The Austrian Constitutional Court: Kelsen’s Creation and Federalism’s Contribution?

Résumé

En concordance avec le questionnaire à la base de ce numéro spécial, le présent article traite des rapports entre la Cour constitutionnelle et le fédéralisme en Autriche. Il met cet aspect en lumière vis-à-vis de la perception largement partagée d’un modèle constitutionnel autrichien keynésien par essence. Ce faisant, nous postulons que ce modèle ne peut être entièrement compris que si l’on conjugue les enjeux du fédéralisme passés et actuels.

Abstract

In line with a standardized question sheet for this special issue, this article discusses the relationship between the Constitutional Court and federalism in Austria. It highlights this aspect vis-à-vis the common perception of an inherently Kelsenian nature of the Austrian model of constitutional adjudication. In so doing, it argues that this model can only be fully understood by taking the both the historical as well as the current impact of federalism into account.

Table of content

1.Introduction

1The Austrian Constitutional Court (Verfassungsgerichtshof or VfGH) has risen to global prominence1 due to its pioneering role2. As the prototype of concentrated constitutional review it may at first glance appear to be the very manifestation of Kelsenian legal theory. Hans Kelsen would even refer to the constitutional court as his favorite child3. However, Kelsen was not given license to write a constitution purely according to his legal theoretical assumptions. Rather, he was able to promote some of his concepts in the context of political compromises giving rise to Austria’s 1920 federal constitution4. Key to this was the federal structure of the new Republic. Transforming political conflicts between the federal and federated entities into legal ones proved essential to Kelsen’s pièce de résistance and left a lasting mark. Kelsen’s legal scholarship eventually shifted the focus of scholarly attention to the hierarchy of legal norms5. The ongoing Europeanization of Austria’s constitution has more recently led to another shift in favor of fundamental rights. Nonetheless, federalism remains a key aspect of Austrian constitutional adjudication to this day while the constitutional court continues to serve as an irreplaceable pillar of federalism in the framework of Austrian constitutional law.

2. Federalism in Austria: Key principles and their role in the rise of constitutional adjudication

2According to its federal constitution, Austria is a Bundesstaat - a federal state6. For Kelsen, this presented a challenge to the then-dominant theory of federal states: The new constitutional order had clearly not arisen from a compact of sovereign states but rather evolved from the decentralization of an originally highly centralized state7. However, the federated entities or Länder had old roots preceding not only the Republic but even modern Austrian statehood8. They had a history as direct subjects of the Holy Roman Empire (reichsunmittelbar) albeit de facto united by a common Habsburg prince, ruling as archduke, duke or count etc. respectively. The gradual waning of the Holy Roman Empire allowed for the no less gradual evolution of Austrian statehood which neither started with the Treaties of Westphalia in 1648 nor culminated in them. Several factors like the military threat posed by the Ottoman Empire hastened the evolution of the Ländergruppe or grouping of (imperial) territories ruled by the Habsburgs into an efficient de facto state with common military and administrative structures. By the time of the dissolution of the Holy Roman Empire in 1806 it was this de facto already existing state rather than the various Austrian territories, that became sovereign. The new formal common bond was the Austrian Kaiserreich or Empire. It had been preemptively promulgated in 18049 but already reflected political and diplomatic realities10.

3The events of 1918 could be interpreted as dissolving these common bonds and thus giving sovereignty to the Länder11 (sometimes translated as states or provinces, neither of which fully captures the German meaning). Yet, it was not the imperial predecessors to the Länder, the Kronländer, which formed the basis of successor states. The latter were rather based on ethnicity, resulting in newly created ethnocentric states like Czechoslovakia or Poland. The remaining parts not claimed by them or by the victorious powers (quite literally “Ce qui reste c’est l’Autriche”12) had a mostly German speaking population seeking ethnic self-determination, originally as part of the new German Republic13. Kelsen would later recall “rapidly progressing movements for self-determination by the Czechs and the Southern Slavs” as having forced German-speaking Austrians to “carpenter a makeshift house to call their own.”14.

4The Länder officially declared their “accession”15 to this new state16 of “German” Austria. This was, however, not generally accepted as the legal foundation for “German” Austria’s statehood. The Provisionary National Assembly “noted” these declarations of accession by the Länder as well as Kreise and Gaue (roughly translatable as districts)17. Hans Kelsen in particular did not consider the federal state as a product of accessions by sovereign states18. In this, he is in line with prevailing legal scholarship today even though the opposite interpretation used to hold considerable scholarly sway19. The legal ideal type painted by Kelsen should be contrasted with the political reality at the time for a more complete picture: It is highly uncertain whether the Austrian federal (or rather at the time central) government could have exercised effective control over Austrian territory without substantial concessions to the Länder. The constitution20 names the Länder in their German alphabetic order: Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria, Tyrol, Vorarlberg and Vienna. Two of the Länder are atypical in important respects: Vienna constitutes both a Land and the capital city while not constituting a former Kronland (the Länder in imperial Austria)21. Burgenland equally lacks a pre-Republican tradition as a Land as it was created in 1918 from mostly German speaking parts of western counties22 of the Kingdom of Hungary23.

5The link between the Austrian system of constitutional adjudication and Kelsenian legal theory is well established24. This influence of legal theory can be boiled down to one key notion: If a hierarchy of legal norms can be scientifically ascertained and constitutional law identified as a level within this hierarchical order25, a court can serve as the objective guardian of the highest level of legal norms26. While more than one possible interpretation of constitutional norms may exist, Kelsen stressed that this applies to any judicial application of legal norms27. Older prominent calls for constitutional review of Acts are also noteworthy28. However, the concrete necessities of federalism would form the bedrock of constitutional politics, which allowed these ideas to be enshrined in constitutional law. In other words, the political intent of the fathers of the Austrian constitution employed a partially Kelsenian frame in the process of constitutional law making provided by Kelsen himself. Their constitutional intent was, however, not necessarily logically derived from Kelsenian legal theory29 and relied on political compromises between the major parties.30 The idea of implementing a constitutional court as legal mediator between the federal government and the Bundesländer31 (forthwith Länder) itself predates the Republic and points to a different source: Karl Renner, who had envisaged it for a multi-ethnic Austrian federation in 191732 and later called on Hans Kelsen to advise on the drafting of the new constitution. Moreover, a constitutional court was installed before the Constitution of 1920 (B-VG) and in 1919, given the authority to check bills of the Länder33 for possible violations of the federal constitution. This was the result of a compromise which became necessary due to stark resistance by the Länder to an earlier approach towards ensuring the compliance of their laws with federal constitutional law: Assent by the federal government34. Yet such a one-sided constitutional review mechanism not only ran counter to a tradition of equality between the Acts of the former Reich and the Länder.35 It also faced a greater political struggle between the two dominating political parties on the legal relationship between the Acts of the federal and federated entities and more broadly on the question of federalism.36

6In the process of crafting of the B-VG, the debates on a potential competence of the Constitutional Court to review the constitutionality of laws were embedded in debates on the federal structure of the Republic. Representatives of the federal government pursued the competence to initiate a constitutional review procedure of the Länder’s Acts. They ultimately settled for equality in the form of mutual access to judicial control of legislation, empowering the Länder to initiate a review of Federal Acts as well37. According to the report by the Constitutive National Assembly’s Constitutional Committee, the Constitutional Court was to be the “clip” holding together the federal state (Klammer des Nationalstaates)38 – a term that can still be found in today’s legal commentaries on the B-VG39. However, the overwhelming number of cases of constitutional review currently stems from review procedures related to the protection of constitutional rights of individuals or review procedures initiated by the Court or other courts40. This reflects a stable pattern with little change over the course of the last two decades41.

7A key characteristic of the Austrian model of federalism is its highly centralized judicial structure42. This includes the Constitutional Court’s dual capacity as the guardian of constitutional law of both the Bund and the Länder43. It is therefore not just the guardian of the constitution, but the guardian of multiple constitutions44, a key difference to the German model of judicial federalism. By serving as the constitutional court for the Länder as well, the Constitutional Court’s role as a clip for the federal state is reinforced: Diverging interpretations and any sense of hierarchy between separate constitutional courts of the Bund and the Länder are avoided.

8The B-VG does not regulate the Constitutional Court in conjunction with the “ordinary” judicial branch (ordentliche Gerichtsbarkeit) but rather in conjunction with the (Supreme) Administrative Court (Verwaltungsgerichtshof) as well as the recently introduced lower-level administrative courts45. This is a direct result of path dependency stemming from Austria’s 1867 constitution. It had established the Reichsgericht or Imperial Court46 as a predecessor to the Constitutional Court, serving as a special administrative court in its role as guardian of fundamental rights47. The successful linking of this traditional competence with constitutional review allowed the expansion of the Court’s power to review legislation beyond the concerns of federalism. The now-dominant protection against violations of individual fundamental rights did not figure prominently in the creation of the Austrian model of constitutional review48. It was however tied to the jurisdiction of the former Imperial Court which the Constitutional Court inherited49. The decisive subcommittee discussion demonstrates concerns to “take from (the Constitutional Court) the right to also decide on (an unconstitutional norm it would have to apply).”50 .The impact of fundamental rights protection was therefore mostly in an indirect one.

9Access to constitutional review of Acts has since been gradually expanded. A major overhaul of the Austrian constitutional system in 1929 introduced the right of the other two highest courts of the Austrian legal system, the Supreme Court and the (Supreme) Administrative Court, to initiate a review procedure of unconstitutional legislation which they would otherwise have to apply51. Only recently has this right been expanded to all courts52. The access of individuals to constitutional review was revolutionized with the (narrow) right of individual complaint against unconstitutional legislation (Individualantrag auf Gesetzeskontrolle) introduced in 197553. The recently introduced Gesetzesbeschwerde further increased individual access to constitutional review. A review procedure of unconstitutional legislation, constituting the legal basis of a case before first instance ordinary (ordentliche, a.k.a. civil and criminal) courts, can now be directly initiated by a concerned party before the Constitutional Court54.

10The division of jurisdiction between the Bund and the Länder follows a comparatively complex list55 which was completed during a major revision of the Austrian constitution in 192556. The length and detail of this list serves to remove most of the decentralizing potential of the general clause in favor of the Länder57. The B-VG provides for the Länder to have their own constitutions but regulates their core normative content including voting rights, the existence and basic structure of regional parliaments (Landtag), the legislative procedure and the regional government58. The Austrian model of federalism is not one of parallel or autonomous governance by the Bund and Länder. Rather, it is based on a model of intense interaction exemplified by the system of indirect federal administration (mittelbare Bundesverwaltung)59, which strongly enhances the actual importance of the Länder. In order to ensure effective governance by the Bund according to this model, the federal government or individual federal ministers can issue directives binding the governor of the Land (Landeshauptmann)60. Indirect federal administration, is thus a double-edged sword from the perspective of federalism: It strongly increases the actual importance of the Länder while creating an area where a hierarchical rather than equal relationship ensues.

11The basic federal structure has largely remained intact since 1920 albeit interrupted by two starkly different unconstitutional periods. In 1933, the federal government’s active abuse of the Republic’s own constitutional structure (see below) enabled homegrown authoritarianism to effectively replace the democratic system. This was followed by the occupation61 by Nazi Germany in 1938 lasting until 1945. The current challenges facing the Constitutional Court have not been driven by federalism, but rather by challenges posed by the European legal area62. It is this Europeanization and the new focus on fundamental rights resulting thereof which is currently driving the most remarkable recent development of the Court’s case law63. Finally, one self-assessment by the Constitutional Court is noteworthy: In Austrian constitutional law, Gesamtänderungen or changes of the basic character of the federal constitution require a special procedure including a referendum (Volksabstimmung)64. Even constitutional Acts and provisions can be unconstitutional and become subject to constitutional review if they fail to meet this requirement65. To assess whether such a change took place, several key principles have been put forward, including the rule of law and federalism. It is the former, not the latter, to which the Constitutional Court has strongly tied the qualified constitutional protection of its own existence66.

3. Organization of the Constitutional Court

12The composition of the Constitutional Court fails to reflect its key role the as clip between the federal and the federated levels67. However, it fits the more general constitutional pattern of executive rather than judicial federalism. Nonetheless, the original Kelsenian constitution, had come very close68 but failed to achieve “full parity” between the National and the Federal Council of the Austrian parliaments in this regard69. Current constitutional law no longer bears any semblance to such a parity: Six out of twelve judges are proposed by the federal government, as compared to three members proposed by the National and Federal Councils each. Out of a total of six substitute judges only one is nominated by the Federal Council70 (Bundesrat, a legislative organ representing the Länder)71. While mathematically possible (twelve members, nine Länder) there is neither any guarantee of each federated entity being represented nor is it currently the case72. Only three judges and two substitute judges have to have their permanent residence outside of Vienna73.

13The detailed provisions on the organization and procedure of the Constitutional Court are constitutionally delegated to a “special federal Act”74. This Act’s (Verfassungsgerichtshofgesetz 1953 or VfGG) general procedural provisions provide for the invitation of all concerned parties to oral arguments75. Moreover, procedures with special relevance for the federal dimension of constitutional review contain additional provisions ensuring the invitation of the federal or federated parties to oral arguments76 or the summation to submit prior written statements77. Moreover, the Act defers to the Austrian Civil Procedure Act (Zivilprozessordnung or ZPO) for all procedural questions not regulated in the Act itself78. The VfGG also provides for the members of the Constitutional Court without permanent residence in Vienna to be compensated for the expenses for traveling to and staying in Vienna. The extent of such compensation, however, is to be regulated by the federal government rather than by representatives of the Länder79. The financing of the Court is regulated in the Bundesfinanzgesetz80 and therefore tied to the constitutional procedure for passing federal legislation81.

14Neither the composition of the Court nor its financing therefore strongly reflect federalist tendencies. This is however mitigated by a lack of centralizing judicial activism82 stemming from the Court’s focus on serving as a neutral arbiter. This is reflected in its approach to cases on the distribution of competences between the Bund and the Länder and resulted in a special brand of historical interpretation to settle questions on the competences of the Bund and the Länder: the Versteinerungstheorie or petrification theory83. Such an approach sharply diverges from the Court’s more dynamic approach to human rights, being tied to the Court’s strong commitment to interpreting the law as intended by its framers in questions relating to federalist power relations. Its composition and financing therefore do not translate into a self-perception by the Court as a centralizing agent. Rather, the Court seeks to limit itself the applying positive law on the distribution of competences as originally intended and therefore guard the constitutional compromise as intended rather than having either a centralist or a decentralist effect.

4. Competences of the Constitutional Court and the effects of its decisions

15The Austrian federal constitutional system generally relies on an ex post review of legal norms by the Constitutional Court. An important exception was made to prevent a conflict of norms created by the Bund and the Länder. In cases of planned legislation and administrative acts, potential normative conflicts between the federal and the federated levels can be preemptively prevented by referring the matter to the Constitutional Court84. Once passed, Acts by both the Bund and the Länder are subject to constitutional review which is complicated by a highly fragmented federal constitution. It is important to note that despite the existence of the B-VG, there is no single constitutional document. The original constitutional document had already awarded constitutional rank to other Acts85. Furthermore, it provided for the possibility not only to pass further Constitutional Acts but also to elevate individual provisions of a “simple” or non-constitutional Act to constitutional rank86. The resulting degree of fragmentation has been reduced from its earlier peak to a still-impressive number of approximately fifty Acts with constitutional rank and more than a hundred Acts containing provisions with constitutional rank87.

16The right to refer a matter to the Constitutional Court has expanded since the B-VG’s inception. Originally strongly focused on mutual review by the Bund and the Länder of the constitutionality of each other’s Acts, the focus on individual complaints has been considerably strengthened. As outlined above, the inception of the current federal constitution brought with it an indirect review system: appeals against administrative decrees leading to an ex officio review the Act or the ordinance the decree was based upon. As described above, access to constitutional review was gradually expanded, but was never limited to Acts. Rather, the concentration of review power with the Constitutional Court applies to all (domestic) legal norms of general and abstract nature. This applies not only to the review of the constitutionality of Acts (Gesetze or Acts of the Bund and the Länder) created by the legislative branch but also to the legality of ordinances (Verordnungen Acts of the Bund and the Länder) created by the administrative brand, even rendering exceptions to this model of centralized review unconstitutional88. The jurisprudential roots for this centralized review system of all legal norms of a general and abstract nature predate the Republic89. This model of centralization even includes international (state) treaties (Staatsverträge) which are procedurally tied to either Acts90 or ordinances91.

17This concentration of review powers with one state organ (the Constitutional Court) played a decisive role in the coup d’état of 1933/1934 whose masterminds92 were keen on upholding the appearance of a legal transition. To this end, the Federal Government issued ordinances which were manifestly unconstitutional but not null. Contrary to the Federal Government, the Land of Vienna was politically dominated by Social Democrats rather than the Christian Social (Welfare) Party. Preempting the Land’s legal action, the Constitutional Court was effectively rendered inoperative93. As the concentration of review powers was still in force, no court could strike down the ordinances in question. The Achilles heel of the entire system of normative review was dealt a fatal blow. It may therefore appear peculiar at first glance that Austria would return to such a system after 1945. However, according to currently prevailing legal opinion, the Constitutional Court cannot be rendered inoperative (Ausschaltung) by a legal norm lower in the hierarchy of norms than the ones establishing its position as organ of normative review94.

18While the review of all general and abstract legal norms is concentrated in the Constitutional Court, the role of the Court with regards to individual and concrete legal norms differs sharply. Judgements of ordinary (ordentliche, a.k.a. civil and criminal) courts are never subject to review by the Constitutional Court. This used to be contrasted by the constitutional right of appeal against administrative decrees that violated constitutional rights95. As described above, this appeal system proved to be a driving force behind the development of Austrian model of constitutional adjudication. However, the recent implementation of lower-level administrative courts called this appeal system into question.96 It was ultimately remodeled97 into an appeal (Beschwerden) system against the judgements of lower-level administrative courts. Following the traditional model, such an appeal is directed either at the constitutionality of the judgement itself or at the legality of the general and abstract legal norm it was based upon98.

19Another competence of the Constitutional Court is the decision on conflicts of competences between the Bund and the Länder as well as conflicts amongst the Länder99. While only a tiny fraction of open cases before the Court stem from this procedure100, it can still be considered as key to the Austrian model of federalism. Moreover, the Constitutional Court exercises judicial oversight over all direct elections, spanning the Bund and the Länder as well as the municipalities101. Also spanning these levels (as well as municipal associations) is the Kausalgerichtsbarkeit which allows the Court to settle pecuniary claims against them in cases in which no alternative access to a court exists102. Another important competence from the vantage point of federalism is the Staatsgerichtsbarkeit by which members of the governments of both levels can be held accountable for violations of the law, which can result in their impeachment and even the loss of political rights.103

20The most important effect of Constitutional Court judgments concerns unconstitutional Acts. Contrary to the later German model, these are not declared null, but rather rescinded (aufgehoben)104, “destroyed” in the sense of the theory of norms. In Kelsenian terminology, the Court thereby serves as a “negative legislator”105. This entails two important “positive” aspects of legislative power: On the one hand, in the case of Acts, the Court can choose between different courses of action. Firstly, it can either rescind them ex nunc or set a deadline for rescission of up to 18 months106, thus giving the legislature of the Bund or the Länder time to act and thereby balancing the constitutionality of the law with possible negative effects on legal governance. Secondly, legal provisions rescinded by an Act declared unconstitutional by the Court become effective again unless the judgment pronounces otherwise107, thus effectively granting the Court considerable leeway108. Parliamentary oversight of the Constitutional Court would run counter to the Kelsenian design of Austrian constitutional adjudication, though parliament can exert some influence through its role in the nomination process of justices.

5. Conclusion

21The Austrian Constitutional Court is widely dubbed Kelsenian for good reasons. However, neither the Court’s genesis nor its structure can be explained without the impact of federalism, which is still apparent in its competences. In this sense the title of this paper may well be reversed: Federalism’s creation and Kelsen’s contribution. The Kelsenian theoretical framework eventually proceeded to outshine the federal aspect, helped by the outsized role of Hans Kelsen in Austrian constitutional scholarship and his revolutionary legal (and political) theory. It is in turn increasingly outshined by the third decisive factor which was omitted in the title: Fundamental rights protection, which had suffered from a comparatively weak role in both the constitutional monarchy and in the First (and early Second) Republic. This aspect was gradually reinforced by additional constitutional revisions. Thoroughly revitalized by the ECHR, a new challenge arose with the EU Charter of Fundamental Rights after the Lisbon Treaty. Nonetheless, the Constitutional Court continues to serve in its original primary function as part and parcel of a European system of constitutional courts.

22The implications of the Court’s traditional Kelsenian self-perception as guardian of the hierarchy of positive legal norms rather than as guardian of a legitimate relationship of various levels of governance now extend beyond federalist power relations: It has facilitated the process of adapting to the new role of European and international law as well as to the new role of European courts. Its role in a network of interconnected guardians of human rights protection and European legal governance has not undone its role in the domestic system of federalism. To this day, it remains the “clip” holding the federal state together, transforming political disputes between the federal and the federated levels into legal matters. Today, this role has been complemented by the Court’s membership in a wider European “clip” of courts which provide an increasingly similar role for a legally integrated Europe.

Notes

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About: Stephan G. Hinghofer-Szalkay