Rapport national / National report / Landesbericht / национальный доклад AUTRICHE AUSTRIA ÖSTERREICH АВСТРИЯ

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1 Rapport national / National report / Landesbericht / национальный доклад AUTRICHE AUSTRIA ÖSTERREICH АВСТРИЯ The Constitutional Court of the Republic of Austria (Verfassungsgerichtshof der Republik Österreich) Anglais / English / Englisch / английский 1

2 XVIIth Congress of the Conference of European Constitutional Courts Georg Lienbacher, Austrian Constitutional Court I. The role of the constitutional court in defining and applying explicit/implicit constitutional principles 1. Does the constitutional court or an equivalent body exercising the power of constitutional review (hereinafter referred to as the constitutional court) invoke certain constitutional principles (e.g. separation of powers, checks and balances, the rule of law, equal treatment and non-discrimination, proportionality, reasonableness, human dignity) in the process of constitutional review? To what extent does the constitutional court invoke these principles? Does the Constitution or any other legal act regulate the scope of constitutional decisionmaking by referring to specific legal sources within the framework of the law that the constitutional court may apply in its reasoning? This question has to be answered at two levels. At the first level, there are the fundamental principles, which introduce a constitutional hierarchy insofar as they determine the creation ofall other constitutional law in its entirety and can be adjudicated by the Constitutional Court, since their substantial impairment or elimination represents a total revision of the Constitution which, pursuant to Article 44(3) of the Constitution, is subject to more demanding conditions than the remaining body of constitutional law. At the second level, general principles can be derived from individual fundamental rights and individual constitutional provisions, which are immanent to and implicit in the constitutional provisions and can be applied by the Constitutional Court as part of these constitutional provisions. However, such principles can impact on legislation below the constitutional level and in the course of the judicial review of executive legal acts only in conjunction with the constitutional provisions they are assigned to or derived from. The ( ordinary ) constitutional legislator (in contrast to the one of a total revision ) can restrict or even eliminate those principles derived from constitutional provisions by the Constitutional Court and has already done so on several occasions 1. 1 See Question I.1 point b). 2

3 a) The first level: The Austrian Constitution is based on a number of fundamental principles which enjoy a higher rank than the rest of the ordinary constitutional law. The existence of these principles has its constitutional basis in Article 44 of the Constitution 2 which regulates the conditions for the creation of formal constitutional law. Article 44 of the Constitution distinguishes between a partial revision and a total revision of the Constitution 3.The Constitution does not define the substantive prerequisites for a total revision. According to the case law of the Constitutional Court and in line with legal doctrine, a total revision of the Constitution is considered necessary if fundamental principles of the Constitution are either eliminated or substantially modified. The frequent occurrence of partial revisions of the fundamental principles may also result in the elimination or substantial modification of such principles 4.The fact of a total revision, as referred to in Article 44 of the Constitution, is determined in material and substantive terms, respectively 5. The Constitution does not enlist its fundamental principles. Therefore, the number of fundamental principles and, above all, their content to be derived from the overall context of the Constitution by way of interpretation is a controversial issue. However, there is general agreement on the existence of the following principles 6 : Democratic principle Republican principle Federal principle Principle of the rule of law (including the principle of the separation of powers and the liberal principle) The democratic, republic and federal principles, although enshrined in the solemn 2 The Constitution of 1 October 1920 (Federal Law Gazette I 1/1920) in force today, which re-entered into force in 1945 in the re-published version of Federal Law Gazette 1/1930, is the central source of Austrian constitutional law and was Austria s first democratic Constitution. Unlike in many other countries, (federal) constitutional law in Austria is not subject to a requirement of incorporation. Besides the Constitution, there are other constitutional acts and constitutional provisions in ordinary law which, taken together, constitute the body of federal constitutional law. 3 For details on the procedure to amend constitutional law, see II. 3 below. 4 For instance, any shift of legislative powers between the federal government and the provinces affects the federal principle. As of when such shifts in legislative power affect the federal principle to an extent that leads to a total revision and must therefore be submitted to a referendum, is a controversial issue difficult to resolve (see Öhlinger/Eberhard, Verfassungsrecht 11 (2016) point Instead of all Berka, Verfassungsrecht 6 (2016) point See e.g. Rill/Schäffer, Art 44 B-VG, in: Kneihs/Lienbacher (ed.), Rill-Schäffer-Kommentar Bundesverfassungsrecht(14. Lfg 2014) point 40; Mayer/Kucsko-Stadlmayer/Stöger, Bundesverfassungsrecht 11 (2015) point

4 declarations and programmatic provisions of Article 1 7 and Article 2(1) 8, are defined in more specific terms in the Constitution or rather in all the constitutional provisions referring to the respective fundamental principles 9. Moreover, it is generally agreed that the Constitution is characterized by the fundamental principles such as the rule of law, the liberal principle and the separation of powers. However, opinions differ as to whether these are fundamental principles in their own right or (merely) different manifestations of a single fundamental principle, i.e. the principle of the rule of law. There are cogent arguments in favour of associating the liberal principle and the principle of the separation of powers with the principle of the rule of law, as the separation of the functions of the state as well as the effective protection of fundamental rights, to which the liberal principle refers, can be interpreted as integral components of the rule of law 10.Although the principle of the rule of law is not explicitly mentioned in the Constitution, it finds expression in the comprehensive applicability of the principle of legality (Article 18 of the Constitution), the constitutionally guaranteed protection of rights (Articles 82ff and 129ff of the Constitution), the principle of the separation of powers (Article 94(1) of the Constitution), and the catalogues of fundamental and human rights laid down in the Basic Law on the General Rights of Nationals (Staatsgrundgesetz, StGG) and the European Convention on Human Rights (ECHR). This difference, which is a subject of scholarly debate, is of no importance in practice. Whether a violation of an specific liberal principle entails the requirement of a total revision of the Constitution, or if the principle of the rule of law, as enshrined in the Constitution, is substantially changed through such violation (given that the liberal principle is a substantial component of the principle of the rule of law) and therefore necessitates a total revision of the Constitution, the consequences in terms of constitutional law are the same. The Constitutional Court has always played a decisive role in establishing the content of the individual fundamental principles of the Constitution. Originally, the Constitutional Court considered the review of ordinary federal and provincial laws against the standard of the Constitution was its key task and that the review of constitutional law did not fall within 7 Austria is a democratic republic. Its law emanates from the people. 8 Austria is a federal state. 9 For the democratic fundamental principle, these are Article 26 (regarding the principles governing elections to the National Council), Article 41ff (regarding the federal legislative procedure) and Article 95ff (regarding legislation and enforcement by the provinces). For the federal principle, reference can be made to the provisions on the division of powers pursuant to Article 10ff or the provisions regarding the Federal Council (Article34ff). 10 See Berka, Verfassungsrecht 6, point

5 thescope of its jurisdiction according to Article 140 of the Constitution, specifying the Constitutional Court s power of norm review without explicitly including constitutional acts. In the opinion then held by the Constitutional Court, the Court does not have the power to substantively review constitutional acts against the standard of the Constitution or, more precisely, against the standard of the fundamental principles of the Constitution. In 1948 (Compendium of Constitutional Court Decisions, VfSlg. 1607/1948), the Constitutional Court pronounced in respect of the National Socialism Prohibition Act of and that the idea of subjecting these acts, which form part of the Constitution as constitutional acts, to legal review by the Constitutional Court is completely mistaken. Moreover, the Court held that none of the provisions of Article 137ff of the Constitution empowered it to review constitutional acts for the constitutionality of their content * + nor was such review at all possible in the absence of any standard to be applied. The change in the case law of the Court occurred with its 1952 decision (VfSlg. 2455/1952), in which the Constitutional Court,for the first time, outlined in detail the prerequisites under which it did have the power to perform a substantive review of constitutional acts 13. In support of its review power, the Constitutional Court argued that it is called upon to review the formal requirements to be met in the making of a constitutional law and, consequently, is also empowered to examine if the constitutional act concerned should have been submitted to a referendum pursuant to Article 44(3) of the Constitution 14. Thus, the Court held that assessing the substance of the constitutional provision to be reviewed is indirectly part of the prior issue to be clarified in the constitutional court proceedings. Hence, the decisive question concerned the interpretation of the fact of a total revision of the Constitution. In accordance with the case law of the Constitutional Court, this is to be understood as a modification affecting one of the guiding principles of the Constitution. Subsequently, the Constitutional Court explicitly identified the democratic principle, the principle of the rule of law and the federal principle as such guiding principles. Thus, the Königsidee (brilliant idea) 15 of unconstitutional constitutional law was born and the notion of a total revision 11 Constitutional Act of 8 May 1945 on the Prohibition of National Socialism, State Law Gazette 13/ Amendment to the Constitutional Act on the Prohibition of National Socialism of 6 February 1947 on the Treatment of National Socialists, Federal Law Gazette 25/ See also VfSlg. 1708/ Until Federal Law Gazette 490/1984 same wording in Article 44(2) Constitution. 15 Pernthaler, VfGH hebt erstmals Verfassungsbestimmung auf, JBl 2002, 98 (103f). 5

6 became inseparably linked with the fundamental principles of the Constitution 16. b) The second level: In its extensive case law, the Constitutional Court repeatedly derived fundamental principles from constitutional provisions as being implied therein, although they are not explicitly referred to. Therefore, such principles are an integral part of the constitutional provisions from which they are derived. Their determining influence on legislation takes effect at a level below the constitutional level. At the same time, they constitute the standard to be applied in the review of executive legal acts. The ( ordinary ) constitutional legislator (in cases other than a total revision ) can counteract such principles derived by the Constitutional Court from constitutional provisions by restricting or eliminating them, which has already happened on several occasions 17. The following examples of case law in the field of fundamental rights and the division of powers among the entities of the federal state, from which such principles emanated in the context of individual constitutional provisions, are to be mentioned here: The general requirement of objectivity, consistently derived from the principle of equality in the case law of the Constitutional Court, is frequently referred to in the area of fundamental rights. The equality review is detached from the comparison of different facts. Instead, considerations focus on whether there are objective reasons for a given provision. Extra-legal assessments come into play. In the literature, the Constitutional Court is blamed for evident development of the law, which ought to be reserved for the constitutional legislator 18. This objectivity review is often perceived as a general review of proportionality 19. However, the proportionality review also plays an important role in the context of the application of individual fundamental rights. Even though there is no explicit reference to it in the wording of the individual fundamental rights guarantees, it is an essential element in the evaluation of interference of fundamental rights that are subject to substantive legal reservation 20. However, it is also applied in the case of fundamental rights that are subject to formal legal reservation. 16 See Gamper, Die Rolle der Bauprinzipien in der Judikatur des österreichischen Verfassungsgerichtshofes, in: Häberle (ed.), Jahrbuch des öffentlichen Rechts der Gegenwart (2007) 537 (539). 17 See, for instance, the references in footnote See from the jurisprudence of the Constitutional Court: VfSlg /2000, 18110/2007, 18219/2007; Mayer/Kucsko-Stadlmayer/Stöger, Bundesverfassungsrecht 11 (2015) point 1360; Holoubek, ÖZW 1991, See from the jurisprudence of the Constitutional Court: VfSlg.14503/1996, 15771/2000, 17890/ Mayer/Kucsko-Stadlmayer/Stöger, Bundesverfassungsrecht 11 (2015) point 1340 withfurtherreferences. 6

7 The protection of legitimate expectations is closely associated with and also derived from the principle of equality. According to the case law of the Constitutional Court, retroactive legal provisions, interferences with legal positions and the frustration of factual arrangements made on the basis of trust in the law are unconstitutional 21. Finally, the theory of the essence of rights (Wesensgehaltstheorie) needs to be mentioned in the context of fundamental rights. It can be taken as the precursor of the aforementioned proportionality review in the interpretation of the individual fundamental rights. In its case law, the Constitutional Court holds that in formal legal reservationsattached to fundamental rights, such limitations must not infringe the essence of a fundamental right. This would be the case if suchlegal reservationswere equivalent to its annulment. In the meantime, this case law has been replaced by the more stringent proportionality review developed with regard to fundamental rights subject to substantive legal reservations, which is now also applied to fundamental rights subject to formal legal reservations 22. As regards the division of tasks of the federal state, the Constitutional Court, in its case law on the division of powers between the federal level and the provincial level, has also developed a number of principles which are not explicitly referred to in the corresponding constitutional provisions. Here are some examples: In the interpretation of powers, reference is frequently made to the so-called Versteinerungstheorie ( theory of petrification more or less equivalent to the notion of originalism in the USA). The individual terms used in the provisions regulating the division of powers (usually without detailed explanation) are assigned the meaning which they had at the time of their entry into force and adoption on the basis of the legal system in place at that time. Detailed explanations of this concept are contained in the answer to Question I The federalist doctrine of interpretation of constitutional provisions governing the division of powers is another principle not explicitly mentioned in the Constitution 24. The principle of taking into account (Berücksichtigungsprinzip) is yet another example to be mentioned in this context. In its case law, the Constitutional Court obliges the 21 Mayer/Kucsko-Stadlmayer/Stöger, Bundesverfassungsrecht 11 (2015) point 1365ff withfurtherreferences. 22 See Öhlinger/Eberhard, Verfassungsrecht 11 (2016) See alsowiederin, Theorien als Methoden der Kompetenzinterpretation, ZfV 2015, 236ff (237f) withfurtherreferences. 24 See alsowiederin, Theorien als Methoden der Kompetenzinterpretation, ZfV 2015, 236ff (240f) withfurtherreferences. 7

8 respectivelegislator to take the rules and regulations of the other territorial authority into account; it even holds this to be obligatory in that it pronounces a legal provision to be unconstitutional, if it does not take the materially unjustified impairment of the effectiveness of the rules and regulations of the opposing territorial authority into account 25. Finally, the principle of exclusiveness and completeness of the division of powers, as elaborated by the Constitutional Court in its case law, is to be mentioned in this context. The division of powers refers to all subjects of legislation and execution, and it is based on the principle of strict separation of powers, granting exclusive powers to the federal level and the provinces. Any sovereign action by the state must be assigned to certain established powers in order to exclude competing powers What constitutional principles are considered tobe organic in your jurisdiction? Are there any explicit provisions in the Constitution establishing fundamental principles? Is there any case law in respect of basic principles? How often does the Constitutional Court make reference to those principles? This question refers to the fundamental principles of the Constitution dealt with in the answer to Question I.1 under point a). As already stated, the concrete content of the individual fundamental principles is controversial. The principles have been specified to different degrees in the case law of the Constitutional Court. While there is no relevantcase law on the republican principle 27, the democratic principle, the federal principle and, above all, the principle of the rule of law have played a highly significant role in the case law of the Constitutional Court: In its landmark ruling of 1952 (VfSlg. 2455/1952), the Constitutional Court pronounced on the federal principle by qualifying the elimination of the Federal Council or a general exclusion of the division of powers between the federal level and the provinces as potential infringements of this fundamental principle. The Constitutional Court also included the system of indirect federal administration among the essential elements of implementation of the federal principle and therefore regarded its undermining to be in violation of this very principle Öhlinger/Eberhard, Verfassungsrecht 11 (2016) point 284ff; Wiederin, Theorien als Methoden der Kompetenzinterpretation, ZfV 2015, 236ff (241f) eachwithfurtherreferences. 26 Öhlinger/Eberhard, Verfassungsrecht 11 (2016) point 271ff. 27 This principle plays a minor role in the literature. However, seemostrecentlyvašek, Unabänderliches Verfassungsrecht und Revisionsschranken in der österreichischen Bundesverfassung (2013) 28 VfSlg /

9 The Constitutional Court furthermore pronounced that in accordance with the federal principle, the provinces hold the position of states (member states) 29, that the separation of the executive branches of the federal government and the provincial government is inherent in the essence of the federal principle 30, and that the principle of federal law taking precedence over provincial law does not apply to the Austrian Constitution 31. Moreover, the Constitutional Court held that the (relative) constitutional autonomy of the provinces 32 is necessarily linked with the federal principle 33. As regards the democratic principle, the Constitutional Court has consistently held that its substance implies a representative parliamentary system, with elements of direct democracy permitted only on an exceptional basis 34. Thus, limits were repeatedly imposed upon the provincial constitutional legislator as regards the design of the electoral regulations for the provincial parliaments and the municipal councils 35. The existence and diversity of political parties was declared to be an essential component of the democratic order 36. The possibility for voters to form parties standing for election is regarded as an essential feature of democratic elections based on the principle of proportionality 37. Moreover, according to the case law of the Constitutional Court, the democratic principle demands that the relevant bodies entrusted with the tasks of legislation and execution be appointed or confirmed through periodic elections 38. The Constitutional Court also referred to the principle of equality as an essential component of the democratic principle 39. It is beyond doubt that the principle of the rule of law has always played the most important role in the case law of the Constitutional Court 40. This fundamental principle is not yet 29 VfSlg. 2092/ VfSlg. 4413/1963; see earlier decision, VfSlG. 1030/1928 and 1882/ VfSlg. 1882/1949; 7593/ See Art.99 Constitution. 33 VfSlg / E.g. in connection with the repeal of certain provisions of the local election regulations of the Province of the Tyrol, which provided for direct election of mayors(vfslg /1993);seegamper,bauprinzipien, 557ff. See also VfSlg /2001, where the Constitutional Court pronounced the limitation and/or restriction of the use of referenda in the legislative procedure to be an essential element of ( ) the fundamental principle of representative (parliamentary) democracy enshrined in the Constitution. 35 See e.g. VfSlg.3134/1956; 6106/1969; /1988; /1989; / See e.g. VfSlg3426/1958; 7593/1975; /1997. See also wording ofthe constitutional provision of sect.1. para.1 of the Act on Political Parties (first introduced through Federal Law Gazette 404/1975). 37 VfSlg3969/ VfSlg10.306/1984. SeeLienbacher, Art 27, in Korinek/Holoubek et al (ed.), Bundesverfassungsrecht, 12. Lfg (2016) point3. 39 VfSlg /1998. On the connecting points between democracy and the principle of equality, see also Pöschl, Gleichheit vor dem Gesetz (2008) 120, 127, 182, See details in Hiesel, Die Rechtsstaatsjudikatur des Verfassungsgerichtshofes, ÖJZ 1999, 522; Die Entfaltung 9

10 mentioned in any of the literature of the First Republic 41. It was Ludwig Adamovich (sen) who first referred to the principle of the rule of law as a fundamental principle of the Constitution in the fourth edition of his textbook Grundriss des österreichischenverfassungsrechts published in The Constitutional Court referred to it for the first time in its landmark ruling of 1952 (VfSlg. 2455/1952), stating that it corresponds to the principle of the rule of law that all acts performed by state bodies must be based in the law and, indirectly, the Constitution, and effective legal safeguards are provided to ensure compliance with this requirement. Subsequently, the scope of this wording was extended, referring to the need for a system of legal safeguards which guarantee that only those acts are permanently secured in their legal existence which were adopted in accordance with the higher-level legal acts they are derived from. 42 Thus, the Constitutional Court declares compliance with the hierarchy of the legal order and the existence of legal safeguards guaranteeing compliance to be central to the principle of the rule of law. In this context, the requirement for sovereign acts interfering with the rights of those governed by the law to take a form that does not diminish the constitutionally guaranteed protection by the law and permits a substantive review of the act (for its compliance with the relevant legal and constitutional provisions) was subsequently derived from the principle of the rule of law (so-called relative coherence of the constitutional system of legal sources 43 ) 44. At the same time, the Constitutional Court held that the power of the Constitutional Court to review the legality of regulations and the review of the public administration by the Supreme Administrative Court are to be regarded as essential components of the principle of the rule of law 45. At a later point in time, the Court generally stated that the power of the Constitutional Court to review laws is a central element of the principle of the rule of law der Rechtsstaatsjudikatur des Verfassungsgerichtshofs, ÖJZ 2009, 111; Entwicklungen der Rechtsstaatsjudikatur des Verfassungsgerichtshofs, ÖJZ 2016, Hiesel, Rechtsstaatsjudikatur, ÖJZ 1999, FN VfSlg.2930/1955; 8279/1978; recently VfSlg /2001; /2002; CC of Austria ,G 171/2014 and others. While the 1952 landmark ruling did not yet refer to the aforementioned quote from Adamovic (sen), such reference is contained in VfSlg 2930/ See VfSlg /2006. With frequent references to the legislator s obligation to apply existing law, VfSlg /2004; /2009;19.157/2010; also VfSlg 3892/1961; / See VfSlg /2000; /2009; /2010; /2012; similarly /2009; see also VfSlg /1992 and /1994 regarding provisions which inadmissibly excluded administrative notices and construed the administrative acts as enunciations that cannot be appealed against. 45 VfSlg /

11 enshrined in the Austrian Constitution 46. Since the mid-1980s, the Constitutional Court has developed a comprehensive case law in which it derived certain (minimum) requirements for the design of the system of protection by the law from the principle of the rule of law. In its decision of 1986 (VfSlg /1986), it pronounced that the instruments for the protection of rights in accordance with their purpose, must have a certain minimum measure of factual efficiency for the individual demanding such protection and that it is not acceptable to burden the individual in need of such protection unilaterally with all the consequences of a potentially unlawful decision by an authority of the state until the application for the protection of rights has been finally dealt with. On this basis 47, the general exclusion of the suspensive effect of legal remedies provided for by the legislator was declared unconstitutional 48, as well as extremely short deadlines for appeals 49. From the principle of the rule of law, the Constitutional Court derived the obligation to provide for legal remedy against court decisions 50. The Constitutional Court repeatedly pronounced that the principle of the rule of law demands that certain minimum requirements be met in the reasoning of court decisions. The facts of the case, the evidence heard and considered, and the legal assessment must emerge from the court decision itself, as this is the only way to enable the Constitutional Court to perform the legal review required under the rule of law 51. Finally, the Constitutional Court also derived certain publication requirements from the principle of the rule of law. It held that it follows from the notion of publicity of the 46 VfSlg /1998; /2001.See also VfSlg /2006, which speaks of the review of general norms as a central element of the rule of law as being within the sole power of the Constitutional Court. 47 See also VfSlg /2004, in which the Constitutional Court explicitly pronounced that the effectiveness of protection by the law ( ) is an essential element of the principle of the rule of law. 48 The case concerned the general exclusion ofthe suspensive effect of an appeal in proceedings pursuant to the Federal Fiscal Code. VfSlg /1992 and /1992 concerned provisions (found to be too restrictive) regarding the suspensive effect of an appeal to the Provincial Governor in social security proceedings. In VfSlg /1995 the general and unconditional refusal ofthe suspensive effect of expulsions under the 1992 Aliens Act was held tobe incompatible with the principle ofthe rule of law, as well as the refusal of the appeal against certain negative decisions in asylum proceedings (VfSlg /2004) and the undifferentiated rule regarding the exclusion of protection from expulsion pursuant to sect. 12a(1) of the 2005 Asylum Act, as amended in Federal Law Gazette I 122/2009 (VfSlg /2014). See alsovfslg /1999 regarding the unconditional exclusion ofthe suspensive effect of an appeal in a case concerning unemployment benefits, VfSlg /1997 concerning an appeal against rates imposed pursuant tothe Act on the Chamber of Pharmacists, and VfSlg /2002 concerning appeals by neighbours under the Act on Commercial Installations. 49 Two-day deadline in asylum proceedings (VfSlg /1998; /1998; /1999). 50 SeeVfSlg /2002concerning a provision which unconditionally excluded appeals against decisions by the regional high court declaring expulsions to be permissible. See also VfSlg /2001 concerning the impossibility for a person finally acquitted to appeal against a decision to reopen the case to his disadvantage. 51 VfSlg /2008.See, most recently, CCof Austria , U 1349/2013; , U 1155/

12 substanceof the law that the legislator has to bring the content of the acts adoptedby it to the knowledge of a broad public in a clear and exhaustive manner. The reason being that if the purpose of the legal order is to induce people through the presentation of legal norms to act in accordance with such norms, the legislator must provide possibilities forsuch presentation 52.Therefore, the principle of the rule of law demands that those subject to the law are given the possibility of acting in accordance with the law 53. The principle of the rule of law also demands that legal provisions be comprehensible: Above all in the field of criminal law the legislator has to state clearly and unmistakably what it intends to punish and illegal acts or omissions must be defined in such a way as to be clearly understood by the individual. Only then can the individual be punished for violations of the law. The reason being that it is only on the basis of this interpretation, derived from the rule of law, that the citizen can be protected against the danger of arbitrary enforcement of the law 54. In its consistent case law, the Constitutional Court also holds that the principle of the rule of law enshrined in Article 18 paragraph 1 of the Constitution demands that laws must have a content that predetermines the acts of state bodies 55. In conclusion, it is important to note that the Constitutional Court derives the aforementioned fundamental principles from positive Austrian constitutional law above all from its central source, i.e. the Austrian Constitution but has elaborated and further developed their specific meaning. 3. Are there any implicit principles that are considered tobe an integral part ofthe Constitution? If yes, what is the rationale behind their existence? How have they evolved over time? Do they originate from certain legal sources (e.g. domestic constitutional law or the constitutional principles emanating from international or European law? Newly adopted principles or those taken over from earlier versions of the Constitution?) Have legal scholars or other groups in society contributed to the development of the principles laid down in the Constitution? 52 VfSlg. 3130/1956.See alsovfslg. 4865/1964, in which the Constitutional Court explicitly stated that the principle of the rule of law enshrined in the Constitution ( ) demands that regulations be published to a sufficient extent. 53 See VfSlg /1994; / VfSlg. 3208/1957.InVfSlg. 4037/1961 the Constitutional Court specified that these principles ( ) are of general importance and apply, in particular, to the content of criminal law. Accordingly, provisions of criminal law must be such that the individual governed by the law is able to understand their content before acting, the reason being that without this prerequisite, the primary purpose of a provision of criminal law, i.e. to prevent violations of the interest to be protected, cannot be achieved. See also, e.g. VfSlg /1991; /2004; /2008; /2009; and, most recently CCof Austria , G 531/2015 and others. 55 Most recently CCof Austria , G 606/2015 and others. In CC , B 782/12 and B 783/12 this requirement was called the requirement of legal certainty under the rule of law. 12

13 This question has been answered under the heading of Question I.1 and, in particular, Question I What role does the constitutional court play in defining the constitutional principles? How have the constitutional principles been laid down over time by the constitutional court? What method of interpretation (grammatical, textual, logical, historical, systematic, teleological, etc.) or combination of methods is applied by the constitutional court in defining and applying those principles? How much importance is attributed to additional sources (traveauxpréparatoires) or the preamble of the basic law in the definition and emergence of the constitutional principles? Are universally recognized legal norms of relevance in this process? In its interpretation of constitutional law, the Constitutional Court uses all the methods of interpretation referred to above 56. However, special emphasis may be placed on certain methods of interpretation in specific fields of law. For instance, in its consistent case law, the Constitutional Court holds that the formal requirements of electoral regulations must strictly be interpreted literally, which means that this method of interpretation takes priority over others, based on the specific content of the legal provision 57. At the same time, however, the Constitutional Court notes that in the area of fundamental rights, a purely literal interpretation does not do justice to their specific character 58. Instead, a teleological interpretation of fundamental rights is to be preferred, as it permits a dynamic and evolutionary understanding and is open to adaptations to changing legal and social conditions 59. As regards the interpretation of powers and their scope, the Constitutional Court has always referred to the originalist theory (Versteinerungstheorie) as a form of historical and systematic interpretation 60. According to this theory, the individual terms contained in the provisions regulating the division of powers (usually without detailed explanations) are assigned the meaning which they had at the time of their entry into force or adoption on the basis of the ordinary laws in effect at that time 61. However, this process of interpretation only 56 SeeVfSlg. 2175/1951, 2250/1951 and 4440/1963, in which reference is made to the general interpretation rules of Sect.6 of the General Code of Civil Law (sect.6 refers to literal interpretation, grammatical interpretation logical/systematic interpretation and interpretation of the legislator s will). 57 E.g.VfSlg /1998; see most recently also CCof Austria , W I 6/ See VfSlg / See Berka, Verfassungsrecht 6, point See, e.g.vfslg. 2500/1953 (Chambers of Trade, Commerce and Industry); 2685/1954 (Railways/Construction); /1992 (Discotheques); /1995 (Protection of classified monuments); /1997 (Mountains); /2003 (Commercial establishments/wine taverns). 61 In many cases, this date of petrification is assumed tobe 1 October 1925, when the general division of powers 13

14 petrifies the typical contents of the law, which has an impact on new regulatory requirements: Within the framework of the principle of intra-systematic evolution, the regulatory requirement at issue may not be within the powers of the provinces pursuant to Article 15 of the Constitution, but could be part of the petrified powers, if the matter relates to a systematic evolution of an existing regulatory approach 62. As already stated in the answer to Question I.1.b), the principle of taking into account, the exclusiveness and completeness of the division of powers, and the federalist interpretation principle are also worth mentioning. Nevertheless, apart from such interpretation methods,which are specific to the subject matter to be regulated, it would be wrong to assume that the Constitutional Court gives priority to one particular method of interpretation over others. In determining the content of a legal provision, i.e. in establishing what the legislator wanted or had in mind, all methods and means of interpretation must be available. In abstract terms, they are all equivalent. The prevalence of one particular method of interpretation can only emerge in the course of the concrete interpretation of specific conditions or the specific circumstances of the subject matter, respectively. This has to be disclosed and motivated 63. In the interpretation of the fundamental principles, the specific situation emerging from constitutional law has to be borne in mind, i.e. the fact that the fundamental principles serve as a connecting point in terms of procedural law in the event of their modification, on the one hand, but can only be derived systematically from the entirety of constitutional provisions in terms of substance, on the other hand. In this context, systematic interpretation has a special role to play, which is, however, put into perspective through the interpretation of the individual constitutional provisions referred to for the determination of the content of a fundamental principle. Conversely, interpretation in conformity with the fundamental principles of the Constitution plays an important role within the framework of logical/systematic interpretation, according to which, in case of doubt, a constitutional provision must not be interpreted as being in contradiction to the fundamental principles of the Constitution. Thus, the (ordinary) constitutional legislator is assumed to have intended the creation of a legal norm in harmony under the Constitution entered into force. See Constitutional Court jurisprudence VfSlg. 2721/1954, 2977/1956, 3109/1956, 5019/1965, 9543/1982, 9642/1983, 10831/1986, /1992, 13299/1992, 14266/1995. However, given that the division of powers was already decided in connection with the 1920 Constitution, reference to 1 October 1920 appears tobe justified, as the constitutional legislator based itself on ordinary law, which was no longer possible at the time of entry into force five years later. Therefore, contrary to jurisprudence quoted above, see also VfSlg. 2005/1950, 2217/1951; for an overview, seewiederin, AnmerkungenzurVersteinerungstheorie, Winkler FS (1997) 1231ff (1236ff). 62 SeeBerka, Verfassungsrecht 6, point 429ff. 63 SeeLienbacher, Hat der Wortlaut wirklich Vorrang?,ZfV 2015, 194ff (201). 14

15 with the fundamental principles 64. Within the framework of the historical interpretation of the Constitution, the intention of which is to establish what the constitutional legislator actually had in mind with the wording chosen 65, the travauxpreparatoires for the Constitution of 1 October 1920 are of significance. While the aforementioned theory of petrification is to be regarded as an instrument to establish the objective historical context of the creation of legal norms, reference to legal documents is intended to reflect the subjective will of the historical legislator. On numerous occasions, the Constitutional Court referred to documents and other materials from the period leading up to the adoption of the Constitution 66. In individual instances, these also played a role in the elaboration of the fundamental principles. In its decision of 2001 (VfSlg /2001), for instance, the Constitutional Court based its reasoning that the democratic principle, as expressed in the system of representative democracy and parliamentarism, does not allow genuine law-making by the people 67, primarily on statements contained in the relevant minutes of the sub-committee of the constitutional committee of the Constituent National Assembly. The Constitution was not prefaced by a preamble (which, by definition, would have contained references to religious or ideological values), which is not surprising, considering that the Constitution was the result of a difficult compromise reached between opposing political camps and that no agreement was reached on a number of essential issues (e.g. fundamental rights, provisions governing schools). Above all, it was Hans Kelsen, as the leadauthor of the text and a representative of the Pure Theory of Law, whose intention was to create a document of positive law which is to be interpreted in a purely normative sense and does not contain any general (non-normative) proclaiming statements What is the legal character ofthe constitutional principles? Are they considered to be the 64 SeeGamper, Bauprinzipien, 546f; Regeln der Verfassungsinterpretation (2012) 232ff. See the extensive caselaw, e.g. VfSlg. 8891/1980, /1987, /1988, /1988, /1988, /1988, /1988, /2000, / See, e.g.öhlinger/eberhard, Verfassungsrecht 11, point See, e.g.vfslg /1989, in which the Constitutional Court in its interpretation ofthe term the federal people in Art.26(1) of the Constitution besides a systematic interpretation also referred to the first preliminary draft by Kelsen and the draft by Renner and Mayr. 67 See footnote SeeBerka, Verfassungsrecht 6, point 28 ff; Schambeck, Österreichs Verfassungsrecht und seine Entwicklung, in Janko/Banaszak/Nocilla/Glaeser/Tomášek (Ed.), Herbert Schambeck. Beiträge zum Verfassungs- und Europarecht (2014) 65 (70ff). 15

16 original source of the existing constitutional system? How much emphasis is placed upon the constitutional principles by the constitutional court in relation to a particular constitutional right? Are the fundamental principles interpreted in isolation from the rights enumerated in the Constitution or does the constitutional court interpret the fundamental principles in conjunction with specific constitutional provisions as an additional method of interpretation of the latter? In your jurisprudence, can the fundamental principles constitute a specific ground for unconstitutionality without being associated with a concrete constitutional provision? Are there any legal requirements regarding acts of enforcement of constitutional principles? As already mentioned, the fundamental principles enjoy the highest rank in the hierarchy ofthe Austrian legal order. Therefore, we have to distinguish between two levels of constitutional law: ordinary constitutional law, which can be amended by way of a partial revision pursuant to Article 44(1) of the Constitution, and the higher-ranking fundamental principles, which can only be modified through a total revision pursuant of Article 44(3) of the Constitution. Consequently, the violation of a fundamental principle constitutes a special, qualified form of unconstitutionality, which obtains particular relevance if ordinary constitutional law is thus to be qualified as unconstitutional (in violation of a fundamental principle). Only once in its history has the Constitutional Court repealed an ordinary constitutional provision as being in violation of a fundamental principle 69. However, an explanation of the specific connection between the two fundamental principles (democratic principle and principle of the rule of law) violated by the repealed provision and the ordinary constitutional provisions, from which the repealed provision had been derived, was not provided. As a consequence of the inductive establishment of the fundamental principles from the entire body of constitutional law, there can be no fundamental principle that was not already in existence in 1920 or that was subsequently introduced or modified within the framework of a total revision. Therefore, any constitutional provision adopted by way of a partial revision can be eliminated by the same route, because the fundamental principles are not affected. If, however, such a constitutional provision is relevant in respect of the fundamental principles, the special procedure provided for a modification of the fundamental principles has to be 69 VfSlg /2001.The constitutional provision of sect.126a ofthe 1997 Federal Procurement Act, as amended in Federal Law Gazette I 125/2000,stipulated that constitutional provisions of provincial acts regarding the organization and powers of bodies responsible for the protection of rights in respect of the award of public orders, are not deemed to be in violation of the federal Constitution. The Constitutional Court held that according to this provision the entire federal constitutional law, including the Constitution and its fundamental principles and including the provision of Art.44(3) of the Constitution, would lose its relevance for a certain part of the legal order of the Provinces, and therefore had to be repealed as being in violation of the fundamental principles. 16

17 complied with. This is the only way for an amendment to the Constitution or a constitutional provision to evolve into a fundamental principle. In the history of the Austrian Constitution in its present form, the fundamental principles have only been modified once. In 1995, the fundamental principles in force at that time were modified through Austria s accession to the European Union in view of the functioning of the European Union and the associated loss of sovereignty for Austria so as to allow the modes of functioning of European law to be integrated into the Austrian legal order. It should be underlined, however, that this did not result in a complete opening to EU law. Yet another line would be crossed and another total revision of the Constitution (modification of its fundamental principles) would be required, if EU law were to undergo such significant changes, compared with the recast principles of 1995, that the latter would be substantially modified or eliminated 70. Furthermore, all those provisions that were already contained in the original version of the Constitution are not subject to review against the standard of the fundamental principles, because Article 44(3) of the Constitution posits a revision of the Constitution 71. However, this only applies subject to the limitation that the total revision of the Constitution in 1995 is not concerned. As regards the interpretation of the fundamental principles, it is important to underline once again that these are inductively derived from the body of constitutional law. Therefore, they are associated with specific ordinary constitutional provisions, but are interpreted separately by the Constitutional Court. Conversely, ordinary constitutional provisions may be interpreted in light of the inductively derived fundamental principles, so that, in case of doubt, they can be qualified as not being in contradiction to them (interpretation in conformity with the fundamental principles, see above). As regards the principles derived by the Constitutional Court from ordinary constitutional law, see Question I.1 b). 6. Which basic principles are applied most frequently by the constitutional court? Please 70 SeeRV 314 BlgNR 23. GP 9; Mayer/Kucsko-Stadlmayer/Stöger, Bundesverfassungsrecht 11 (2015) point 246/6b. 71 Cf.Wiederin, Verfassungsinterpretation in Österreich, in Lienbacher (Ed.), Verfassungsinterpretation ineuropa (2011) 81 (112), who also referstoopposingopinions. 17

18 describe one (or several) constitutional principle(s) that has (have) been significantly influenced by a ruling pronounced in the course of constitutional review. What has been the contribution of the constitutional court to the development of such principles? Please provide examples from the jurisprudence of the constitutional court. This question was answered in connection with Question I.2. II. Constitutional principles as higher norms? Is it possible to determine a hierarchy within the Constitution? Unamendable (eternal) provisions in the Constitution and judicial review of constitutional amendments 1. Do the constitutional principles enjoy a certain degree of superiority in relation to other basic law provisions? What is the relationship of constitutional principles and other constitutional provisions with international law and European Union law? Are there any provisions of international or European Union law that are deemed to take precedence over domestic constitutional principles? If so, how are such higher-ranking international provisions dealt with in relation to national constitutional principles? What is the prevailing legal opinion among academic scholars and practitioners as regards the primacy of certain constitutional principles over other basic law provisions? In the hierarchy ofthe Austrian legal order, the fundamental principles of the Constitution take precedence over European Union law. Union law takes precedence over ordinary constitutional law, and ordinary constitutional law takes precedence over ordinary (simplemajority) laws 72. a) Constitutional law and European Union law: In the case law of the Court of Justice of the European Union, the primacy of Union law over national law applies as a matter of principle 73. Union law can therefore replace Austrian constitutional law. However, in drafting the Federal Constitutional Act on the Accession of Austria to the European Union 74, which implemented the total revision of the Constitution, the constitutional legislator assumed an integration-proof core of the Constitution. This means that a certain part of Austrian constitutional law (in concrete terms: the fundamental principles) is excluded from the primacy of Union law 75. In fact, these fundamental principles were modified through the total revision necessitated by Austria s accession to the European Union in such a way as to permit the integration of the relevant functionalities of EU law, e.g. its primacy of application, into the Austrian legal order. Therefore, problems of constitutional 72 Öhlinger/Eberhard, Verfassungsrecht 11, point 9ff andpoint 156ff. 73 EuGH, Internationale Handelsgesellschaft, point 11/70, Slg 1970, Federal Law Gazette 744/ Öhlinger/Eberhard, Verfassungsrecht 11, point 9ff andpoint 156ff. 18