Imitation and Adaptation: the Italian Constitutional Court, the German Federal Constitutional Court and the Austrian Model

Giacomo Delledonne

Scuola Superiore Sant’Anna

Many see the Austrian Federal Constitutional Law of 1 October 1920 (Bundes-Verfassungsgesetz, B-VG) as the starting point in the emergence of what Victor Ferreres Comella has labelled the ‘European model’ of constitutional adjudication. The Constitution of the Czechoslovak Republic, which also established a centralised Constitutional Court, slightly predates the B-VG, yet, as Anna Gamper has noted, the Czechoslovakian Constitutional Court did not have full review powers. Thus, the B-VG played a seminal role in developing the model that establishes a specialised constitutional court as the sole holder of the power to set aside laws as unconstitutional. For this reason, the European model is also referred to as the ‘Austrian model’.

In this blog post, I consider the increasing success of the Austrian-European model of constitutional review in continental Europe after the end of the Second World War (WWII). More specifically, I focus on the first two constitutional courts established in the aftermath of WWII and the downfall of authoritarian regimes: the Constitutional Court of Italy (Corte costituzionale) and the Federal Constitutional Court (Bundesverfassungsgericht) of the Federal Republic of Germany. In doing so, I will make some points on the influence of the Austrian precedent on the drafters of the Constitution of the Italian Republic and the German Basic Law. My goal is to show that the spread of Austrian-like constitutional courts throughout Europe is based on a complex reception of this model, which arose from a particular combination of imitation, adaptation and change.

Austrian Echoes after the End of WWII

At the time when the German Basic Law and the Constitution of the Italian Republic were drafted, judicial review of legislation was not standard practice in continental Europe. In the German-speaking world, the institutions of Staatsgerichtsbarkeit had long adjudicated conflicts between the constitutive units of the Empire. Yet, the constitutional review of legislation had been regarded as highly controversial during the Weimar years. While the tradition of judicial review in the United States provided an important reference, it seemed difficult to adapt that model to continental legal orders. In both countries, centralised constitutional adjudication did eventually prevail. Which raises the question: To what extent did the Austrian example influence the drafters of the Constitution of the Italian Republic and the German Basic Law?

As I have anticipated, the history of the expansion of the Austrian model of constitutional adjudication throughout continental Europe is rather peculiar. Both the Bundesverfassungsgericht and the Corte costituzionale share a variety of similarities and differences with their Austrian counterpart.

In Italy, Hans Kelsen’s work was never explicitly mentioned in the Constituent Assembly. However, there is evidence that some members of the Assembly were familiar, at least indirectly, with his works on constitutional adjudication, which drew on his role in the drafting of the B-VG and his subsequent activity as judge of the Austrian Constitutional Court. Even more significantly, Giovanni Leone in his report on ‘The Judiciary and the Constitutional Court’ made deliberate reference, also in critical terms, to the constitutional regulation of the Austrian Constitutional Court. With due regard to the differences between them, the discussion that preceded the drafting of the Basic Law is no less interesting than the Italian constitution-making process a couple of years before. As Werner Heun once remarked, the minutes of the Constitutional Convention that met at Herrenchiemsee ahead of the summoning of the Parliamentary Council contain no explicit mention of the Austrian model of constitutional adjudication. However, one of the participants in the meetings of the Convention, Bavarian public law scholar Hans Nawiasky, had been close to Kelsen. In more general terms, several members of the Constitutional Convention and later of the Parliamentary Council must have been familiar with Kelsen’s essay on the nature and development of constitutional adjudication, presented at the annual conference of German public law scholars in 1928.

Similarities and Differences

As regards composition, the German Bundesverfassungsgericht resembles, to some extent, the Austrian model, as all its members are elected by the federal Parliament, the Bundestag, or by the Bundesrat. Drafters of the B-VG originally envisioned the Constitutional Court as a ‘negative lawmaker’; in contrast, in Germany, the emphasis was from the beginning on law and politics as intertwined – a concept that is at the heart of the constitutional design of the Bundesverfassungsgericht. The idea of law and politics as entwined, as more than a binary choice between politicised or depoliticised courts, also features in the regulation of the composition of the Corte costituzionale. Parliament, the President of the Republic and the top ordinary and administrative courts all have a say in the appointment of this Court’s fifteen judges. The underlying idea is that the members of the Court should combine a strong legal background with some awareness of the political stakes that are involved in constitutional adjudication.

The most important difference between the Bundesverfassungsgericht and the Austrian Constitutional Court is that the former has a broader set of competencies and tasks. This substantial role has contributed significantly to shaping its status within the constitutional order of Germany.

The first of these powers is the authority of the German Court to declare a political party unconstitutional or to exclude it from state financing under Article 21 of the Basic Law. The reason why the constitution drafters involved the Karlsruhe-based Court in the highly political issue of party bans is the ‘militant’ nature of the democratic and social federal state regulated by the Basic Law.

No less important is the role of the Urteilsverfassungsbeschwerden (constitutional complaints). Under Art. 93(1)(4a) of the Basic Law, the Bundesverfassungsgericht rules on constitutional complaints – in terms of this article complainants can allege their fundamental constitutional rights have been infringed by a public authority, including by courts. Therefore, the Bundesverfassungsgericht may rule not only on the constitutionality of laws but also on the way courts, including the federal appellate courts as defined in Art. 95 of the Basic Law (the Federal Court of Justice, the Federal Administrative Court, and so on) interpret these laws. As argued by Rainer Wahl, this point plays a crucial role in defining the role of the Bundesverfassungsgericht vis-à-vis the federal top courts. A brief bit of history illustrates how significant it is that the Bundesverfassungsgericht is recognised as having a distinct status from the other federal top courts. Shortly after the establishment of the Bundesverfassungsgericht, Justice Gerhard Leibholz wrote the Status-Denkschrift, a report, in which he claimed that the Court in which he sat was (and should be) treated like a fully-fledged constitutional organ, comparable to the federal Parliament and Government. In the early 1950s, this was by no means self-evident, as the Basic Law quite concisely regulates the Bundesverfassungsgericht in a section labelled ‘The Judiciary’. The eventual recognition of this status came at the price of a hard-fought conflict with the Minister of Justice. But the recognition, together with the gradual development of Urteilsverfassungsbeschwerden as a tool for reviewing the decisions of other top courts, has clearly differentiated the Bundesverfassungsgericht from other organs of the German judiciary. The power to rule on constitutional complaints of this sort is another significant difference between the Bundesverfassungsgericht and the Austrian model. The Austrian Constitutional Court is not empowered to review, based on alleged violations of fundamental rights, the judgments of the two other top courts of Austria, namely the Supreme Court of Justice and the Administrative Court.

The Italian Constitution also entrusts the Corte costituzionale with additional tasks, over and above just ruling on the constitutionality of laws and adjudicating conflicts. Most notably, constitutional law 1/1953 provides that the Court may rule on the admissibility of requests for referendums submitted by at least a half-million voters or by five regional legislatures. The status of this Court within the Italian constitutional order is another critical issue. The Constitution outlines the powers of the Corte costituzionale not in Title IV of the Second Part – the section regulating the powers of ‘The Judiciary’ – but, rather, in Title VI (the section dealing with ‘Constitutional Safeguards’). In its early years, the Court itself held that its ‘unprecedented tasks’ set it apart from the judiciary proper.

Concluding Remarks

The German Bundesverfassungsgericht and, to a lesser extent, the Corte costituzionale have contributed to spreading the European model of constitutional adjudication, which had its start in Austria in 1920. As Roman Herzog once remarked, the subsequent ‘waves’ of transition to democracy in Southern Europe and Central and Eastern Europe have given rise to several ‘children’ and ‘grandchildren’ of the Court in Karlsruhe. During this process, specific aspects of the original model have changed or have combined with others. However, references to the Austrian Constitutional Court, even indirect or unconscious, have kept surfacing in constitution-making processes. This testifies to the strength of a model that, in Anna Gamper’s words, should instead be described as a ‘constitutional idea, a loosely outlined model of constitutional adjudication that has somehow turned into a narrative of liberal constitutional orders’.

Giacomo Delledonne is Postdoctoral Researcher in Comparative Public Law, Scuola Superiore Sant’Anna, Pisa, Italy.

Suggested citation: Giacomo Delledonne, ‘Imitation and Adaptation: the Italian Constitutional Court, the German Federal Constitutional Court and the Austrian Model’ IACL-AIDC Blog (22 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/22/imitation-and-adaptation-the-italian-constitutional-court-the-german-federal-constitutional-court-and-the-austrian-model