Constitutional Court (Austria)
|position||Supreme court responsible for constitutional jurisdiction|
|Headquarters||Vienna 1. , Freyung 8|
|Employee||102 non-judicial employees of
which 35 are available. Employees
|Budget volume||EUR 18 million (2021)|
The Austrian Constitutional Court (abbreviation VfGH ) is a court under public law with its seat in Vienna . As the only institution in Austria appointed to exercise constitutional jurisdiction, it is one of the most important institutions in the legal protection system of the Austrian Federal Constitution and, alongside the Administrative Court (VwGH) and the Supreme Court (OGH), one of three highest courts in Austria.
The competences of the Constitutional Court are finally regulated in the Federal Constitutional Law (B-VG), the organization and the procedure, however, only in their basic features. More detailed regulations are contained in the Constitutional Court Act 1953 (VfGG) and rules of procedure issued by the Constitutional Court on its basis. The Constitutional Court is the oldest constitutional court in the world authorized to review norms .
History of the Austrian constitutional jurisdiction
Constitutional jurisdiction in the monarchy
The Imperial Court of the Monarchy is generally regarded as the predecessor of the later Constitutional Court of the Republic of (German) Austria . This arose in the course of the considerations for the creation of the constitutional December constitution of 1867 as necessary to fill a gap in the February patent of 1861. The members of the constitutional committee of the House of Representatives of the Austrian Reichsrat , entrusted with the drafting of the December constitution , planned to create an institution with three different things Tasks to take over: guaranteeing the protection of the - now newly codified - constitutionally guaranteed political rights of the citizens, the impartial decision of certain conflicts of competence as well as the enforcement of claims, which were not of a private law nature, against the Reich and the individual components of it.
The Reichsgericht was introduced by the constitution of the State on the establishment of a Reichsgericht of December 21, 1867 and started its activity in Vienna on June 21, 1869. The first oral hearing was held by the Reichsgericht on November 29, 1869. It consisted of 14 members - this shows a correspondence with the later constitutional court - with the president and the vice-president as well as the twelve other members differently appointed by the emperor directly or at the suggestion of one of the two chambers of the Reichsrat. The last published findings of the Reichsgericht dated October 14, 1918, i.e. a few days before the collapse of the monarchy and the proclamation of the republic , although the Reichsgericht still existed formally as a provisional transitional institution for a few weeks during the republic.
The Constitutional Court of the interwar period
According to the prevailing view today in large parts of legal history, the state of (German) Austria was not only established with the resolution of the law on the state and form of government of German Austria and the subsequent public proclamation of the republic on November 12, 1918, but for a few days previously, namely on October 30th. On that day, the Provisional National Assembly passed the "Resolution on the Basic Institutions of State Power", Article 16 of which read as follows:
Due to this formulation, the Imperial Court of the Monarchy was not repealed without replacement, but was set up as a "provisional Imperial Court" of the state of German-Austria. However, this ceased its case law with the above-mentioned last findings and did not take up the decision-making activity in the early days of the republic. It is interesting in this regard that the members of the Reichsgericht still made a decision within the framework of a composite Senate on a conflict of jurisdiction between the Reichsgericht and the Administrative Court on November 11, 1918 - the only surviving decision of the Reichsgericht during the time of the German state of Austria.
The (German-) Austrian Constitutional Court 1919–1920
Just a few weeks after the former Reichsgericht was designated the “provisional Reichsgericht” of the new republic, the Constitutional Court was finally established as the Republic of German-Austria's own constitutional court. The law on the establishment of a German-Austrian constitutional court of January 25, 1919 formed the basis for the transfer of the powers previously exercised by the Reichsgericht to the newly created constitutional court. The preliminary draft for this law, which the Provisional National Assembly passed shortly before the transfer of legislative power to the elected Constituent National Assembly on January 25, 1919, comes from the pen of Hans Kelsen , who later became the authoritative co-creator of the Federal Constitution of 1920, who was instructed by State Chancellor Karl Renner took action.
The constitutional court that has now been established essentially only changed its name. In addition, the number of members was initially reduced to the President, the Vice-President, eight other members and four substitute members because Kelsen, as he stated in the comments on his draft, was of the opinion that the proposed number of twelve members was in view of the " reduced territorial competence ”too great. After the members of the Imperial Court had previously been appointed by the Emperor, this power of appointment was initially transferred to the new head of state of the republic, the Council of State . On February 24, 1919, the former President of the Reich Court, Karl Grabmayr , was formally handed over to the new President of the Constitutional Court, Paul Vittorelli . The Constitutional Court immediately started its judicial work and was able to make its first findings on March 10, 1919. In one of these first findings, however, the Constitutional Court stated that it did not see itself as a “continuation of the former Reich Court under a different name”, but rather to be a “newly created court”.
A significant expansion of the powers of the Constitutional Court took place in March 1919. Article 15 of the Act on Representation of the People created the possibility for the Constitutional Court to examine legislative resolutions of the state assemblies for their unconstitutionality at the request of the state government . Today, this provision is predominantly viewed as the beginning of the constitutional court's competence to review the law, although it was actually of no importance in the period up to the creation of the B-VG 1920, as there was not a single such review procedure during this time. Only a few weeks later, on April 3, 1919, there was a further expansion of competencies with a law that transferred the tasks of state jurisdiction (i.e. in particular the decision on indictments of ministers) to the Constitutional Court. With the same law, the number of members was increased again to 14 and thus brought into line with the status of the former Imperial Court. Shortly before, on March 30, 1919, the member of the Constitutional Court, Edmund Bernatzik, died . As his regular successor - and thus not due to the increase in the number of members that took place at the same time - Hans Kelsen, who was referred to by parts of the teaching as the spiritual “father” of the Constitutional Court, was appointed constitutional judge on May 3, 1919 .
The State Treaty of Saint-Germain required a nationwide name change: the state no longer bore the name “German Austria”, but only “Austria”. This had an impact on the Constitutional Court, as it was designated as the Constitutional Court of the Republic of Austria from July 21, 1920.
The Constitutional Court according to the B-VG 1920
The year 1920 brought a constitutional turning point for the young Republic of Austria: After the Constituent National Assembly had discussed and negotiated for months, the central constitutional act of the Austrian Federal Constitution was finally passed in its last session on October 1, 1920 with the Federal Constitutional Act, which began with the day the first session of the newly created National Council on November 10, 1920 came into force. This constitution was based on drafts by Hans Kelsen as well as contributions from the then State Chancellor Karl Renner and the later Federal Chancellor and member of the Constitutional Court, Michael Mayr . To this day it represents the central component of Austrian constitutional law and at the time of its original resolution contained in Articles 137 to 148 the essential provisions on the establishment, organization and jurisdiction of the Constitutional Court.
In the course of the introduction of the B-VG, the competences of the Constitutional Court were placed on a constitutional basis on the one hand and significantly expanded on the other. In addition to the previously existing jurisdiction, causal, electoral and state jurisdiction, the Constitutional Court was also given extended legal control powers (i.e. the right to review ordinances and laws for their constitutionality) as well as special administrative jurisdiction (the possibility of complaining about violations of constitutionally guaranteed rights to decide by decision or order of administrative authorities). In addition, the members of the Constitutional Court - there remained 14 members - had to be reappointed according to the newly created appointment provisions of Art. 147 B-VG. This took place through the election of the members of the National and Federal Councils on July 15 and 20, 1921. The original version of Art. 147 did not have an additional right of the Federal Government to propose , as is the case today. In contrast to the later appointments, it was customary in 1921 for active politicians, sometimes even without legal training, to be appointed as members of the Constitutional Court on the basis of party-political considerations.
The Constitutional Court made its first findings after the adoption of the B-VG on December 14, 1920, although the first findings were not made until October 11, 1921, after the new appointments were made. The Constitutional Court initially had its seat in the building of the former Reichsgericht (“Schillerhof”) on Vienna's Schillerplatz , before it had to move to the parliament building in May 1923 for reasons of economy due to the Geneva Protocols .
The Constitutional Court underwent another organizational change in 1921 when the Constitutional Court Act was passed. Until then, there had been no separate organizational and procedural law for the court, which is why the "law on the organization of the Reichsgericht, the proceedings before the same and the execution of its findings" from 1869 was used as a substitute. The Federal Act on the Organization and Procedure of the Constitutional Court of July 13, 1921 changed this situation and at the same time brought about some organizational innovations. The most important of these include the determination of the number of members of the Court of Justice (14, as was the case with the Reichsgericht, but six instead of four substitute members) and, for the first time, an incompatibility provision for the judges of the Constitutional Court. The powers of the Constitutional Court were expanded at the same time: it was now also responsible for deciding on disputes over jurisdiction between the federal government and the states.
The “depoliticization” of the Constitutional Court in 1930
The amendment to the Federal Constitutional Law of 1929 led to a profound change in the Austrian Constitutional Court. As early as after the National Council election in 1920 , a so-called “Citizens' Block Government ” had been formed under the leadership of the Christian Social Party (see Federal Government Mayr II ), which , together with the Landbund, had a majority in the National Council, which entered into the National Council election in 1927 as a unified list . This parliamentary majority now sought an amendment to the Federal Constitutional Law in order to "depoliticize" the Constitutional Court, after numerous active politicians and party-affiliated persons had previously belonged to it. The most important goal of the amendment, however, was primarily to strengthen the position of the Federal President vis-à-vis parliament. No more of: Therefore, the provisions were amended on the appointment of constitutional judges as a central element of the reform of Representatives , but the President should appoint the members of the Constitutional Court. To this end, the Federal Government, the National Council and the Federal Council each had to submit proposals, the latter two in the form of three-party proposals from which the Federal President could select a candidate.
Furthermore, the incompatibility rules of the VfGG and the number of members of the Constitutional Court have now been anchored in the Federal Constitutional Law. At the same time, as already indicated, the aim was to “de-politicize” the court by making the completion of law and political science studies a prerequisite for appointment as well as ten years of practicing a legal profession. If the members of the Constitutional Court had been elected for life until then, the amendment now stipulated that their term of office should end at the end of the year in which they reached their 70th year of life - this regulation also applies to this day. The point of the amendment, described by some authors as a “blemish” of the reform of 1929, was that, as some authors note, the “depoliticization” was more of a “re-politicization”: by Section 25 of the 1929 Constitutional Transitional Act, everyone lost to it At the time in the Constitutional Court, judges took office on February 15, 1930 and had to be reappointed according to the new appointment rules. The fact that this did not happen to all members and that, for example, Hans Kelsen lost his office as a result, makes it clear that mainly members who corresponded to the party-political line of the government were reappointed. Until then, Kelsen sat as an "expert" in the Constitutional Court and had made himself unpopular with the government as a speaker on controversial findings (e.g. Sever marriage ). He could have accepted an offer from the then mayor of Vienna, Karl Seitz , who suggested that the Social Democrats nominate him, but refused because he did not want to be nominated for party politics. President Vittorelli and Vice-President Menzel also lost their offices as members of the Constitutional Court on February 15, 1930.
Elimination of the Constitutional Court in 1933
The political development of the 1930s was characterized by an escalation and polarization between the conservative governing parties and the opposition Social Democrats. All of this finally culminated in the National Council meeting on March 4, 1933, when all three Presidents of the National Council resigned. Federal Chancellor Engelbert Dollfuss took this event as an opportunity to assume that Parliament would be “ inactive ” and the resulting inability to function. Subsequently, a meeting of the National Council called for March 15 was prevented with the help of the police, who surrounded the parliament building and denied members of parliament access.
The Federal Government of Dollfuss I subsequently issued general norms in the form of (emergency) ordinances on the basis of the War Economy Enabling Act of 1917. By May 30, 1933, the Constitutional Court had received a total of 38 applications for the examination of such ordinances; by the end of 1933, the Viennese provincial government, Seitz III, had submitted 82 such applications. The Constitutional Court finally initiated ex officio review proceedings, which led the government to fear that the Court would soon put an end to its legislative practice by means of ordinances. After the proceedings in seven of these cases had already been initiated and the federal government had been asked to counter replies, it was imperative to hurry. In a meeting of the Council of Ministers on April 28, 1933, the government discussed the next steps, taking up a suggestion made by VfGH substitute member Robert Hecht : The members of the Constitutional Court close to the government should resign as one, so that the presence required for the decision-making in the Court of Justice is no longer necessary could be achieved.
The government issued a law-amending ordinance on May 23, 1933, amending the Constitutional Court Act to facilitate the proposed course of action. Not all members had to resign, but the resignation of individual members was enough to automatically exclude other members from the negotiation. As the first member of the Constitutional Court, Adolf Wanschura resigned from office on May 18, 1933, a few days before the amendment to the Constitutional Court Act, who gave detailed reasons for his resignation in a declaration published at the same time as the resolution of the above-mentioned regulation in the Reichspost . Subsequently, especially after Robert Hecht had promised on behalf of Dollfuss that the resigning members would also be taken into account again for the VfGH to be filled in the future, six other members of the court resigned from their offices between May 20 and 28 ( in addition to Wanschura and Hecht himself, Ludwig Praxmarer , Friedrich Mathias , Mathias Bernegger , Ernst Ganzwohl and Adolf Pilz ). As a result, the Constitutional Court no longer had a quorum, which de facto meant the elimination.
With the authoritarian corporate state May constitution of 1934, the constitutional court was finally completely abolished, whereby the remaining members of the court also lost their office. At the same time, in the constitution enforced by the federal government and passed by a “rump parliament”, the Federal Court of Justice was created as the successor to both the Constitutional Court and the Administrative Court. This also included some of the former VfGH members, especially in its constitutional senate. The "connection" of Austria to the National Socialist German Reich changed the nature of the Federal Court of Justice significantly. It lost all constitutional powers and became an administrative court, which from 1940 was called the “Administrative Court in Vienna”. In 1941 it was organizationally merged with other administrative courts and subsequently acted as the Vienna External Senate of the Reich Administrative Court .
Development of the Constitutional Court in the Second Republic
The "provisional" Constitutional Court 1945/46
The liberation from National Socialism from the end of March 1945 also led to the revival of the Republic of Austria and its institutions. After the two newly founded large parties, the Socialists and the People's Party , had already reached agreement on the formation of a provisional state government on April 23, 1945, this was recognized by the Soviet occupying power on April 27, 1945. On the same day, the new provisional government under State Chancellor Karl Renner issued a proclamation on Austria's independence. In its sixth session on May 13, 1945, the Cabinet Council passed the Constitutional Transition Act , with which the Federal Constitutional Act in the version of 1929 and all other constitutional laws in their status of March 5, 1933 were reinstated. Austria was thus placed back on the constitutional basis before the authoritarian May constitution of 1934. In fact, however, it was determined in the Constitutional Transition Act that the B-VG should only come into force six months after the meeting of the elected parliament due to its impracticability at this point in time. (This period was subsequently shortened considerably.) A provisional constitution was in place until then.
This provisional constitution did not initially provide for a constitutional court. It was not until a constitutional law of October 12, 1945, in Section 48a of the Provisional Constitution, that the Constitutional Court was re-established in order to guarantee proper jurisdiction and electoral jurisdiction with regard to the upcoming National Council elections. The competences of this “provisional” constitutional court were derived from the Federal Constitutional Law 1929, which was not yet in force at the time. The first and apparently only finding of the Constitutional Court on the basis of the Provisional Constitution then also concerned an election challenge, namely the challenge to the state elections in Tyrol in 1945 . The Constitutional Court Act, also passed on October 12, 1945, again regulated the establishment and procedure of the Constitutional Court. The “provisional” Constitutional Court thus consisted of only one president, one vice-president and five other members as well as five substitute members until the B-VG came into force. The appointment of these members was also different to the B-VG: the President and Vice-President were from the Cabinet Council (State Chancellor, all State Secretaries, all Undersecretaries), one member and substitute member each from the two other highest courts (OGH and VwGH) and one member and substitute member each of to order the three main political parties (ÖVP, SPÖ and KPÖ).
On November 25, 1945, Austria's first election to the National Council since 1933 took place. The newly elected National Council met on December 19, 1945 for its constituent meeting and passed a further constitutional transitional law with which the B-VG came into force in 1929 and the constitutional transition law and the provisional constitution of the Cabinet Council were suspended were. The first constitutional court, composed according to the provisions of the B-VG 1929, came to its constituent meeting on October 3, 1946, under the chairmanship of President Ludwig Adamovich senior. together.
Developments after 1946
In the decades after the constitution of the Constitutional Court of the Second Republic on the basis of the Federal Constitutional Law, there were essentially only changes and extensions of the powers of the court. However, its position or organization were never significantly changed. A minor change with regard to the method of appointment was introduced with an amendment to the constitution in 1994: Up until then, both the National Council and the Federal Council had to submit their proposals for the appointment of members to the Federal President in the form of three proposals, from which the Federal President could freely choose one of the candidates . This practice was abolished in 1994 and brought into line with the federal government's right to propose, so that now the National Council and the Federal Council each propose individual candidates for appointment.
Further amendments to the Federal Constitutional Law and other constitutional provisions relating to the Constitutional Court mostly only affected its competences. For example, the Constitutional Court has been able to decide on the legality of international treaties since 1964, and has been able to initiate legal or regulatory review proceedings since 1975 at the request of a third of the members of the National Council or a court of second instance, and since 1991 also at the request of a third of the members of the Federal Council, as well as decisions of the then Independent Administrative Senates. In the course of the important amendment in 1975, the "individual complaint" was introduced, which enabled individuals to fight legal or ordinance provisions directly at the Constitutional Court within a narrow framework. A major innovation in the competencies of the Constitutional Court was also the "legal complaint" introduced on January 1, 2015 - legally referred to as a party application for review of norms - which enables parties to proceedings before an ordinary court to appeal against a first-instance judgment Constitutional Court to request the repeal of legislation. Since then, courts of first instance have also been able to submit applications for judicial review to the Constitutional Court.
From 1946 to summer 2012, the VfGH had its seat in the former Bohemian Court Chancellery in the 1st district of Vienna , entrance from Judenplatz , where the administrative court is also located. On August 20, 2012, the court operations, which had been relocated due to a lack of space, began in the former bank building Freyung 8 (official address, previously known as Renngasse 2), which was built until 1921 , also in the 1st district. The house has been known as the seat of the Bank Austria Art Forum since the early 1990s . With the appointment of Brigitte Bierlein as VfGH President on February 23, 2018, a woman moved to the top of this Supreme Court for the first time in the history of Austrian constitutional jurisdiction. Nearly a half years later, Brigitte Bierlein was by President der Bellen Alexander Van for Chancellor appointed a transitional government after the previous government coalition as a result of Ibiza affair had been resolved. According to B-VG , members of the Constitutional Court may not also belong to the Federal Government at the same time ( principle of incompatibility ). Prior to the swearing-in as Chancellor Brigitte Bierlein therefore left office as President of the Constitutional Court of June 2, 2019 Back.
Significant findings of the Constitutional Court
The findings of the Constitutional Court from 1919 to 1979 are archived on an Internet portal of the Austrian National Library with the name ALEX - Historical Legal and Legal Texts Online . The findings since 1980 - as well as a selection of older judicial records - can be found in the Federal Legal Information System (RIS). The Constitutional Court itself presents selected historically significant findings on its website under the title “Jurisprudence in Transition” in the context of a timeline.
In the First Republic
Among the cases to be decided by the Constitutional Court were some in which the antagonism between social democracy and the federal government, which had been conservative since 1920, was expressed:
- No “round dance” ban in Vienna
In 1921, the mayor of Vienna, Jakob Reumann , did not forbid the performance of Arthur Schnitzler's drama " Reigen ", which was described as scandalous by conservatives, against an ordinance issued by the Federal Minister of the Interior and Education, Egon Glanz , and was therefore indicted by the Federal Government Mayr II at the Constitutional Court. It turned out that the regulation issued to Reumann did not have a signature and was therefore legally to be regarded as non-existent.
- Cremation against the will of the minister
In 1923 Reumann opened a municipal crematorium , the Simmering fire hall , against the will of Minister of Social Affairs Richard Schmitz (the Roman Catholic Church opposed cremation at that time). The governor was then drawn before the Constitutional Court by the Seipel I federal government , led by a priest . He decided that Reumann had found himself in an excusable legal error, since the funeral industry had long been the exclusive national competence.
- Dispensation cannot be decided by the courts
The so-called sever marriages (also dispense marriages ) caused years of uncertainty among the people concerned. Albert Sever , 1919–1921 Social Democratic Governor of Lower Austria (at that time still including Vienna), had made it possible for divorced Catholics to remarry by dispensing . Courts were called upon to declare the dispensation ineffective in some cases. The Constitutional Court ruled that, according to the constitution, only administrative authorities, but not the courts, were empowered to make these decisions, and to the displeasure of the conservatives overturned the court rulings, so that the second marriages remained. In a later finding, which the Constitutional Court met after all posts were filled in 1930, this view was expressly revised.
In the Second Republic
- Constitutional provisions in simple laws
In the Second Republic, Austria was ruled by a grand coalition from 1945–1966, 1987–1994, 1996–2000 and 2006–2008 , which had a two-thirds majority in the National Council , which would change the constitution. If a politically desired legal provision ran the risk of being overturned by the Constitutional Court - mostly due to a violation of the fundamental equality requirement of the constitution - the grand coalition often passed provisions with constitutional status. This prevented the VfGH from examining this provision.
- Long transition periods
The Constitutional Court abolished the rule contained in the General Social Insurance Act , which came into force in 1956, that the standard retirement age for men is set at 65 years of age and for women at 60 years of age, in 1990 because of a violation of the constitutional principle of equality. The Federal Government and the National Council decided to put an end to inequality in favor of very long transition periods.
- Suspension of the runoff election for the 2016 federal presidential election
On July 1, 2016, the VfGH announced that the second ballot for the federal presidential election in Austria in 2016 would have to be repeated across Austria, thus confirming an election contestation by the delivery agent Heinz-Christian Strache of the unsuccessful candidate Norbert Hofer (FPÖ). The reason for the repeal was that the VfGH found that there had been violations of the regulations for counting postal votes in a total of 14 Austrian electoral districts. A total of around 77,000 postal votes were counted too early or by the wrong people. In addition, the provisional (partial) election results were passed on to the media too early by the electoral authorities.
For the first time in the history of the Republic of Austria, there was therefore an interregnum without a Federal President from July 8, 2016 after Heinz Fischer left office due to the expiry of his term of office . The candidate Alexander Van der Bellen , who had been victorious in the repealed runoff election, was unable to take office due to this VfGH decision, but had to face another runoff election, which he was finally able to win on December 4th. The realization of the lifting of the runoff election quickly developed into a politically and legally strongly discussed subject of public debate. Well-known lawyers have both strongly criticized the knowledge and defended it against such criticism.
- Opening marriage to same-sex couples
After a homosexual couple complained to the Constitutional Court in 2016 that the City of Vienna's magistrate had not allowed them to marry, the Constitutional Court initiated ex officio proceedings to determine whether it was unconstitutional to treat same-sex couples To refuse access to marriage as a matter of principle. In its decision of December 4, 2017, the Constitutional Court repealed the phrase "different sex" in Section 44 of the Austrian Civil Code (ABGB) and the corresponding provisions in the Registered Partnership Act (EPG) with effect from January 1, 2019. As a result, same-sex couples have been allowed to enter into civil marriage in Austria since January 1, 2019 . Justifying the Constitutional Court essentially stated that the registered partnership of marriage had been brought closer and closer together, so that the two legal institutions today largely correspond to one another in terms of both design and legal consequences, despite "isolated differences".
Members of the Constitutional Court
The Constitutional Court consists of a president, a vice-president, twelve members and six substitute members.
A member or substitute member of the Constitutional Court can only become a person who has completed a law degree and has practiced a relevant profession (e.g. judge , public prosecutor , lawyer , university professor ) for at least ten years . The appointment is made by the Federal President . This is bound to the proposals of certain other state organs, but does not have to accept them:
- The President, the Vice President, six other members and three substitute members are proposed by the Federal Government . In contrast to the members proposed by the National and Federal Council, these members may only come from the professional groups of judges, administrative officials and law professors ( para. 2 first sentence B-VG ).
- Three members and two substitute members are proposed by the National Council.
- Three members and one substitute member are proposed by the Federal Council .
In contrast to the members of the Administrative Court, the members and substitute members of the Constitutional Court are not professional judges, but rather exercise their function as a “secondary office”, but are provided with the same judicial guarantees as professional judges. In particular, this means that they can exercise their office independently and, in principle, can neither be removed nor transferred. The members receive monthly payments for performing their functions. In principle, their term of office ends at the end of the year in which they turned 70. Members of the VfGH can only be relieved of their office prematurely by a decision of the court itself if one of the reasons of VfGG is present: If an incompatibility arises afterwards due to the acceptance of a political office, if the member is absent without excuse in three consecutive negotiations of the VfGH if it has shown itself to be unworthy of the respect and trust of the office through its behavior or has grossly violated its obligation of official secrecy and if the member's physical or mental limitations make it seem impossible to fulfill the official duties.
|Christoph Grabenwarter||president||June 2, 2005
President since February 19, 2020
|Verena Madner||Vice President||Apr 24, 2020||Federal government|
|Markus Achatz||member||Jan. 9, 2013||National Council|
|Sieglinde Gahleitner||member||Dec 22, 2009||Federal Council|
|Andreas Hauer||member||March 7, 2018||National Council|
|Christoph Herbst||member||June 7, 2011||Federal Council|
|Michael Holoubek||member||Jan. 10, 2011||National Council|
|Helmut Hörtenhuber||member||June 5, 2008||Federal government|
|Claudia Kahr||member||March 22, 1999||Federal government|
|Georg Lienbacher||member||Jan. 10, 2011||Federal government|
|Michael Rami||member||Apr 11, 2018||Federal Council|
|Johannes Schnizer||member||Dec 22, 2009||Federal government|
|Ingrid Siess-Scherz||member||June 20, 2012||Federal government|
|Nikolaus Bachler||Substitute member||Feb. 4, 2009||Federal government|
|Angela Julcher||Substitute member||Oct 5, 2015||National Council|
|Barbara Leitl-Staudinger||Substitute member||Jan. 10, 2011||Federal government|
|Michael Mayrhofer||Substitute member||May 11, 2021||Federal government|
|Robert Schick||Substitute member||Dec 17, 1998||National Council|
|Werner Suppan||Substitute member||Feb. 1, 2017||Federal Council|
Working method and procedure
The procedure before the Constitutional Court is regulated in more detail in the Constitutional Court Act 1953 (VfGG) and in the rules of procedure of the Constitutional Court issued by the Constitutional Court itself on the basis of the Constitutional Court ( As a subsidiary (alternative), the Code of Civil Procedure (ZPO) applies wherever the VfGG and the rules of procedure do not provide more detailed provisions on the course of the procedure ( VfGG). The administration of justice, such as exercising authority over the officials of the Court, is the responsibility of the President.B-VG).
All submissions to the Constitutional Court must be submitted in writing and are subject to a lawyer requirement (Section 17 (2) VfGG). Individual applications submitted by corporations under public law (federal government, states, municipalities, but here exceptionally also a few others) or by members of the National Council, Federal Council or state parliaments are exempt from this legal requirement. In principle, all applications to the Constitutional Court are also subject to an entry fee (240 euros), from which there are various exceptions. According to § 14a Para. 4 VfGG, lawyers are obliged to submit written submissions to the VfGH electronically - usually via electronic legal communication - all other persons are free to do so. Since 2013, the entire internal and external file management of the VfGH has been converted to the electronic file , which among other things also enables the delivery of information electronically.
After submitting the so-called “procedural brief”, the President of the Constitutional Court assigns the case to one of the permanent speakers. These are elected by the plenum of the VfGH from its members and deal permanently with the handling of the cases that have arrived. The speakers are so-called "constitutional employees", that is, lawyers who support them in their work. The officer responsible in each case then conducts a preliminary procedure in which he carries out all preliminary inquiries, such as checking the admissibility, inquiries about the facts, any witness interviews or requesting statements from the parties to the proceedings. At the end of this preliminary procedure, the permanent consultant prepares a draft, which can be designed either for rejection by means of a resolution, for rejection of the complaint handling or as a content-related draft for completion. The speaker then forwards this draft to the remaining members of the Constitutional Court for decision-making.
The resolution by the members of the Constitutional Court takes place in takes place four times a year, with three- to four-week sessions . These are intensive meeting weeks in which the cases that have been prepared for settlement are discussed. In contrast to the German Federal Constitutional Court , which has set up two senates as arbors, the Constitutional Court usually decides in the plenum of all 14 members. The presence of the chairman (i.e. the president or vice-president) and at least eight voting members are required for a quorum. In certain cases, in which the legal question has already been sufficiently clarified by the previous case law of the VfGH, the presence of four voting members (so-called “small casts”; Section 7 (2) (1) VfGG) is sufficient. The decisions of the Constitutional Court are generally passed with an absolute majority, with the chairman not voting. He only casts his vote in the event of a tie and thus decides in such controversial cases (so-called right to vote ). In contrast to substantive decisions, however, rejections of complaints must exceptionally be decided unanimously.
Substantive decisions of the Constitutional Court are generally referred to as "knowledge" (the introductory phrase of each decision is therefore also "In the name of the Republic! The Constitutional Court has rightly recognized [...]:") and made out in writing. From the respective knowledge it is not clear which members of the Constitutional Court voted for and which against the decision. The introduction of the possibility of dissenting opinions , as known by the German Federal Constitutional Court or the US Supreme Court, was discussed again and again (for example at a parliamentary inquiry on this topic in 1998 and at the Austria Convention in 2003– 2005), but so far largely rejected and not taken up by the legislature until 2021. As part of the government bill for a Freedom of Information Act presented by the Federal Government Kurz II in February 2021, the option is to be introduced for the first time that constitutional judges may express differing opinions in writing when the decision is made. The Presidium of the Constitutional Court itself rejected this legislative project of introducing separate votes in a statement on the ministerial draft of April 2021.
The competences assigned to the Constitutional Court are already listed in the Federal Constitutional Act , and thus secured by constitutional law. Basically, nine different fields of competence are distinguished, four of which are of particular importance, which is why these are discussed in more detail below in their own subsections and the other five are summarized under Other Competencies .
- the legal review ( B-VG), in which the compatibility of federal laws with the federal constitution and the compatibility of state laws with federal and state constitutions is examined,
- the ordinance review ( B-VG), during which the compatibility of ordinances with laws and the constitution is examined,
- the state treaty examination ( B-VG), during which state treaties are examined for their constitutionality,
- the republication test ( republished legal text corresponds to the original legal text. B-VG), which is a special case and checks whether the
In norm control, a distinction is made between concrete norm control and abstract norm control. In the area of abstract control of norms - depending on the type of legal provision - federal and state governments or members of the National Council , the Federal Council or the state parliaments are entitled to apply. In particular, a procedure for specific standards control is initiated:
- ex officio if proceedings are pending before the Constitutional Court itself in which the legal provision in question is to be applied;
- at the request of a court which has to apply the legal provision in question but which considers it to be unlawful or unconstitutional ( court application );
- at the request of a person who, as a party to proceedings, files the application before an ordinary court after the end of the proceedings in the first instance ( party application );
- at the request of a person for whom the legal provision became directly effective without a court decision and without a notice ( individual application ).
In the area of administration, a party application is not open, since a complaint to the Constitutional Court against the decisions of the administrative courts themselves is open.
The Constitutional Court examines the compatibility of the respective legal provisions on the basis of the higher-level legal provisions (e.g. a federal law with the federal constitution). If he finds that a law is unconstitutional, then he repeals the law (or the parts concerned). It happens again and again that the Constitutional Court only repeals individual parts of sentences or words. If the Constitutional Court does not re-enact previous legal provisions (or cannot re-enact them), a loophole may arise because the Constitutional Court is not entitled to insert new provisions into the legal text or to create replacement regulations. This is the task of the legislature. So that the necessary time is available for a new regulation by the legislature, the Constitutional Court can determine the point in time at which the repeal comes into force. Up to this point in time, no one may invoke the (already established) unconstitutionality of the repealed, but still applicable, law.
According to NRWO ) are to be interpreted strictly according to their wording and the electoral authorities are strictly bound by these formal regulations . In this way, a violation of electoral law principles can be asserted. On the other hand, the concept of illegality also includes the legal bases applied by the (electoral) authorities. For example, the 2006 National Council election was challenged by the KPÖ - unsuccessfully - with the assertion that the four percent hurdle (§§ 100, 107 NRWO) was unconstitutional.B-VG in conjunction with Sections 67 to 71a VfGG, the VfGH decides whether to contest certain elections because of their alleged illegality. According to the wording, the VfGH has to allow an election challenge if the alleged illegality of an election procedure has been proven and this had an impact on the election result. Challenging turn must already on the allegation of illegality set of choice. The term illegality includes, on the one hand, illegal actions and decisions by the electoral authority (e.g. the lack of a voting booth), whereby the provisions of the electoral regulations (e.g. the
The following elections can be contested - mostly only by the candidates themselves (Art 141 para 1 B-VG):
- Election of the Federal President,
- Elections to the general representative bodies (National Council, Federal Council, State Parliaments, municipal councils, district representatives in Vienna),
- Elections to the European Parliament,
- Elections to the statutory bodies (representative bodies) of the statutory professional bodies,
- Elections to the state government,
- Elections to the organs of a municipality entrusted with the execution (mayor, municipality council, district councilor in Vienna).
Special administrative jurisdiction
In exercising special administrative jurisdiction ( findings and decisions of the administrative courts of first instance . For this purpose, the complainant must claim that the knowledge or the decision violated a constitutionally guaranteed right. Alternatively, he can also claim that his rights have been violated by the contested knowledge or the decision due to the application of either an unlawful ordinance , an unlawful announcement about the republication of a law (or an international treaty ), an unconstitutional law or an unlawful international treaty.B-VG), the Constitutional Court recognizes complaints against
A revision can be filed against a finding or a decision both before the Administrative Court and a complaint can be made before the Constitutional Court. If a party initially only lodges a complaint with the Constitutional Court, the Constitutional Court, if it does not admit the complaint, must submit the complaint to the Administrative Court for further examination in accordance with Art. 144 (3) B-VG . In this case, the Higher Administrative Court decides as if it were an appeal.
Before the 2012 amendment to administrative jurisdiction passed in 2012 came into force on January 1, 2014 , the Constitutional Court exercised special administrative jurisdiction directly against the administrative authorities: a complaint before the Constitutional Court could therefore be made directly against the decision issued in the last instance. The solution of the special administrative jurisdiction chosen as part of the 2012 amendment to the administrative jurisdiction had already provided for B-VG introduced in 2008 when the Asylum Court was created: Here, too, the Constitutional Court decided on complaints against decisions (findings and resolutions) of the Asylum Court.
Competence jurisdiction and competence determinations
- Decision on conflicts of competency in the execution between administration and jurisdiction, between the various branches of jurisdiction and between the federal government and the states ( para. 1 B-VG)
- Decision as to whether an act of legislation or enforcement falls under the jurisdiction of the federal or state governments ( para. 2 B-VG)
- Resolving disagreements on the interpretation of the statutory provisions that regulate the jurisdiction of the Court of Auditors or an institution of a country similar to that of the Court of Auditors ( and Z 1 B-VG)
- disagreements on the interpretation of the statutory provisions that regulate the competence of the Board or a State ( and B-VG)
- Causal jurisdiction ( ordinary courts (e.g. official liability or civil law claims) or an administrative authority are not competent to do so . B-VG): Within the scope of this competence, the Constitutional Court decides on property claims against regional authorities if the
- Disputes between member states ( agreement pursuant to Art. 15a B-VG between the federal government and individual federal states or between the states and whether the resulting obligations have been met. This does not apply if it is a matter of property claims, as the causal jurisdiction is then decisive. B-VG): On application, the Constitutional Court determines whether there is an
- State jurisdiction ( and B-VG): Within the framework of this competence, the Constitutional Court decides on charges against the highest federal or state bodies for violating the federal constitution. The sanctions range from admonition to impeachment and the temporary deprivation of political rights. If the violation of the Federal Constitution also results in a criminal offense, then the Constitutional Court must also decide on the criminal conviction.
- International law jurisdiction ( B-VG): In principle, the Constitutional Court would be empowered within the scope of this competence to judge violations of international law. However, this competence cannot be exercised by the Constitutional Court in the absence of a corresponding implementation law.
- Decisions in connection with the establishment and activity of parliamentary investigative committees ( B-VG): Since the restructuring of parliamentary investigative committees in Austria in 2014, the Constitutional Court has been called upon to resolve disputes among the parties in connection with the establishment or activity such committees of inquiry to decide. These include, for example, the admissibility of appointments and requests for information or complaints from people who claim that the investigative committee has violated their personal rights.
- To the Constitutional Court itself and to the Austrian constitutional jurisdiction
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