Constitutional Court (Austria)
The Constitutional Court in Austria is the tribunal responsible for judicial review.
It verifies the constitutionality of statutes, the legality of ordinances and other secondary legislation, and the constitutionality of decisions of certain other courts. The Court also decides over demarcation conflicts between courts, between courts and the public administration, and between federal and state bodies. It hears election complaints, holds elected officials and political appointees accountable for their conduct in office, and adjudicates on liability claims against Austria and its bureaucracy.
The Court consists of fourteen members and six substitute members, appointed by the president on nomination of the Cabinet, the National Council, and the Federal Council. Although theoretically supposed to, the Court rarely meets in plenum and rarely hears oral arguments; most cases today are decided behind closed doors by panels of either nine or five members. Opinions tend to be concise and academic.
The Constitutional Court is very powerful but has historically exhibited considerable judicial restraint.
Christoph Grabenwarter is currently serving as the court's president.
Powers and responsibilities
Liability claims
The Constitutional Court adjudicates on liability claims against the Republic, its provinces, and its municipalities.Demarcation conflicts
The Constitutional Court adjudicates on competing claims of authority:- between courts and the bureaucracy;
- between general courts and administrative courts;
- between other courts and the Constitutional Court itself;
- between provincial governments;
- between one of the provincial governments and the national government.
The national government and the provincial governments can ask the Constitutional Court to decide a possible demarcation conflict before it becomes an actual controversy. If the national legislature is considering an act that the national cabinet thinks would infringe the area of competence reserved to the provinces, the national cabinet can send the draft act to the Constitutional Court for review. The national cabinet can also ask for a review of secondary legislation it is considering. Provincial cabinets, likewise, can ask the Court to review draft provincial legislation, primary or secondary. The legislation has to be draft; it cannot have been resolved upon yet. The Court's verdict becomes constitutional law and is published as such in the statutory gazette. The verdict thus binds even the Constitutional Court itself, preventing it from overruling itself on the matter; only an amendment to the constitution can supersede the decision.
Judicial review
The Constitutional Court ensures that all Austrian legislation, primary or secondary, conforms to any Austrian legislation outranking it.Statutes and international treaties that have been elevated to statute rank by the legislature have to conform to the constitution.
Executive ordinances and ordinary treaties also have to conform to ordinary law.
Supplementary ordinances additionally have to conform to the original ordinances they derive from.
A road sign, for instance, needs to be legal under the Road Traffic Act but also in compliance with the Ministry of Commerce Regulation on Road Signs.
Since the Austrian constitution defines Austria to be a federation, the provinces are federated states on paper and have token constitutions of their own; provincial law has to conform with these as well as with the national constitution.
The Court does not check legislation for compliance with European Union law.
Unconstitutional laws and ordinances are not void ex tunc. The Court's decision rescinds them just like abrogation by the legislature or the administration would have done; decisions based on them that have been made in the past remain standing.
The Court has some latitude with respect to the date its decision becomes effective. Usually, laws and ordinances found to be unconstitutional go out of force the day after the publication of the verdict.
To prevent disruption, however, the Court can set a grace period during which a piece of unconstitutional legislation still remains on the rolls and may still be applied. The grace period may last up to six months for ordinances and up to eighteen months for laws. The Court may allow eighteen months for ordinances that are statutes because their disappearance will require a new statute to deal with. On the other hand, the Court can also make its decision retroactive. The Court's broad discretion forces the Court to "legislate from the bench" whether it wants to or not: the Court does not simply announce a finding it notionally cannot avoid; it is officially choosing policy.
The Court cannot void treaties because Austria cannot unilaterally rescind an agreement it has entered into under international law. The Court can, however, order Austrian officials to stop applying the treaty. If this puts Austria in breach of treaty obligations, it is up to the administration to negotiate an amendment to the treaty or a withdrawal from it. As with statutes and ordinances it strikes, the Court can grant a grace period during which the provisions of the treaty can still be applied. The grace period may last up to two years for treaties that alter the constitution of the European Union and up to one year for most other treaties.
Legislation can be challenged before the Constitutional Court by any private person, natural or other. The complaint has to argue that the complainant is being violated in their rights by the piece of legislation at issue, actually and not just potentially. The complaint also has to argue that there is no plausible way for the complainant to get the problem resolved through any other procedure. Depending on the type of the statute, ordinance, or treaty, the Court can often also be called upon by the national government, by regional governments, or by groups of national or regional legislators.
Legislation can also be challenged by courts that are trying cases for whose outcome it is relevant.
Legislation can further be challenged by one of the parties to the a trial, but only after the trial court has handed down its verdict and only if the verdict actually references the piece of legislation in question.
Verdicts by administrative trial courts can additionally be challenged on the grounds that they violate the relevant party's constitutional rights in some other way.
This possibility lets the Constitutional Court exercise judicial review not just of ordinances but also of individual-scope actions of the executive branch: A citizen who feels violated in their constitutional rights by an administrative decision or assessment files suit in an administrative court. If the administrative court agrees with the complainant, it overrules the administration. If the administrative court does not, the complainant can escalate the matter to the Constitutional Court. If the Constitutional Court agrees with the complainant, it overrules the administrative court, prompting a retrial; it thus potentially also overrules the administration.
Election complaints
Election results can be challenged before the Constitutional Court. Elections that can be challenged include, but are not limited to, presidential elections, elections to the National Council, provincial legislatures, municipal councils, municipal district councils, and the European Parliament. The Court hears challenges not just to elections by the general public but also to elections by representative bodies, for example elections of Federal Council members or provincial governors by provincial legislatures, elections of mayors by municipal councils, or elections of municipal district chairpersons by municipal district councils. It also hears challenges to the results of popular initiatives, popular consultations, and plebiscites.Elections by the general public can be challenged by the participating political parties or candidates; elections by representative bodies can be challenged by a motion of one tenth of the relevant body's members. Results of popular initiatives are challenged by the initiator or by a motion of four members of a legislature. A petition by voters challenges the results of a popular consultation or a plebiscite ; the petition needs to have between 100 and 500 signatures, depending on the size of the constituency.
If the Court finds that election law has been violated in a way that could have affected the outcome, the Court can order a recount or void the election outright, either in its entirety or least for the voting district in question. The Court is to void the election if the complainants prove that the irregularity really affect the outcome. Popular misconceptions regarding this point have caused controversy in the past. The Court was accused of overreach, for instance, when it ordered a repeat of the 2016 Austrian presidential election. The losing side could prove infractions but did not show that these infractions were the reason they had lost. The Court would not have been to void the election; some commentators mistakenly believed it would also not have been to.
The Court has historically been fairly strict in its insistence on proper procedure. It has voided elections over irregularities that could not possibly have affected the outcome, just as a matter of principle. Most notably, the Court has ordered a repeat of the 1995 National Council election in the town of Reutte. Sonja Moser, Minister of Family Affairs at the time, was visiting her native Reutte on election day and was able to cast a vote even though she was not on the voter roll; as a minister, she was living in Vienna and would have been on the roll in Vienna. Polling station officials noticed the problem but chose to turn a blind eye. To make a firm point about election officials turning blind eyes, the Constitutional Court had the citizens of Reutte vote again.