The Constitutional Court and Parliament
The Constitutional Court is a court that has a specific function – that of testing the constitutionality of legislative and executive acts. In so doing it safeguards the very foundations of the State and Democracy.
Expertise and Experience
Since the Constitutional Court has to decide issues that are particularly important to the state, it is of the greatest importance that it bases its work on the broadest possible spectrum of opinions and expertise. All its members have to be highly experienced lawyers.
Judges of the Constitutional Court can look back on a career as attorneys, notaries public or judges, company or administrative lawyers or university teachers.
The Court is composed of a President, a Vice-President, twelve members and six deputy members, all of whom are appointed by the Federal President, who makes his/her choice from a list of candidates for which the National Council has proposed three members and two deputy members, and the Federal Council another three members and one deputy member. The remaining candidates are proposed by the Federal Government. Members of Parliament cannot at the same time be members of the Constitutional Court.
Watching over Fundamental and Human Rights
The Constitutional Court also has to decide whether fundamental and human rights have been violated. Thus the Court is the guardian of the most cherished rights of all human beings who live in Austria.
Great Power: Declaring Laws null and void
The Constitutional Court scrutinises the way laws and regulations are implemented, but it can also put the laws themselves to the test and see whether they comply with the Constitution. When it finds that a law violates the Constitution it can set it aside. In this way it supervises and corrects the legislative activity of the National Council.
A High Office Supervising Parliament
Some of the functions of the Constitutional Court have a direct impact on Parliament, such as decisions on
- the constitutionality of laws and State Treaties;
- challenges of election returns;
- challenges of the results of popular initiatives, referenda and non-binding (consultative) referenda;
- motions to divest for instance a National Council member of his or her seat and
- the impeachment of organs of the state such as Ministers;
- the Constitutional Court also has to decide whether a legislative act is within the competence of the federal or provincial institutions or if the Court of Audit or the Ombudsman’s Office as helpmates of the National Council are entitled to perform specific examinations.
The organisational setup of the Constitutional Court is regulated in the Constitutional Court Act.
Review of a federal law for its constitutionality can be initiated in three ways:
- by an institution that would have to apply the law in practice. The Constitutional Court may, however, also initiate review of its own accord;
- by a Provincial Government, one third of the members of the National Council or one third of the members of the Federal Council. This can be done even when there is no particular case that would call for review – which means that opposition parties can challenge a law passed by the parliamentary majority if they jointly hold at least one third of the parliamentary seats;
- by individual petition on the part of a person who maintains that his/her rights have been violated by an unconstitutional law if that law has been applied to him or her without any court judgment or administrative decision against him/her.
What Is Reviewed
In principle, the review focuses on whether a law is in keeping with the Constitution. However, laws may also run counter to the Constitution for other reasons, for instance on account of gross violations of the Rules of Procedure of the National or Federal Council (causing erroneous voting results etc.).
Even Constitutional Laws Can Violate the Constitution
Even constitutional laws (i.e. laws or parts thereof voted by a two-thirds majority and designated as being “of constitutional rank”) may be set aside as unconstitutional if they violate one of the guiding principles of the Federal Constitution.
What Is not Reviewed: EU Law and Matters not Regulated by Law
The Constitutional Court does not review laws in the light of their compliance with EU law. Its decisions can only set aside unconstitutional laws or individual unconstitutional passages in a law – see below).
It cannot rule on matters not governed by law nor order the National Council to regulate certain matters by law. Inaction on the part of the law-makers thus cannot be remedied by the Constitutional Court.
When a law is declared null and void, the courts and administrative authorities must no longer apply it. Usually that law is set aside as of the date on which the Court’s decision is published. And the Constitutional Court may demand by what date the new provisions must enter into force.
Constitutional Court Decisions Create Law
In reviewing a law, the Constitutional Court takes important decisions. Its interpretation of the wording greatly influences the way in which the law under consideration is henceforth understood and applied. The Court’s views can sometimes have a similar effect as a new Act of Parliament.
Constitutional law lays down the principles on which a state functions, but the wording it uses may leave many things undecided. When a law is tested for its constitutionality, the Court in many cases enjoys considerable scope in interpreting the law. This is especially evident in cases where the Court bases its decision on highly general principles.
One example may illustrate this: the general factuality requirement, which is derived from the principle of equality. Equal things must be treated equally, unequal things unequally, and every and any regulation must be justified by actual fact. By requirements linked with the call for factuality, the Court can considerably limit the scope of action of both Parliament and the Government.
The Legislators’ Preventive Action: Laws "of Constitutional Rank"
Parliament frequently obviates the setting-aside of legislative provisions by passing laws “of constitutional rank“.
The conditions for raising a law to “constitutional rank“ are relatively easily met in Austria: the requirement is for a two- thirds majority vote cast in the presence of at least one half of the Members and the express designation of the law or individual clauses therein as “constitutional law“ or “constitutional provision”.
Typical of Coalitions with a Two-Thirds Majority
This used to be a frequent practice in the past when the partners in a large coalition had a two-thirds majority between them in the National Council so that they did not have to seek a two-thirds majority by soliciting the approval of opposition parties.
This explains why there are a large number of constitutional provisions whose substance is not a matter of typical constitutional law (i.e. matters concerning the very foundations of the state) but deal with completely different areas.
The Constitutional Court cannot declare state treaties null and void, but if it finds that a state treaty is in conflict with the Constitution, that treaty must no longer be applied in Austria.
The Constitutional Court examines the validity of some elections if petitioned to do so. Such challenges may for instance be made in respect of National Council elections or the election of members of the Federal Council by the Provincial Diets.
The Court also decides on the justification of challenges of the results of popular initiatives, referenda or non-binding (consultative) referenda.
The Constitutional Court decides on the loss of seats in the National and Federal Councils. This is done upon a petition by a majority of the National or Federal Council.
Members of the National Council lose their seats:
- if they fail to take the official oath or fail to take it in the prescribed form,
- if they remain absent from the sittings of the National Council for a certain period without valid reason,
- if they cease to be eligible after having been elected (by loss of Austrian citizenship or a court sentence to more than one year’s imprisonment for offences committed with malice aforethought) or
- if they abuse their position as Members of the National Council, for example by granting special privileges to a business in which they are employed.
If the Court considers the petition to be justified the Member is immediately divested of his/her seat.
The Constitutional Court also decides on impeachments of office-holders such as the Federal President, Federal Ministers or Provincial Governors. Reasons for impeachment are culpable violations of the law committed in their official capacity.
A Government Member may, for instance, be impeached for official acts that violate the Federal Constitution or Federal laws, but not if s/he has been caught speeding or failed to honour a private contract.