The judicial review of the Federal Procurement Act was triggered by several proceedings initiated to review the constitutionality of the establishment of the Salzburg Procurement Monitoring Board pursuant to the Salzburg Provincial Procurement Act (G12/00). Before these proceedings were brought to a conclusion, the federal legislature had introduced section 126a to the Federal Procurement Act as a constitutional provision, which declared all provincial provisions regarding the organisation and jurisdiction of enforcement bodies in public procurement proceedings as of 1 January 2001 to be not in infringement of the Constitution and thus ensured their temporary validity up to 31 August 2002.
This act was adopted against the background of a Constitutional Court decision that had repealed a provision of the Federal Procurement Act. The federal government, at that time a coalition of the Austrian People’s Party (ÖVP) and the Freedom Party (FPÖ), did not obtain the necessary constitutional majority in Parliament. Instead, the parties unanimously agreed on a compromise: By way of a constitutional provision, they decided that the old provisions were to remain in force until the adoption of an amended act.
However, through this constitutional provision, the Constitutional Court would have been prevented from reviewing the jurisdiction of the Salzburg Procurement Monitoring Board. The Constitutional Court therefore initiated judicial review proceedings in respect of section 126a of the Federal Procurement Act (G 132-136/01). The Court came to the conclusion that the (simple-majority) constitutional legislator does not have the right to suspend the effect of the Constitution as the yardstick applicable to legal provisions of a lower than constitutional rank. A “loss of the yardstick function” of the Constitution was pronounced to be in violation of the principles of the rule of law and democracy (VfSlg 16.327). The question of whether such suspension of the Constitution could be brought about by way of an amendment of the Constitution by popular referendum was deliberately left open by the Constitutional Court.
This decision was a clear statement of the fact that constitutional law, as an expression of the fundamental principles of the Constitution, is superior to all other forms of law and that the Constitutional Court is called upon to guarantee the respect of these fundamental principles. Hence, the Constitutional Court is the guardian not only of the Constitution, but also of its fundamental principles.
