The position of constitutional courts and their influence on the legal order of the state

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1 The position of constitutional courts and their influence on the legal order of the state International Conference on the occasion of the 20 th anniversary of the Constitutional Court of the Slovak Republic in Kosice on 9 April 2013 The Austrian Constitutional Court s Influence on the Legal Order Dr. Brigitte Bierlein Vice President of the Austrian Constitutional Court 1. The position of Constitutional Courts within the structure of state bodies and their influence on the legal order of the state does not only depend on their powers and on the way in which they exercise them, but also on their standard of review. This standard determines their review s control density Standard of review for the legal control exercised by the Constitutional Court is the Constitution. Constitutional jurisdiction is the application of constitutional law which determines the conditions for the creation of and certain limits for simple law. Therefore, the Constitutional Court always decides legal questions, although these legal questions often are very closely connected with political aspects of constitutional life. The reason for the political dimension of constitutional justice is that the Constitutional Court controls and disciplines political processes. Considering the effects of its case-law, the activities of a Constitutional Court have a political dimension which by far outreaches the decision in a single case. First and foremost, this applies to norm review because in this case the Constitutional Court acts as negative legislator and is as such exercising considerable influence on the embodiment of solutions to essential socio-political questions. Apart from that the Constitutional Court also influences politics when deciding on challenges of election or on conflicts of jurisdiction. Any form of constitutional justice has political implications. 2 1 Korinek, Die Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen, Veröffentlichungen der Vereinigung deutscher Staatsrechtslehrer, 1981, Vol. 39, Berka, Verfassungsrecht, 4th Ed., 2010, 321f.

2 2 The fact that the Constitutional Court s standard of review is constitutional law means at the same time that this standard can be amended by Parliament with a two thirds majority. By doing so the democratically legitimised legislator has the possibility to implement political decisions favoured by a large majority against the case-law of the Constitutional Court, by re-enacting a provision repealed by the Constitutional Court in the rank of the Constitution Only if the basic principles of the constitutional order (i.e. democratic, republican, federal, separation of powers and rule of law principles) are affected the Constitutional Court is qualified to review also a constitutional provision: An amendment to one of these basic principles by a constitutional law is considered a total revision of the Constitution which requires a two thirds majority in Parliament and its subsequent approval by a popular referendum. 4 In the absence of a referendum the Constitutional Court would measure the constitutional provision in question against the basic principles and repeal it when indicated. From 1986 to 1999 the two major political parties formed a coalition, disposing of a two thirds majority in Parliament. They repeatedly used their majority in order to avoid the consequences of Constitutional Court judgements and to re-establish the status quo by reenacting the repealed provisions again in the rank of formal constitutional law. 5 Sometimes also statutes containing unconstitutional provisions have intentionally been enacted in the rank of the constitution in order to immunise them a priori against constitutional review. As mentioned, in principal, the legislator is entitled to act in this way. However, if parliament systematically overruled Constitutional Court judgments it would tend to paralyse constitutional justice. Therefore, the Constitutional Court held that several such legislative measures in sum might entail a gradual total revision of the constitution, even if each individual measure regarded upon alone would not yet exceed this limit. 6 In 2001 the Constitutional Court has repealed a constitutional provision for the first and so far only time. This provision would have punctually suspended the Federal Constitution and the Constitutional Court s power to norm review. 7 The Court argued that as part of the rule of law principle constitutional justice belongs to the basic constitutional order and the abolishment of the Constitutional Court or the erosion of its powers has to be qualified as a total revision of the constitution. In this case the basic principles of the Constitution formed the Constitutional Court s standard of review. 3 Berka, Verfassungsrecht, 321f. 4 Article 44 para. 3 B-VG. 5 E.g. VfSlg 9.950, reaction of the constitutional legislator: BGBl. 106/1986 reaction of the Constitutional Court: VfSlg VfSlg VfSlg

3 3 4. Because of the power to review the constitutionality of statutes there is a permanent field of conflict between the Constitutional Court and Parliament. In a democratic state, it is primarily the task of the legislator to decide sometimes eminently important sociopolitical issues by simple majority. In norm review proceedings the Constitutional Court must first of all respect the political margin of appreciation of the legislator. On the other hand, it is the Constitutional Court s task to guarantee the primacy and the observance of the Constitution by repealing statutes violating it. 8 The position a Constitutional Court assumes in this field of conflict with the legislator and the political forces behind it may be best characterised by the terms judicial self-restraint and judicial activism. 9 Until the late seventies of the past century, the Constitutional Court was known for its extremely formalistic interpretation of the Constitution and of fundamental rights. The formalistic interpretation with regard to fundamental rights in the older case-law of the Court had granted the legislature a wide margin of appreciation in the pursuit of its political goals, forbidding only the total abolition or an excessive meaning unjustifiable legislative interference with the essential minimum of a fundamental right. 10 In connection with two politically sensitive norm review proceedings in the seventies (concerning abortion 11 and university organisation 12 ) the Court dismissed the respective applications. These judgments have been severely criticised by the conservative opposition party and by legal doctrine. They reproached the Court of not properly implementing its constitutional powers and of not sufficiently fulfilling its task to protect constitutionally guaranteed rights. It has to be emphasised that these critics correctly pointed out that also judicial self restraint may have a political function because it supports the legitimacy of the political majority party currently in power. Since the end of the seventies, the case-law of the Austrian Constitutional Court gradually changed to a more and more value-oriented position, giving considerably more substantial significance to human rights. Beyond doubt, this "new" case-law emanates from the fact that the European Convention on Human Rights had been adopted in Austria in 1958 and was granted constitutional level retroactively in 1964, and not least was influenced by the caselaw of the European Court of Human Rights in Strasbourg. 13 The Constitutional Court developed its case-law especially influenced by the principles of protection of confidence and of proportionality inherent to the case-law of this Court. As a consequence it can be stated that the Constitutional Court has become, in its interpretation of fundamental rights, 8 Berka, Verfassungsrecht, 322f. 9 Berka, Verfassungsrecht, 323f. 10 Hausmaninger, The Austrian Legal System, 4 th Ed.,2011, VfSlg VfSlg Cf. Heller, Der Verfassungsgerichtshof, 2010, 384ff.

4 4 increasingly responsive to the standards developed and refined by the European Court of Human Rights. 14 Although the margin of appreciation of the legislator continued to exist, it became much narrower. This new approach is best shown with respect to those fundamental rights that are subject to legislative restriction. For example: The fundamental freedom to pursue gainful activity (Article 6 Basic Law on the General Rights of Nationals) states that "every national can [...] practice every kind of gainful activity subject to the conditions of the law." The freedom to pursue gainful activity states only that interference is admissible based on a legal provision (so-called "formal reservation of interference"). 15 In the case-law since 1984 the Constitutional Court developed this "formal reservation of interference" insofar as not any restriction provided by law was permitted, but only if there is a compelling public interest and if the measure chosen to protect this public interest appears to be suitable, adequate and justified On March 14, 2012 the Austrian Constitutional Court has delivered a remarkable judgment 17 concerning the status of the Charter of Fundamental Rights of the European Union (CFR) in the Austrian constitutional system. According to the Court s case-law until this date, constitutionally guaranteed rights as well as the entire domestic constitutional order including the European Convention on Human Rights and its Protocols which have constitutional status in Austria formed the standard for the Court s review. European Union law, however, is not part of Austrian constitutional law. Therefore, the Constitutional Court based its former case-law on the assumption that EU law does not form a standard for its review. 18 With regard to the CFR the Court has recently changed its view: In its mentioned judgment the Court held that the rights and freedoms guaranteed by the CFR may be invoked as constitutionally guaranteed rights 19 and may also serve as a standard of review for constitutional norm review proceedings. In any case this applies to the guarantees of the CFR which equal constitutionally guaranteed rights in wording and determinateness. Firstly, the Constitutional Court argues that within Union Law the CFR is an area that is markedly distinct from primary and secondary European Union Law. In this respect, the 14 Hausmaninger, Legal System, Stelzer, An Introduction to Austrian Constitutional Law, Hausmaninger, Legal System, U 466/11 et al. 18 E.g. VfSlg , , et al. 19 Cf. Articles 144 and 144a B-VG.

5 5 rights and freedoms guaranteed by the CFR distinctly differ from the legal positions derived by the European Court of Justice from general principles of law and the constitutional traditions common to the Member States, before the Lisbon Treaty. Secondly, the Constitutional Court brings the principle of equivalence in European Union law into play. According to this principle proceedings provided in Member States law for the implementation of rights granted by directly applicable Union law must not be less favourably designed than proceedings that exist for comparable rights derived from the domestic legal order. Actually many rights of the CFR are modelled both in wording and intention on the corresponding rights of the European Convention of Human Rights which has constitutional status in Austria. Its rights are constitutionally guaranteed rights whose protection must be ensured by the Constitutional Court. Moreover, for the area of application of Union Law, the rights guaranteed by the CFR serve the same purpose as constitutionally guaranteed rights in the autonomous Austrian legal order. In view of this similarity it would counter the notion of a centralised constitutional jurisdiction provided for in the Austrian Federal Constitution if the Constitutional Court were not competent to adjudicate on largely congruent rights such as those contained in the CFR. The judgment U 466/11 of the Constitutional Court is published on the website of the Court in German and English.