To date, the Austrian Constitutional Court has been the first and only constitutional court in Europe to decide that the Fundamental Rights Charter of the European Union, insofar as the freedoms emanating from it are comparable to the fundamental rights guaranteed in Austria, constitutes a standard of judicial review for the Constitutional Court, equivalent to the Austrian Constitution.
The Charter of Fundamental Rights of the European Union (FRC) is the Union’s catalogue of fundamental rights. It has been applicable as primary law since December 2009 and is binding upon the Member States by virtue of Article 6 of the Treaty on European Union (TEU) to the extent to which Union law is concerned. In purely formal terms, it is not part of the Austrian Constitution.
The Constitutional Court had to deal with the national consequences of the FRC in a number of cases, including case U 466/2011. In its decision of 14 March 2012 (VfSlg 19.632), the Constitutional Court, referring to the principle of equivalence developed by the Court of Justice of the European Union, held that the rights guaranteed by the FRC constitute a standard of judicial review in proceedings before the Constitutional Court, provided they are comparable, in terms of form and determinateness, to the constitutionally guaranteed rights emanating from Austrian constitutional law. According to the principle of equivalence, facts of a similar and comparable nature must not be treated differently under national law and Union law in respect of the protection granted by the law. However, most of the fundamental rights emanating from the FRC are comparable to those enshrined in the European Convention on Human Rights (ECHR), which ranks as constitutional law in Austria.
Therefore, and also against the background of the Austrian concept of concentrated constitutional justice, it would be incomprehensible if a petition based on the FRC were treated differently from a petition based on the ECHR. In its assessment of a possible violation of a fundamental right within the meaning of the FRC, the Constitutional Court takes guidance from the case law of the CJEU.
The Constitutional Court pronounced this landmark decision after several complaints had been lodged against decisions by the then Asylum Court criticizing the fact that no oral proceedings had been held. The complaints were rejected on grounds that the FRC had not been violated.
