Constitutional principle of certainty (Austria)

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The principle of certainty in Austrian constitutional law (constitutional law) defines that laws and ordinances in the sense of the rule of law (legality principle) must have a certain degree of certainty so that they meet the requirements of a constitutional state (clarity requirement).

Laws that are too vague give the administration too much room for maneuver (authorization, formal legal delegation ), so that under certain circumstances these violate the constitution. The constitutional principle of certainty is derived from Art. 18 Paragraph 1 B-VG : “ The entire state administration may only be exercised on the basis of the law ”. In part, the principle of certainty is also based on the principle of granting effective (adequate) legal protection.

Whether a standard corresponds to the principle of certainty depends not only on its wording, but also

  • according to their history and
  • the subject matter and purpose of the regulation

The principle of certainty can also be violated by the fact that certain provisions are only partially repealed and a loophole would arise with regard to the applicability of the provisions remaining in the legal framework, so that the remaining provisions would become incomprehensible or inapplicable.

With regard to the law-making of the European Union, the Austrian Constitutional Court recognizes in consistent case law, also with regard to the principle of certainty, that the legislature is not constitutionally prohibited from referring to the legal situation created by another legislative authority, " this legal situation or the enforcement acts based on it for To make an element of its own regulation. The decisive criterion of such a - constitutionally permissible - factual link to foreign norms or enforcement acts is that the (foreign) norm raised as an element of the offense is not implemented in the constitutional sense, but merely based on its preliminary assessment of the content of the implementation of the own norm (cf.VfSlg 8161/1977, 9546/1982, 12.384 / 1990) ".

When determining the content of a legal regulation and checking whether the principle of certainty has been violated, according to the legal opinion of the Austrian Constitutional Court, all options available for interpretation must be exhausted. Only when, after all the interpretation methods have been used, it is not yet possible to assess what the law authorizes, the regulation according to Art. 18 B-VG is violated.

Differentiated legality requirement

The legislature is more or less bound by the principle of certainty, depending on the regulatory material (differentiated legality requirement). There are strict ties to encroachments on fundamental rights, provisions in criminal law, tax law and social security law. Less strict ties e.g. B. in business law. and in the context of private business administration.

See also

Individual evidence

  1. ↑ See e.g. E.g .: VfSlg 3207/1957; VfSlg 4037/1961; VfSlg 8695/1979; VfSlg 6355/1971, for the blanket penal norm cf. z. B. VfSlg 6896/1972, on indefinite legal terms cf. z. B. VfSlg 6477/1971; VfSlg 11.776 / 1988; VfSlg 13.785 / 1994.
  2. ↑ See: VfSlg. 11.776, 13.012, 13.233 and 14.606.
  3. ↑ See e.g. E.g .: VfSlg 8209/1977, 9883/1983 and 12.947 / 1991.
  4. ↑ VfSlg 13.740 / 1994; 16,869/2003; VfGH December 9, 2014, G136 / 2014, G203 / 2014.
  5. ↑ See VfSlg 19.645 / 2012 mwH.
  6. ↑ See z. B. VfSlg 5993/1969, 7163/1973, 7521/1975, 8209/1977, 8395/1978, 11.499 / 1987, 14.466 / 1996, 14.631 / 1996 and 15.493 / 1999 as well as 16.137 / 2001 and 16.635 / 2002.
  7. ↑ See e.g. E.g .: VfSlg 10.737.
  8. ↑ VSlg 14.070 / 1995; 13,785 / 1994; for an adequate degree of determination cf. z. B. VfSlg 13.785 / 1994.