Council was overruled by the National Council. The new legal provisions entered into force on 1 January 1975.The Austrian People’s Party, the Freedom Party and the Catholic Church were all vehemently opposed to the legalization of abortion during the first three months of pregnancy. Moreover, organized civil society groups of advocates (“Action Committee for the repeal of sect.144”) and opponents of abortion (“Pro-Life Campaign”) were formed. A referendum on the “protection of human life” organized by the “Pro-Life Campaign” in 1975 was signed by 895,655 people.
The Constitutional Court took up the matter on account of a petition submitted by the conservative majority government of the Province of Salzburg, which on 15 March 1974 filed for the repeal of sect.97 para.1 point 1 of the Criminal Code on grounds of its unconstitutionality. It argued that the provision violated the European Convention on Human Rights (ECHR, Art. 2, 8 and 12: right to life, right to respect for private and family life, right to marry and found a family), which ranks as a constitutional law in Austria, as well as the principle of equality, according to which no human being must be regarded as inferior to others.
In its decision pronounced on 11 October 1974 (VfSlg 7400), the Constitutional Court rejected the petition. It argued that Art. 2 of the ECHR did not specify the point in time from which human life must be protected, and diverging opinions were to be found in relevant literature (protection from the instant of the embryo’s conception? protection from birth?). The Constitutional Court held the opinion that the scope of Art. 2 of the ECHR, considered as a whole, did not cover unborn life. Moreover, the Constitutional Court did not identify any violation of the other rights invoked by the government of the Province of Salzburg. Referring to the principle of equality, the Court noted: “Whatever the assessment of the provision at issue in terms of legal policy may be – rejection or approval, depending on the observer’s religious, ideological or scientific position – the Court has not found any evidence of bias violating the principle of equality in this provision.”
In line with the prevailing jurisprudence of the time, the Constitutional Court interpreted fundamental rights as typically liberal rights of defense against the state. Hence, it argued that the first-trimester rule did not constitute an “interference with human life by the state”. This interpretation changed in later years. Currently, fundamental rights are understood to provide the basis for safeguards and duties of protection of the state. Against this background, the reasons given for this decision would most likely be different today.
Walter Antoniolli, President of the Constitutional Court.
The 1975 University Organization Act.
Federal Minister of Science and Research Hertha Firnberg.
(Photo: ÖNB Bildarchiv)
1977: The University Organization Act and the Resignation of the Constitutional Court President
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.
1985: Postal Voting Declared Unconstitutional
In its decision G 18/85, the Constitutional Court ruled that postal voting, as introduced in Lower Austria in 1984, was not compatible with the principles of the right to vote personally and by secret ballot and was thus unconstitutional.
Postal voting does not require the voter to be physically present at the polls and therefore appears to be particularly suitable for increasing voter turnout. In 1984, Lower Austria was the first province to permit postal voting in municipal elections held in chartered towns. Even before this system was applied for the first time in Wiener Neustadt on 14 April 1985, the Constitutional Court repealed the relevant provisions of the Lower Austrian Election Regulations for Chartered Towns, Provincial Law Gazette LGBl 0360-2. In its decision of 16 March 1985, VfSlg 10.412, the Constitutional Court explained that the system of postal voting was in violation of the principles of the right to vote personally and by secret ballot as laid down in the Constitution.
The primary reason given by the Constitutional Court for its decision was that pursuant to Art.117 para.2 first sentence of the Constitution the Municipal Council had to be elected on the basis of the equal, direct, secret and personal suffrage and proportional representation of all citizens. In the opinion of the Court, a ballot was only to be deemed secret if it was absolutely impossible for the electoral authority as well as for third parties to ascertain for whom individual voters cast their ballots. The introduction of postal voting would remove the safeguards that guaranteed that voters could cast their ballots at the polling stations unobserved and without being influenced. In addition, the Constitutional Court also perceived a violation of the right to vote personally, given that in the case of postal voting, the essential element of physical presence when casting the ballot was lacking. The Court followed its previous jurisprudence (cf. VfSlg 4483/1963, 4713/1964) and repealed the provisions on postal voting as unconstitutional.
Despite this decision, postal voting has in the meantime become widely established in all of Austria following the creation of the relevant constitutional basis through federal legislation. An amendment of the Constitution (Federal Law Gazette BGBl I 2007/27) incorporated the prerequisites for and the process of postal voting in Art.26 para.6 of the Constitution, thus establishing them as constitutional election principles. Since then, postal voting has been available in all elections held in Austria.
Wilfried Haslauer sen.
(Photo/excerpt: Wolfgang H. Wögerer, Vienna, Austria, CC BY-SA 3.0 )
Announcement of the decision of the Constitutional Court.
An ORF news broadcast on the public announcement of the decision on this case from 1985 can be found in the ORF-TVthek: Die Geschichte Salzburgs
Causa Ladenöffnungszeiten vor VfGH .
(Friday, 28/06/1985, 08:00 am, 04:45 min)
1985: Wilfried Haslauer sen.
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.
1986: Taxi Licenses
Up to the early 1980s, the Constitutional Court tended to take a reserved, strictly formal and restrictive stance on formal enactments restricting fundamental rights, such as the freedom to conduct a business, which is enshrined in Article 6 of the Basic Law on the General Rights of Citizens. In accordance with the Court’s jurisprudence of the time, the legislator, in adopting simple-majority laws, was restricted solely by the substance of the fundamental right at issue. An infringement was rarely deemed to exist, except when the fundamental right appeared to be almost completely undermined. This earlier approach gradually gave way to a more substantive view, as in the case of the taxi licenses. In accordance with this point of view, interference with a fundamental right is permissible only if it is in the public interest, proportionate and substantively justified.
The Occasional Carriage of Passengers Act, which regulates the taxi trade, originally provided for licenses for the commercial carriage of passengers to be issued subject to “demand for the trade to be exercised”. In 1986, the Constitutional Court had to deal with two complaints against rejections of applications for taxi licenses and initiated an ex officio legal review of sect.5 para.1 and sect.5 para.4 of the Occasional Carriage of Passengers Act. In addition, another 49 applications for legal review were submitted to the Administrative Court in similar cases.
With its decision of 23 June 1986 (VfSlg 10.932), the Constitutional Court ultimately repealed the provisions concerned on the grounds of violation of the freedom to conduct a business pursuant to Art.6 of the Basic Law on the General Rights of Citizens. The Court underlined that a provision restricting the freedom to conduct a business was permissible only if it was in the public interest, suited to achieve the intended goal, proportionate and substantively justified. In the Court’s opinion, demand assessment, as provided for in the Occasional Carriage of Passengers Act, was entirely inadequate as a means to achieve the goal of functioning, safe and time-saving occasional carriage of passengers and merely served the restriction of competition, which was not in the public interest. A legal requirement of demand assessment was pronounced to be a disproportionate restriction of the freedom to conduct a business.
The legislator reacted to the repeal by amending the Occasional Transport of Passengers Act. According to the amended sect.10 para.2 of the Act, the authority to limit the maximum number of taxis in operation by way of a regulation was conferred upon the governors of the Austrian provinces.
The new provision, however, was nothing but a form of demand assessment in disguise. Moreover, it caused a heated controversy, as numerous legal experts suspected that it had been adopted as a constitutional provision for no other reason than to safeguard the old system from objections by the Constitutional Court. In fact, the attempt was not crowned with success: The Constitutional Court repealed all regulations adopted on the basis of sect.10 para.2 of the Occasional Carriage of Passengers Act (VfSlg 11.756/1988 uva). In 1993, the legislator changed its position and declared the contested provision null and void.
Roof-top taxi sign.
(Photo: Petar Milošević, CC BY-SA 4.0)
1991: An Unconspicuous Private Life
“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.
2001: Unconstitutional Constitutional Law
The judicial review of the Federal Procurement Act was triggered by several proceedings initiated to review the constitutionality of the establishment of the Salzburg Procurement Monitoring Board pursuant to the Salzburg Provincial Procurement Act (G12/00). Before these proceedings were brought to a conclusion, the federal legislature had introduced section 126a to the Federal Procurement Act as a constitutional provision, which declared all provincial provisions regarding the organisation and jurisdiction of enforcement bodies in public procurement proceedings as of 1 January 2001 to be not in infringement of the Constitution and thus ensured their temporary validity up to 31 August 2002.
This act was adopted against the background of a Constitutional Court decision that had repealed a provision of the Federal Procurement Act. The federal government, at that time a coalition of the Austrian People’s Party (ÖVP) and the Freedom Party (FPÖ), did not obtain the necessary constitutional majority in Parliament. Instead, the parties unanimously agreed on a compromise: By way of a constitutional provision, they decided that the old provisions were to remain in force until the adoption of an amended act.
However, through this constitutional provision, the Constitutional Court would have been prevented from reviewing the jurisdiction of the Salzburg Procurement Monitoring Board. The Constitutional Court therefore initiated judicial review proceedings in respect of section 126a of the Federal Procurement Act (G 132-136/01). The Court came to the conclusion that the (simple-majority) constitutional legislator does not have the right to suspend the effect of the Constitution as the yardstick applicable to legal provisions of a lower than constitutional rank. A “loss of the yardstick function” of the Constitution was pronounced to be in violation of the principles of the rule of law and democracy (VfSlg 16.327). The question of whether such suspension of the Constitution could be brought about by way of an amendment of the Constitution by popular referendum was deliberately left open by the Constitutional Court.
This decision was a clear statement of the fact that constitutional law, as an expression of the fundamental principles of the Constitution, is superior to all other forms of law and that the Constitutional Court is called upon to guarantee the respect of these fundamental principles. Hence, the Constitutional Court is the guardian not only of the Constitution, but also of its fundamental principles.
Carinthian Governor Jörg Haider at the public promulgation of the repeal of the (monolingual) place name signs “Eberdorf” and “Bleiburg” as used in a “place name signs regulation” of the administrative authority of the district of Völkermarkt by the Constitutional Court on 26 June 2006 (VfSlg 17.895).
Carinthian Governor Jörg Haider “circumventing” the Constitutional Court decision by mounting small additional signs in Slovene instead of bilingual place name signs in Bleiburg on 25 August 2006.
(Photo: LPD Kärnten)
Resolution of the conflict in 2011.
Ceremony marking the resolution of the conflict over place name signs in the Wappensaal of the Provincial Parliament in Klagenfurt on 16 August 2011.
(Photo: LPD Kärnten)
Putting up the bilingual place name sign of Hart/Ločilo (Community of Arnoldstein) on 28 August 2011.
(Photo: LPD Kärnten)
2001: Place Name Signs in Carinthia
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.
2012: The European Fundamental Rights Charter
The Charter of Fundamental Rights of the European Union (FRC) is the Union’s catalogue of fundamental rights. It has been applicable as primary law since December 2009 and is binding upon the Member States by virtue of Article 6 of the Treaty on European Union (TEU) to the extent to which Union law is concerned. In purely formal terms, it is not part of the Austrian Constitution.
The Constitutional Court had to deal with the national consequences of the FRC in a number of cases, including case U 466/2011. In its decision of 14 March 2012 (VfSlg 19.632), the Constitutional Court, referring to the principle of equivalence developed by the Court of Justice of the European Union, held that the rights guaranteed by the FRC constitute a standard of judicial review in proceedings before the Constitutional Court, provided they are comparable, in terms of form and determinateness, to the constitutionally guaranteed rights emanating from Austrian constitutional law. According to the principle of equivalence, facts of a similar and comparable nature must not be treated differently under national law and Union law in respect of the protection granted by the law. However, most of the fundamental rights emanating from the FRC are comparable to those enshrined in the European Convention on Human Rights (ECHR), which ranks as constitutional law in Austria.
Therefore, and also against the background of the Austrian concept of concentrated constitutional justice, it would be incomprehensible if a petition based on the FRC were treated differently from a petition based on the ECHR. In its assessment of a possible violation of a fundamental right within the meaning of the FRC, the Constitutional Court takes guidance from the case law of the CJEU.
The Constitutional Court pronounced this landmark decision after several complaints had been lodged against decisions by the then Asylum Court criticizing the fact that no oral proceedings had been held. The complaints were rejected on grounds that the FRC had not been violated.
Preamble to the Charter of Fundamental Rights of the European Union.
(Photo: Trounce, CC BY 3.0)
Ballot paper for the second (repealed) round of the election (run-off election of the federal president) in the polling booth.
(Photo: Christian Michelides, CC BY-SA 4.0)
The members of the Constitutional Court during the public hearing on the electoral process for the run-off election of the federal president.
(Photo: Christian Michelides , CC BY-SA 4.0)
The public announcement of the decision was broadcast live on Austrian television (ORF) on 1 July 2016.
A recording of the public announcement is available in the ORF TVthek: “Bundespräsidentenwahlen in Österreich” (Elections of the Federal President in Austria – only available in German)
To watch the video, click on the following link:
Historisches Urteil: VfGH erklärt Stichwahl für ungültig
(Landmark Decision: Constitutional Court Declares Runoff Election Null and Void” – only available in German)
(Friday, 1 July 2016, 11:55, 34:16 min.)
2016: Run-off Election of the Federal President
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.