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Der sterreicher
Verfassungsgerichtshof (VfGH)
THE AUSTRIAN CONSTITUTIONAL COURT AND A BRIEF
OVERVIEW OF THE AUSTRIAN LEGAL SYSTEM

by R. Jacob Gilbert
POLI 391 | Dr. Brad Epperly
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! The Republic of Austria, a constitutional-based democratic country located in central

Europe, has had a tumultuous history in regards to the formation of its Constitutional Court. To

examine der sterreicher Verfassungsgerichtshof, or the Austrian Constitutional Court, one

must first examine why the court came into existence, the history of the court, and finally the

structure and power of the court.

Based on the ideas of Hans Kelsen, der sterreicher Verfassungsgerichtshof is the oldest

Constitutional Court in the world. While the German-Austrian Republic had a Constitutional

Court, it was not very powerful and was limited in scope. However, in 1920, at the end of the

German-Austrian Republic and the creation of the First Republic of Austria, the worlds first true

Constitutional Court was born.

The annexation of Austria to the Third Reich brought about the end of the First Republic

of Austria. With the fall of the First Republic of Austria, all courts in Austria lost power to those

in Nazi Germany (Schmitt). Not until the end of World War II was power returned to the

Austrian government and court systems. In 1945, Austria regained power and sovereignty, and in

1946, the Constitutional Court of Austria began functioning again for the first time in more than

twenty years (Verfassungsgerichtshof sterreich).

In Austria, the basic foundation of government is found within its Constitution. The

Austrian Constitution and government are ingrained with the ideology of the rule of law and

therefore all government actions must be deemed constitutional. Because of this reliance on the

constitution, Austria created a Constitutional Court. The Austrian Constitutional Court is very

important in regards to the protection of the Austrian Constitution so much that it has been

deemed the guardian of the Constitution (Holzinger).

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To understand the inner workings of the Austrian Constitutional Court, the Austrian legal

system must first be examined. The Austrian legal system is based in Roman origins it is

composed of public, private, and criminal law. Public law in Austria is much like public law in

most other countries. Public laws in Austria are constitutional laws set forth by the Austrian

Constitution and also laws that are set forth by the Austrian legislature.

The Austrian court system is very complex and is composed of many different courts. All

courts in Austria are divided into two separate groups/jurisdictions: courts of public law

jurisdiction and courts of original jurisdiction. Courts that have jurisdiction over public law are

the Supreme Court of Justice (Oberster Gerichtshof), the Constitutional Court

(Verfassungsgerichtshof), and the Administrative Court (Verwaltungsgerichtshof). Conversely,

courts that have original jurisdiction are the courts of first instance (such as District and and

Regional Courts), courts of second instance (such as a Province Court), and finally the Austrian

Supreme Court.

The Constitutional Court is a very unique and is an abstract idea compared to the

American judicial system. The Constitutional Courts primary function is to review the states

enforcement of constitutional rights and acts. The Constitutional Court has review power over all

other courts in Austria, and also can review legislation to deem whether or not it is constitutional

(Brandstetter). Officially, the Constitutional Court has the authority to settle disputes between the

Republic and its composing states, all courts in the legal system, and discrepancies within the

administrative court (Oehlboeck, Gerstner and Barotanyi).

The composition of the Constitutional Court is essential to the functioning of the court.

The Constitutional Court is composed of a variety of legal scholars. To be considered for a

position on the court, a prospective member must have a law degree and at least ten years of
 Gilbert 3

prior legal experience. There are twenty members of the Constitutional Court: a president, vice-

president, twelve ordinary members, and six substitute members. Prospective members are

appointed by various entities of the Austrian government. The Republic has the authority to

nominate candidates for president1, vice-president, plus half of the regular members and

substitute members. The National Council has the power to nominate three members and two

substitute members. Additionally, the Federal Council nominates three members and one

substitute member. Members of the court serve a life term (and have a mandatory retirement at

age seventy). To prevent court-packing, the Constitutional Courts judges positions on the court

are protected by federal law. If a powerful leader does not agree with a decision ruled by the

court, it is impossible for them to replace judges on the court. Additionally, at least five members

of the court must be from an area of Austria outside of Vienna in order to give a fair

representation of the entire country. Moreover, the Constitutional Court itself elects eleven

permanent reporters whose responsibility is to draft decisions on behalf of the court.

The court meets in session four times per year and each session lasts for three and one-

half weeks. In order for the court to have enough members present to convene a small assembly,

there must be a chairperson and at least four members present to decide cases. In order for an

actual quorum to be met, there must be at least one chairperson and eight members present. If for

any reason a member of the court believes a case should be heard by the entire court, any single

member of the court has the authority to demand a case be brought before the entire body. For a

decision to be rendered, only a simple majority must be reached. However, some cases require a

unanimous decision. Additionally, all deliberations and acts of decision-making are held in

private without publishing dissenting opinions (The Constitutional Court).

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!The president of the Constitutional Court is in charge of managing the judicial, financial, and
administrative tasks of the court.!
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The Constitutional Court has review power over several legal issues in Austria. Being the

highest and supreme court of authority in the Austrian judiciary, the Constitutional Court has

jurisdiction over many important topics. Among these topics are the review of regulations,

review of state treaties, review of rulings by the administrative tribunal, settling jurisdictional

issues, establishing jurisdiction on cases, and the legality of elections. Also, the court functions

as the official state court concerning cases brought against government officials. The

Constitutional Court also has jurisdiction over cases between two or more provinces and cases

involving international law.

One of the most important tasks of the Austrian Constitutional Court is judicial review.

The court is very limited in the selection of judicial review cases being brought before the court.

For a case to reach judicial review by the Constitutional Court, it must have either been

requested by an entity of the state or by an individual with claims to the case. Additionally, the

court itself has the ability to request review on a preexisting case or lawsuit. The Austrian

Constitutional Court has both concrete and abstract review procedures. In regards to abstract

review, the law requires either one-third of the National Council or one-third of the Federal

Council to vote in order to challenge the constitutionality of a law and have it be reviewed by the

Constitutional Court. However, when using concrete review, any court of public law jurisdiction

or court of original jurisdiction has the authority to request review. Additionally, individuals

have the ability to bring a case before the Constitutional Court. For an individual to make a claim

before the Constitutional Court, they must be directly connected to the claim/concern in

question. One instance in which an individual may make a claim before the court is if they

believe their rights were improperly represented by a court of first instance. Generally, cases
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brought before the Constitutional Court by individuals are cases that have already been heard and

are requesting an appeal.

When the court makes a ruling on judicial review, the court has the ability to decide

whether or not to retroactively enforce decisions. If the court elects to retroactively enforce a

decision, it must determine a certain time range for the decision to be applicable. Also, whenever

the Austrian government wishes to amend its constitution, the court has the ability to review the

potential new amendment to determine if the proposed amendment is compatible with the

existing constitution and the general good of the Republic. Regarding separation of powers, the

Austrian Constitutional Court, as stated earlier, has the ability to hear cases against any entity

that is interfering with the Austrian Constitution.

Although the Constitutional Court is meant to be a mediating and unbiased actor outside

the realm of politics, in reality, it is the most powerful political actor in Austria. Because of the

cases the Constitutional Court hears along with its judicial supremacy, every decision rendered

by the court directly impacts the Austrian political landscape.

The Constitutional Court plays a key role in Austrias role in the international political

and judicial landscape. Since Austria is a signatory of the European Convention of Human

Rights and the European Court of Human Rights, the Austrian Constitutional Court must

maintain contact with the supranational courts and respect the rulings of the higher courts.

Additionally, being the oldest Constitutional Court in the world, the Austrian court is used as a

model around the world whenever new Constitutional Courts are created

(Verfassungsgerichtshof sterreich).

Being a member of many international institutions, Austria is required to implement

various international treaties and decisions. Austria implements international law as an

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independent legal order. This independent legal order is implemented in a way in which it will

not interfere with national law. The Austrian Constitutional Court issued a decision stating that

international treaties are not directly enforceable and must be passed by the Austrian legislature

before it can take effect. Additionally, parties have the ability to bring a case regarding an

international treaty before the Austrian Constitutional Court. While the Constitutional Court has

some power in regards to international treaties, most decision-making on international affairs is

made by the Austrian National Council (Keller).

Austria is home to the worlds oldest Constitutional Court which is still used as the model

for developing new Constitutional Courts around the world. The Austrian Constitutional Court is

the most powerful court in the Austrian judicial system that has supreme power in all cases. The

Austrian Constitutional Court has both concrete and abstract review which allows the court to be

more accessible, thus allowing it to better serve and protect the Constitution of Austria.
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Works Cited

Brandstetter, Wolfgang. "The Austrian Judicial System." The Republic of Austria, n.d.

Holzinger, Gehart. The Constitutional Court of Austria. Verfassungsgerichtshof sterreich. 18

November 2015 <https://www.vfgh.gv.at/cms/vfgh-site/english/index.html>.

Keller, Helen. A Europe of Rights: The Impact of the ECHR on National Legal System. Ed.

Helen Keller and Alec Stone Sweet. New York: Oxford University Press, 2008

Oehlboeck, Johannes, Immanuel Gerstner and Brigette Barotanyi. The Austrian Legal System

and Laws: a Brief Overview. March 2014. GlobaLex.

<http://www.nyulawglobal.org/globalex/Austria1.html>.

Palmer, Edith. Austria: Administrative Courts Reformed. 6 January 2014. The Library of

Congress. 26 November 2015 <http://www.loc.gov/law/foreign-news/article/austria-

administrative-courts-reformed/>.

Schmitt, Hans A. "The End of the First Republic of Austria." Southwestern Social Science

Quarterly 39.4 (2003): 291-306.

Schmitz, Georg. "The Constitutional Court of the Republic of Austria." Ratio Juris 16.2 (2003):

240-265.

The Constitutional Court. Organization and Structure. 29 November 2015

<https://www.vfgh.gv.at/cms/vfgh-site/english/organization1.html>.

Verfassungsgerichtshof sterreich. "The Constitutional Court." Trans. Eva Frthauer. Vienna:

Druckerei Janetschek GmbH.