Symposium: On the Occasion of the 100th Birthday of the Austrian Constitutional Court: Reflections on the Creative Power of Constitutional Case Law in Austria

Harald Eberhard

Vienna University of Economics and Business (WU)

The 100th birthday of the Austrian Constitutional Court presents the opportunity to reflect on the creative force of its jurisdiction. Many features of the Court were already part of its predecessor, the “Reichsgericht”, established under the Constitution of December 1867, but have evolved and grown ever since. The main innovation of the Austrian Constitutional Court has been no less than completing the system of legal protection. The Court’s judicial scrutiny extends not only to all levels of state administration but also to the legislator. Regardless of the different rule of law concepts, this level of centralized judicial review, attributed to the Austrian Federal Constitution of 1920, established the “Austrian model”. The main characteristics of the “Austrian model” are a centralized system of judicial review and the Constitutional Court’s authority to assess legal norms regarding their conformity with the Constitution ex officio. One cannot underestimate the influence this model had not only on the Austrian legal system but also on many others throughout the world. Therefore, and with good reason, it often is called the “Austrian system of judicial review”.

A Balance of Powers

The Constitutional Court´s power to review and repeal statutory laws has placed the Court and the legislator in dialogue. At times that dialogue has not been without tension but generally it works rather smoothly. The legislator creates parliamentary acts knowing that the Court might subject its decisions, even those supported by a large majority, to scrutiny. To protect the integrity of the Parliament, the Austrian model establishes the Court as a “negative legislator” but prevents it from becoming a “positive legislator”. To limit the extent of its interference, the Court may set a time limit of up to eighteen months within which the law can be invalidated. This system upholds the principle of the separation of powers. While the Court cannot prevent a new law from being enacted to replace the invalidated one, it may exercise its review and invalidate the new law a second time.

We owe the maintenance of the delicate balance between the first and third branches of government to the sense of proportion with which the Constitutional Court exercises its competence. In the first decades after 1920, the Court’s case law emphasized the value of judicial self-restraint. The emphasis on judicial self-restraint was especially visible with respect to the proportionality assessment of fundamental rights infringements. The Court emphasized the wide range of discretion left to the legislator to define sufficient reasons and the public interest in question  when the legislator restricted rights. Without an established fundamental rights doctrine, the Court often reverted to terse and unclear remarks thus hindering an effective application of those rights by the lower courts. A decision delivered in 1928 concerning tenancy law serves as an example for this phenomenon. While the Court did not deny the need of a law to pursue public interest and acknowledged the uncertainty of such terms, it confirmed that the definition of what constitutes public interest lies only within the power of the legislator. The Court concluded with the now famous remark that “the main task of the legislative bodies is to form an opinion on the value of the various conflicting interests; they must favour the superior interests or mediate conflicting ones. The Court, however, must firmly reject being obliged to form an opinion in such matters.”

With increasing differentiation regarding the proportionality of fundamental rights infringement and the development of legal reservations, judicial self-restraint has decreased. From the 1950s onwards and, particularly influenced by the accession of Austria to the ECHR in 1958, the Constitutional Court broadened its scope. A decision of 1959 on the right to property serves as an example. The Court ruled that any expropriation of property had to be based on a public interest and that the legislator’s determination of this question is subject to judicial review. Subsequently, the Court also assessed property restrictions under similar conditions.

Of special relevance is the case law regarding the freedom to practice gainful activity which – according to an old constitutional provision of 1867 – is subject to “the conditions of the law”. The relevant rulings reflect a constitutional jurisdiction reacting to the idea of an unrestricted legislator. The rulings hold, instead, that the legislator must be bound by the principle of proportionality.   According to the now common formula, restrictions on freedom of employment must be necessary to fulfil a public interest, suitable for achieving the goal, and factually justified. With the adoption of this formula, the assessment of fundamental rights infringements allows for the differentiated control of the legislator and grants the Constitutional Court a large margin of discretion.

Judicial Activism

Another relevant aspect with regard to judicial self-restraint concerns the general equality clause (Art 7 B-VG, Art 2 StGG 1867). Today, this clause plays a dominant role in the Court’s case law and is the most effective constitutional barrier to legislation. The legislator is obliged to treat equal issues in an equal manner (and vice versa unequal issues unequally) and is prohibited from differentiating between legal subjects unreasonably. This allows the Court to compare different legal regulations. In addition, the Court further developed the equal protection clause by developing a general “reasonability” requirement (Sachlichkeitsgebot). The Court can disregard the need to conduct a comparison when determining whether the equal protection clause has been violated. This case law illustrates elements of judicial activism by the Constitutional Court. By applying the “reasonability requirement”, the Court may exercise considerable political pressure. Still, the Court stresses the importance of legislative discretion in defining sufficient reasons and considers itself not competent to decide whether a law is appropriate or if the effects of that law are always satisfactory.

The development of the “reasonability requirement” has led to the invalidation of a multitude of provisions. In a way, it is used as a general clause, since it applies in cases that do not fall under the protective scope of other fundamental rights. It thus shapes the equal protection clause as a fundamental right, in a way that is strongly characteristic of judicial activism. As the saying goes, “the scope of the equal protection clause depends on what the Constitutional Court makes of it”.

Another field in which one can see the creative power of the Constitutional Court’s jurisdiction comprises decisions concerning the constitutional principle of the rule of law or “Rechtsstaat” principle (Rechtsstaatsprinzip). Today it is not contested that together with the “democratic”, the “republican”, the “federal” as well as the “liberal” principle, the Rechtsstaat principle is one of the basic principles underlying the Federal Constitution. However, the Federal Constitution does not explicitly mention the Rechtsstaat principle at all. It is only due to the case law of the Constitutional Court that this principle has been firmly established in the legal discourse and has made quite a career for itself. Major textbooks now provide a multitude of cases, which are concerned with various components of this fundamental principle, but in a majority of cases it cannot be traced back to specific provisions of the Federal Constitution. At times, it is even used as a yardstick to assess the constitutionality of statutes.

The development of the Rechtsstaat principle shows the influence the Court’s jurisdiction has had on the Austrian Constitution. In a state based on the Rechtsstaat principle, all acts of the state must be rooted in laws and in the constitution; furthermore, the state must guarantee a system of legal protection to ensure conformity with the provisions of a higher level. The relevant case law concerns a vast array of topics, be it a minimum level of efficiency of legal protection, such as interim protective measures, or the requirements for the accessibility and comprehensibility of laws. To this extent the Rechtsstaat principle nowadays lies at the heart of the Austrian Constitution.

Conclusion

The creative power of constitutional case law in Austria is clearly apparent. While judicial self-restraint was the guiding principle at the beginning of the Constitutional Court’s “career”, the Court of today is also much more involved in highly relevant political issues. This is both attributed to the rising Europeanisation of the legal order as such and the further development of fundamental rights doctrine. However, the Court decides with a remarkable sense of proportion that, at the end of the day, maintains its authority and strikes a balance between the first and third branches of government.

Harald Eberhard is Professor for Public Law at the Institute for Austrian and European Public Law at the Vienna University of Economics and Business (WU).

Suggested citation: Harald Eberhard, ‘On the Occasion of the 100th Birthday of the Austrian Constitutional Court: Reflections on the Creative Power of Constitutional Case Law in Austria’ IACL-AIDC Blog (6 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/6/reflections-on-the-creative-power-of-constitutional-case-law-in-austria