The Constitutional Court

How the Court works

• Who Can Call for Review by the Constitutional Court?

  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 and what not?

  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 (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.

  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.

• What happens when the Constitutional Court sets a law aside?

  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.

• Wide scope for action

  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.

• Challenging Elections

  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.