The Constitutional Court

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.

Great power, great responsibility

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.

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.

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 an
  • 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.

How the Court works

How members can lose their seats

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.

Decisions on the impeachment of Office-Holders

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.