Constitutional review in Austria Traditions and New Developments International Conference dedicated to the 20 th anniversary of the Constitutional Court of Romania Gabriele Kucsko-Stadlmayer, Constitutional Court Austria 1. Emergence of Constitutional Review in Austria The Austrian Constitutional Court has a long tradition, dating back to the 19 th century and the first constitutional movements. In 1867 the first constitution of the Austrian empire instituted a new court, the Reichsgericht, vested with the power to declare administrative acts as unconstitutional if they violated fundamental rights called political as the right to vote, the right of membership to a political party or the freedom of expression. Thus 1867 was the year, when the idea of effective and enforceable constitutional guarantees arose. However, a judicial review of the legislation did not exist in these times. It was in 1920, when the Federal Constitution of the Republic 1 established the Constitutional Court as we have it today: with a comprehensive power of a judicial review of laws for their conformity with the constitution and additional competencies to enforce criminal law against high governmental authorities, to supervise the regularity of elections and referenda, international treaties and ordinances and to protect fundamental rights against last instance individual administrative decisions. The concept was new in Europe. It had been designed by Hans Kelsen, law professor at the University of Vienna, well renowned as father of the Austrian Constitution and the new European system of constitutional justice. 2 The so called Kelsenian concept establishes constitutional justice as a part of the judicial power. It is exercised by real judges in a centralized court, specialized on constitutional questions. The concept was opposed to the system of incident judicial review as exercised in the US. In Austria it did surpass several constitutional changes and after an interruption during the authoritarian regimes from 1933 to 1945 still exists today. 1 Bundes Verfassungsgesetz 1920 (B VG), BGBl 1920/ idf BGBl I 2012/1. 2 H. Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, 1929, VVDStRL 30, 5. 1
2. Legislative Review by the Constitutional Court The core element of the Constitutional Court s powers is the legislative review. Compared to the French system the Austrian concept has three major characteristics. 1. It is an a posteriori review concerning only laws already enacted. 2. It grants the power to rescind the legal provisions that were found unconstitutional so that they go out of force. 3. Even private individuals have access to this review. Concerning the major issue of access the Austrian Constitution distinguishes two different types of constitutional review: concrete judicial review, originating from pending individual cases, and abstract judicial review, not linked with any case. Abstract judicial review is based on the federal structure of the Austrian Constitution. The Court pronounces, on the request of the Federal Government, whether a state law is unconstitutional, and likewise on request of a State Cabinet, whether a federal law is in conflict with the constitution. Also, one third of the chambers of parliament s members may challenge the constitutionality of a federal law. This is an important political instrument for minority parties if they have a sufficiently strong representation in parliament. However, abstract judicial review is a very small part of the Court s docket (3 %). Concrete judicial review has much more practical importance. It may be launched by courts and tribunals if they have to apply a legal provision which gives cause for constitutional concern in a pending case, but even by the Constitutional Court itself. This ex officio constitutional review may be initiated in a pending proceeding if individuals claim that their fundamental rights have been infringed upon administrative authorities and the court concludes that the applicable statute may violate constitutionally guaranteed rights. This type of review is rather frequent. Many of these cases end with a rescission: 33 from 36 such cases in 2011. Finally, private individuals may challenge a law directly, provided that they are directly affected by a specific provision and have no other means of bringing their case to the Constitutional Court. In whole, the annual report of the Court from 2011 shows 250 cases of legislative review from which 72 (30 %) ended with a rescission. In an overall survey, constitutional review is considered as a core element of the principle of Rechtsstaat one of the basic principles of the Austrian constitution like democracy, federalism, liberalism and the separation of powers. It is estimated as crucial for legal protection of individuals. In a decision of 1998 the Constitutional Court saw this legal protection endangered when legal regulations were extensively 2
enacted as constitutional provisions that subsequently prevented the court from assessing whether these laws adhered to the constitution. This, the constitutional court noted, if taken too frequently, could undermine constitutional review and thus interfere with the basic principle of Rechtsstaat. 3 With these arguments in 2001 the court rescinded a constitutional law for violating this basic principle. 4 Thus, according to the Courts jurisprudence, constitutional review even sets limits for amending the constitution. 3. New Developments a. European Convention of Human Rights Even if the main structures of constitutional review have persisted in the past century, the Courts tasks have undergone significant changes, arising from big constitutional reforms in other respects. One of them was the ratification of the European Human Rights Convention 5 that brought a large and unforeseen step in the development of fundamental rights and freedoms. In 1964 the convention was adopted at rank of constitutional law and made directly applicable. Any complaint filed with the Constitutional Court may invoke the guaranteed rights of the Convention. As is well known, the ECtHR in Strasbourg has developed its jurisprudence dynamically, and the Constitutional Court, albeit reluctantly in the beginning, more and more followed European case law. Thus, fundamental rights obtained a major role as a standard for constitutional review, particularly the procedural guarantees (art. 6 ECHR) and the right to private and family life (art. 8 ECHR). As a result the constitutional court had to enforce significant changes in several fields of law such as the system of administrative review, criminal law proceedings or parental custody. An influence of general, methodological importance was the introduction of the proportionality test that, following the Strasbourg jurisprudence, has to be integrated in every review of state action against convention rights. This extraordinary flexible standard of constitutional review Kelsen would have rejected with arguments of democratic theory. b. Charter of Fundamental Rights of the European Union 3 VfSlg 11.756/1988. 4 VfSlg 16.327/2001. 5 BGBl 1958/210. 3
A completely new development has occurred by the Lisbon Treaty of the European Union with the Fundamental Rights Charter. In the first years after Austrian s access to the EU in 1995, the Constitutional Court had not applied European freedoms and principles in the rank of constitutional guarantees with the consequence that the Court could not measure laws for their conformity with EU primary law, in particular the four freedoms. In so doing the Court largely denied his competence to supervise legislation and administrative acts for their conformity with EU law and delegated this supervision to the Administrative court. But the situation changed when the Fundamental Rights Charter entered into force in 2009. Now the Court could not any more deny the direct effect of these rights and had to recognize their similarity to other fundamental rights, guaranteed by the constitution and the Human Rights Convention. Thus, in a finding of 14 March 2012 the Court overruled his jurisprudence. 6 Now the rights of the Charter are considered as constitutionally guaranteed rights that can be directly enforced before the Court. This creates a sort of union law review and integrates it into the traditional constitutional review. These findings are practically very important, because in several concerns the rights of the Charter exceed those of the Human Rights Convention. However as to the social rights of the Charter it is unclear how and in which extent they will be made justiciable before the Constitutional Court. c. Reform of Administrative Justice As already mentioned, Austria s system of administrative review had to undergo substantial changes because of article 6 of the Convention and its interpretation by the ECtHR in Strasbourg. The traditional Austrian concept one sole, centralized Administrative Court, reviewing all administrative rulings on their illegality, being able to repeal them, but not to go into the merits of the case clashed with article 6 that exceeded a comprehensive judicial review in all cases of civil rights and criminal charges in broad terms. To fulfill these requirements beginning in the late 1980s numerous independent panels with the respective powers were installed. 7 But this was not the end of the history. After long lasting discussions, an amendment of the constitution recently accomplished a big reform of administrative justice, introducing 9 state administrative courts and 2 federal courts of first instance. Beginning with 1 6 VfGH 14. 3. 2012, U 466/11. 7 BGBl 1988/685. 4
January 2014, they will have to decide before an appeal to the central Administrative Court or to the Constitutional Court can be filed. 8 However this will not essentially change the system of access to the Court. It will particularly not open any route of complaint against the decisions of the Administrative Court and the Supreme Court to the Constitutional Court if a violation of fundamental rights is claimed as we know it from the German system of constitutional review. So the big workload of the Court (4400 complaints in 2011) will not decrease. This issue will probably dominate the discussion in the coming century. 8 Verwaltungsgerichtsbarkeits Novelle, BGBl I 2012/51. 5