The position of constitutional courts and their influence on the legal order of
the state
International Conference on the occasion of the 20 th anniversary of the Constitutional Court
of the Slovak Republic in Kosice on 9 April 2013
The Austrian Constitutional Court’s Influence on the Legal Order
Dr. Brigitte Bierlein
Vice President of the Austrian Constitutional Court
1.
The position of Constitutional Courts within the structure of state bodies and their
influence on the legal order of the state does not only depend on their powers and on the
way in which they exercise them, but also on their standard of review. This standard
determines their review’s control density.1
2.
Standard of review for the legal control exercised by the Constitutional Court is the
Constitution. Constitutional jurisdiction is the application of constitutional law which determines the conditions for the creation of and certain limits for simple law. Therefore, the
Constitutional Court always decides legal questions, although these legal questions often are
very closely connected with political aspects of constitutional life. The reason for the political
dimension of constitutional justice is that the Constitutional Court controls and disciplines
political processes. Considering the effects of its case-law, the activities of a Constitutional
Court have a political dimension which by far outreaches the decision in a single case. First
and foremost, this applies to norm review because in this case the Constitutional Court acts
as “negative legislator” and is as such exercising considerable influence on the embodiment
of solutions to essential socio-political questions. Apart from that the Constitutional Court
also influences politics when deciding on challenges of election or on conflicts of jurisdiction.
Any form of constitutional justice has political implications.2
1
Korinek, Die Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen, Veröffentlichungen der Vereinigung
deutscher Staatsrechtslehrer, 1981, Vol. 39, 30.
2
Berka, Verfassungsrecht, 4th Ed., 2010, 321f.
2
The fact that the Constitutional Court’s standard of review is constitutional law means at the
same time that this standard can be amended by Parliament with a two thirds majority. By
doing so the democratically legitimised legislator has the possibility to implement political
decisions favoured by a large majority against the case-law of the Constitutional Court, by
re-enacting a provision repealed by the Constitutional Court in the rank of the Constitution.3
3.
Only if the basic principles of the constitutional order (i.e. democratic, republican,
federal, separation of powers and rule of law principles) are affected the Constitutional
Court is qualified to review also a constitutional provision: An amendment to one of these
basic principles by a constitutional law is considered a total revision of the Constitution
which requires a two thirds majority in Parliament and its subsequent approval by a popular
referendum.4 In the absence of a referendum the Constitutional Court would measure the
constitutional provision in question against the basic principles and repeal it when indicated.
From 1986 to 1999 the two major political parties formed a coalition, disposing of a two
thirds majority in Parliament. They repeatedly used their majority in order to avoid the
consequences of Constitutional Court judgements and to re-establish the status quo by reenacting the repealed provisions again in the rank of formal constitutional law.5 Sometimes
also statutes containing unconstitutional provisions have intentionally been enacted in the
rank of the constitution in order to immunise them a priori against constitutional review. As
mentioned, in principal, the legislator is entitled to act in this way. However, if parliament
systematically overruled Constitutional Court judgments it would tend to paralyse
constitutional justice. Therefore, the Constitutional Court held that several such legislative
measures in sum might entail a “gradual total revision” of the constitution, even if each
individual measure – regarded upon alone – would not yet exceed this limit.6
In 2001 the Constitutional Court has repealed a constitutional provision for the first and so
far only time. This provision would have punctually suspended the Federal Constitution and
the Constitutional Court’s power to norm review.7 The Court argued that – as part of the rule
of law principle – constitutional justice belongs to the basic constitutional order and the
abolishment of the Constitutional Court or the erosion of its powers has to be qualified as a
total revision of the constitution. In this case the basic principles of the Constitution formed
the Constitutional Court’s standard of review.
3
Berka, Verfassungsrecht, 321f.
Article 44 para. 3 B-VG.
5
E.g. VfSlg 9.950, 10.394 – reaction of the constitutional legislator: BGBl. 106/1986 – reaction of the
Constitutional Court: VfSlg. 11.829.
6
VfSlg. 11.829.
7
VfSlg. 16.327.
4
3
4.
Because of the power to review the constitutionality of statutes there is a permanent
field of conflict between the Constitutional Court and Parliament. In a democratic state, it is
primarily the task of the legislator to decide – sometimes eminently important – sociopolitical issues by simple majority. In norm review proceedings the Constitutional Court must
first of all respect the political margin of appreciation of the legislator. On the other hand, it
is the Constitutional Court’s task to guarantee the primacy and the observance of the
Constitution by repealing statutes violating it.8 The position a Constitutional Court assumes
in this field of conflict with the legislator and the political forces behind it may be best
characterised by the terms “judicial self-restraint” and “judicial activism”.9
Until the late seventies of the past century, the Constitutional Court was known for its
extremely formalistic interpretation of the Constitution and of fundamental rights. The
formalistic interpretation with regard to fundamental rights in the older case-law of the
Court had granted the legislature a wide margin of appreciation in the pursuit of its political
goals, forbidding only the total abolition or an excessive – meaning unjustifiable – legislative
interference with the essential minimum of a fundamental right.10 In connection with two
politically sensitive norm review proceedings in the seventies (concerning abortion 11 and
university organisation12) the Court dismissed the respective applications. These judgments
have been severely criticised by the conservative opposition party and by legal doctrine.
They reproached the Court of not properly implementing its constitutional powers and of
not sufficiently fulfilling its task to protect constitutionally guaranteed rights. It has to be
emphasised that these critics – correctly – pointed out that also “judicial self restraint” may
have a political function because it supports the legitimacy of the political majority party
currently in power.
Since the end of the seventies, the case-law of the Austrian Constitutional Court gradually
changed to a more and more value-oriented position, giving considerably more substantial
significance to human rights. Beyond doubt, this "new" case-law emanates from the fact that
the European Convention on Human Rights had been adopted in Austria in 1958 and was
granted constitutional level retroactively in 1964, and not least was influenced by the caselaw of the European Court of Human Rights in Strasbourg.13 The Constitutional Court
developed its case-law especially influenced by the principles of protection of confidence
and of proportionality inherent to the case-law of this Court. As a consequence it can be
stated that the Constitutional Court has become, in its interpretation of fundamental rights,
8
Berka, Verfassungsrecht, 322f.
Berka, Verfassungsrecht, 323f.
10
th
Hausmaninger, The Austrian Legal System, 4 Ed.,2011, 147.
11
VfSlg. 7.400.
12
VfSlg. 8.136.
13
Cf. Heller, Der Verfassungsgerichtshof, 2010, 384ff.
9
4
increasingly responsive to the standards developed and refined by the European Court of
Human Rights.14 Although the margin of appreciation of the legislator continued to exist, it
became much narrower.
This new approach is best shown with respect to those fundamental rights that are subject
to legislative restriction. For example: The fundamental freedom to pursue gainful activity
(Article 6 Basic Law on the General Rights of Nationals) states that "every national can [...]
practice every kind of gainful activity subject to the conditions of the law." The freedom to
pursue gainful activity states only that interference is admissible based on a legal provision
(so-called "formal reservation of interference").15 In the case-law since 1984 the
Constitutional Court developed this "formal reservation of interference" insofar as not any
restriction provided by law was permitted, but only if there is a compelling public interest
and if the measure chosen to protect this public interest appears to be suitable, adequate
and justified.16
5.
On March 14, 2012 the Austrian Constitutional Court has delivered a
remarkable judgment17 concerning the status of the Charter of Fundamental Rights of the
European Union (CFR) in the Austrian constitutional system.
According to the Court’s case-law until this date, “constitutionally guaranteed rights” as well
as the entire domestic constitutional order – including the European Convention on Human
Rights and its Protocols which have constitutional status in Austria – formed the standard for
the Court’s review. European Union law, however, is not part of Austrian constitutional law.
Therefore, the Constitutional Court based its former case-law on the assumption that EU law
does not form a standard for its review.18
With regard to the CFR the Court has recently changed its view: In its mentioned judgment
the Court held that the rights and freedoms guaranteed by the CFR may be invoked as
“constitutionally guaranteed rights”19 and may also serve as a standard of review for
constitutional norm review proceedings. In any case this applies to the guarantees of the
CFR which equal “constitutionally guaranteed rights” in wording and determinateness.
Firstly, the Constitutional Court argues that within Union Law the CFR is an area that is
markedly distinct from primary and secondary European Union Law. In this respect, the
14
Hausmaninger, Legal System, 149.
Stelzer, An Introduction to Austrian Constitutional Law, 87.
16
Hausmaninger, Legal System, 148.
17
U 466/11 et al.
18
E.g. VfSlg. 15.753, 15.810, 19.492 et al.
19
Cf. Articles 144 and 144a B-VG.
15
5
rights and freedoms guaranteed by the CFR distinctly differ from the legal positions derived
by the European Court of Justice from general principles of law and the constitutional
traditions common to the Member States, before the Lisbon Treaty.
Secondly, the Constitutional Court brings the principle of equivalence in European Union law
into play. According to this principle proceedings provided in Member States’ law for the
implementation of rights granted by directly applicable Union law must not be less
favourably designed than proceedings that exist for comparable rights derived from the
domestic legal order.
Actually many rights of the CFR are modelled – both in wording and intention – on the
corresponding rights of the European Convention of Human Rights which has constitutional
status in Austria. Its rights are “constitutionally guaranteed rights” whose protection must be
ensured by the Constitutional Court. Moreover, for the area of application of Union Law, the
rights guaranteed by the CFR serve the same purpose as “constitutionally guaranteed rights”
in the autonomous Austrian legal order. In view of this similarity it would counter the notion
of a centralised constitutional jurisdiction provided for in the Austrian Federal Constitution if
the Constitutional Court were not competent to adjudicate on largely congruent rights such
as those contained in the CFR.
The judgment U 466/11 of the Constitutional Court is published on the website of the Court
http://www.vfgh.gv.at in German and English.