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.
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”.
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.