The Court’s Bench and its Judicial Activity
Appointment and Composition
All members and substitute members of the Constitutional Court must have a degree in law and at least ten years of experience in a legal profession requiring a degree in law (Art. 147 para. 3 of the Constitution – Bundesverfassungsgesetz B-VG).
The members and substitute members of the Court are appointed by the Federal President of Austria on the basis of proposals made by the Federal Government or one of the two chambers of the Austrian Parliament, i.e. the National Council or the Federal Council). The Federal Government proposes candidates for the offices of president, the vice-president, six members and three substitute members. The National Council proposes three members and two substitute members; the Federal Council has the right to propose three members and one substitute member. While the National Council and the Federal Council are entitled to propose representatives of any legal profession (including lawyers, public notaries or legal practitioners holding positions in business or in associations), the Federal Government only has the right to propose judges, civil servants working in the public administration or professors of law at a university (Art. 147 para. 2 of the Constitution – Bundesverfassungsgesetz B-VG). Three members and two substitute members must be domiciled outside Vienna, the capital of Austria. These provisions are intended to ensure a plurality of positions within the Court in terms of geographic and professional as well as political and ideological backgrounds.
Individuals serving as members of government at federal or provincial level, members of the National Council, the Federal Council, a provincial parliament or a municipal council (in Vienna: a representative body at district level) are barred from membership in the Constitutional Court. This also applies to employees or office-holders of political parties (Art. 147 para. 4 B-VG).
The members of the Court, including the President and the Vice-President, as well as the substitute members, continue to exercise their own professions while serving on the Constitutional Court. The only exception concerns civil servants in the public administration appointed as judges of the Constitutional Court, who have to be granted leave with no remuneration paid, as they would otherwise continue to be bound to follow instructions from higher levels in the administrative hierarchy, which would be incompatible with the exercise of their judicial function (Art. 147 para. 2 B-VG).
The members and substitute members of the Constitutional Court are independent in the exercise of their judicial office and can neither be removed from office nor transferred to another position (Art. 147 para. 6 B-VG). This means that they are not subject to instructions and are not appointed for a certain term of office. The mandate of each ends on 31st December of the year in which the respective judge reaches the age of seventy. Earlier removal of a member (or substitute member) from office is only possible by decision of the Constitutional Court itself.
A clear set of regulations of the Constitutional Court Act (referring to the guidelines laid down in the law on court jurisdiction [Jurisdiktionsnorm]) on the partiality of judges at ordinary courts and internal guidelines provide that the members and mubstitute members of the Constitutional Court have to withdraw if there is even the slightest chance that their involvement in this particular case might reasonably create an appearance of bias. In practice, the affected member informs the president of the Constitutional Court about his/her concern of partiality. The president then invites a substitute member to participate in the deliberations about the case in question. The question whether or not reasonable grounds for exclusion exist is examined solely by the Constitutional Court itself. As for the parties to the proceedings, they are not entitled to lodge motions for bias against members or substitute members.
Organisation of the Judicial Activity of the Court
The Constitutional Court elects from among its members, by secret ballot, so-called Permanent Reporters for a period of three years. Their task it is to prepare the individual incoming cases for the Court. Re-election is possible and common practice. The Court itself decides on the number of Permanent Reporters. As of October 2020, all members as well as the vicepresident act as Permanent Reporters.
The sessions of the Constitutional Court are convened by the President as required. In practice, the Court’s system of sessions has proved its merits: Unlike the Administrative Court or the ordinary courts of law, the Constitutional Court is not permanently in session, but is usually convened four times a year for three weeks each in March, June, October and December. Within the framework of its sessions, the Court deliberates intensively and decides on the cases prepared between sessions. If necessary, the President may also call “interim sessions” of one or several days.
In principle, the Court takes its decisions in plenary sessions, i.e. in the presence of the President, the Vice-President and the other twelve members (the so-called plenum). All cases of fundamental importance are dealt with in this constellation. Other cases, in which the Court has to clarify issues of law, the importance of which does not extend beyond the specific case or which have already been clarified through earlier decisions, are decided in a so-called Small Assembly consisting of the President, the Vice-President and four members. The Small Assembly format is necessary, not least, on account of the large number of petitions and complaints submitted to the Constitutional Court every year. However, any member has the right to demand that a case allocated to a Small Assembly be dealt with by the plenum.
The President assigns the incoming cases to a Permanent Reporter, sets out a schedule of deliberations, convenes sessions, chairs the proceedings and deliberations, and signs the decisions and the minutes. While fully respecting the independence of the members of the Court, the President has to make every effort to ensure consistency in the Court’s jurisprudence.
In the event that the President is incapacitated (e.g. due to illness, absence for reasons of other official duties or holidays, bias), he/she is represented by the Vice-President or, in the event of the latter’s incapacity, by the most senior member present in Vienna. Regardless of incapacity, the President may also transfer the chairmanship of proceedings and deliberations to the Vice-President.
If a member of the Constitutional Court is incapacitated, a substitute member has to be called upon. If possible, this should be a substitute member who was appointed upon a proposal by the same body as the incapacitated member. If a judge of the Constitutional Court becomes incapacitated after the deliberations on a case have begun, it is no longer possible to call upon a substitute member.
The Constitutional Court deliberates and votes in camera. In principle, decisions are taken by an absolute majority of votes. The chairperson does not participate in the vote, except in the event of a tie (due to the absence of a member). In such a case, the chairperson’s vote determines the result (chairperson’s right to cast the deciding vote).