Guest Editorial: 100 Years of the Austrian Federal Constitution and Constitutional Review: The Austrian Legacy to Constitutional Courts in Europe

Anna Gamper

University of Innsbruck, Austria

One hundred years ago, on 1 October 1920, the constituent National Assembly of Austria passed the Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz, B-VG) which, with some important exceptions, entered into force on 10 November 1920. This was almost two years after the new republic had been founded. Although many initially expected the B-VG to be a transitional constitution, it has continually been in force for 100 years (being illegally set aside in the periods of Austro-fascism and national socialism between 1934 and 1945). Thus, it belongs to the older tradition of western style constitutions on the European continent even though it features some important characteristics that are unique: firstly, the B-VG has already been amended 128 times after its formal re-publication in 1930 which is more than most constitutions can claim; secondly, the B-VG itself is only one of approximately 500 constitutional fragments of which the federal constitution as a whole consists. The B-VG certainly constitutes its essential corpus, but there are additional constitutional laws, single constitutional provisions in ordinary laws, international treaties received into domestic constitutional law (such as the ECHR), laws enacted prior to 1920 (dating as far back as 1862) and even intergovernmental agreements between the federation and the nine Länder that have a constitutional status.

The combination of its over-flexibility and fragmentation has earned the federal constitution the epithet “ruin” already in the 1960s. But the notorious “ruin” has turned out to be much more stable and successful than considered possible. This is, in part, due to the creation of an Austrian Constitutional Court which has become the archetype of specialized constitutional courts and the most important Austrian contribution to global constitutionalism. This claim, however, does need some further elaboration: judicial review had existed before the Austrian Constitution particularly in the form of the older American model which, however, lacked both a specialized court and the power to formally remove laws erga omnes. Furthermore, the Austrian Constitutional Court had already forerunners in the past, namely in the Reichsgericht of 1867 and in the interim Constitutional Court of 1919 (a transitional predecessor of the Constitutional Court of 1920). However, neither of these courts could claim full powers of judicial review, nor could the short-lived Czechoslovakian Constitutional Court, established earlier in 1920. The Austrian Constitutional Court of 1920, however, was vested with full powers of judicial review, both in an abstract and concrete manner, including the competence to hear individual complaints in cases of fundamental rights violations, and the right to repeal unconstitutional laws or other legal acts with erga omnes effect.

The legacy of the Austrian model can be seen today. Almost all continental European constitutions and many non-European constitutions have established a specialized constitutional court. All these courts have their own individual design, both in terms of organisation and functions, and none of them resembles the Austrian Constitutional Court in full detail. Moreover, the Austrian Constitutional Court itself has undergone some change over 100 years and now possesses even more powers than in 1920 – among them, of late, the power to scrutinize judgments delivered by administrative courts, to examine laws or regulations applied by ordinary courts of first instance at the appeal of a party and to examine certain irregularities in the context of parliamentary investigative committees.

 The historical Austrian Constitutional Court left a legacy that, on the occasion of the Austrian centennial constitutional jubilee, shall be examined both theoretically and from the perspective of comparative constitutional law. Originally, an international conference on that topic, co-organized by the Scuola Superiore Sant’Anna (Italy) and the University of Innsbruck (Austria), should have been convened under the auspices of the IACL-AIDC on 3 September 2020 in Pisa, Italy. Unfortunately, this conference, as so many others, fell victim to the COVID-19 pandemic.

Nevertheless, all full papers envisaged for that conference will be published by the Austrian journal Zeitschrift für öffentliches Recht (ZÖR) as a special issue in spring 2021. The journal’s editors András Jakab and Sebastian Schmid (both University of Salzburg, Austria) kindly agreed to ask some of the authors to write a short blog post for a virtual mini-symposium on the Austrian constitutional jubilee. These posts do not pre-publish the full papers, of course, but introduce some of the contents expected for that special issue to an international audience.

Prof. Christoph Grabenwarter (President of the Constitutional Court of Austria) introduces the Symposium.

This blog-symposium is today inaugurated by the President of the Austrian Constitutional Court, Prof. Christoph Grabenwarter (Vienna University of Economics and Business, Austria), who delivers a video address on the Austrian constitutional centenary and its impact on constitutional review. In the upcoming days and weeks, further blog posts will deal with the jubilee and its implications for constitutional review: Prof. Harald Eberhard (Vienna University of Economics and Business, Austria) will reflect on the Austrian Constitutional Court’s case law 100 years after its establishment by the B-VG: how has it evolved over time and how has it shaped the Constitutional Court’s position among the branches of power? A perspective on the Austrian Constitutional Court from abroad will be given by Prof. Francesco Palermo (University of Verona/European Academy of Bolzano, Italy) who will examine the development of Austrian federalism with a view also on the Constitutional Court’s relevant case law.

Two blog posts will deal with specialized constitutional courts from a theoretical and comparative perspective: Prof. Francesco Saitto (Sapienza University of Rome, Italy) will explore the growing political relevance of constitutional courts in Europe and the importance of the procedural rules they apply in this context. Prof. Anna Gamper (University of Innsbruck, Austria) will inquire into powers of constitutional courts discussing the famous phrase that courts are the “least dangerous to the political rights of the Constitution”: how “dangerous” - and in what sense - are constitutional courts vis-à-vis the other branches and other courts?

Four posts will illustrate the Austrian Constitutional Court’s legacy to other European countries and their systems of constitutional review: Prof. Peter Bußjäger (University of Innsbruck, Austria/State Court of Liechtenstein, Liechtenstein) will analyse the Austrian influence on Liechtenstein’s State Court that was established in 1921. Prof. Giacomo Delledonne (Scuola Superiore Sant’Anna, Italy) will reflect on Kelsenian influences on the Italian Constitutional Court as well as the German Federal Constitutional Court which is one of the best-known and most impactful specialized constitutional courts in the world. Prof. Attila Vincze (Andrássy University Budapest, Hungary/Charles University Prague, Czech Republic), Prof. András Jakab (University of Salzburg, Austria) and Prof. Gábor Schweitzer (Centre for Social Sciences Budapest/University of Public Service Budapest, Hungary) will discuss the impact of Austrian constitutional thinking on Hungarian constitutional law and the Hungarian Constitutional Court. Prof. Xabier Arzoz Santisteban (UNED - National Distance Education University, Spain) will examine whether the B-VG and its model of constitutional review influenced both the Spanish Constitution of 1931 and that of 1978.

I sincerely thank the contributors for their participation and the editors of IACL-AIDC for hosting us. My thanks also go to Mag. Florian Klebelsberg for his editorial assistance. It is a wonderful way to celebrate a constitutional jubilee in the midst of a pandemic which the Austrian constitution will hopefully endure as well as previous crises.

Anna Gamper is a Professor of Public Law at the University of Innsbruck, Austria.

Suggested citation: Anna Gamper, ‘Guest Editorial: 100 Years of the Austrian Federal Constitution and Constitutional Review: The Austrian Legacy to Constitutional Courts in Europe’ IACL-AIDC Blog (1 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/1/guest-editorial-100-years-of-the-austrian-federal-constitution-and-constitutional-review-the-austrian-legacy-to-constitutional-courts-in-europe