The History of the Constitutional Court
1867 to 1918 – Precursors in the monarchy: Imperial Court & State Court
The Imperial Court (1867-1919) of the Constitutional Monarchy was a precursor of the Constitutional Court. The Imperial Court owes its importance to a number of institutional peculiarities that still exist today and distinguish the Austrian Constitutional Court from other constitutional courts. It was established within the framework of the so-called December Constitution in 1867. The Court’s powers were limited to decisions in certain conflicts of jurisdiction, certain pecuniary claims against and between territorial authorities, and complaints of citizens regarding violations of their political rights. In 1919, these powers were assigned to the German-Austrian Constitutional Court. Subsequently, they were transferred to the Constitutional Court of the Republic of Austria in 1920, which was furnished with additional powers. The president of the Imperial Court and his deputy were appointed by the Emperor at his sole discretion, whereas the twelve members and four substitute members were chosen from slates of three candidates each proposed in equal parts by the two chambers of the Imperial Council (Reichsrat). No specific qualifications were required as a prerequisite for appointment. Provisions on incompatibility were non-existent. The members of the Imperial Court were appointed for life. The Imperial Court had so-called permanent reporters, an institution to be taken over later by the Constitutional Court, who were elected by the Court from among its members for a period of three years. The president of the Imperial Court did not have the right to vote, except in case of a tie.
Also in 1867, a State Court was established for the purpose of deciding cases of ministerial impeachment. This court was composed of twenty-four independent citizens knowledgeable in matters of the law, who were elected in equal parts by the Abgeordnetenhaus and the Herrenhaus for a period of six years. The State Court was never called upon to pronounce on a case.
1919 to 1920: The (German-) Austrian Constitutional Court
In 1919, in the republican era, the German-Austrian Constitutional Court was established. It took over the functions of the Imperial Court and the State Court. It was furnished with the power to review laws, i.e. laws adopted by a provincial assembly, upon the request of the state government. It consisted of a president, his deputy, and eight members and four substitute members. In the same year, their number was increased to twelve members and six substitute members. They were nominated by the State Council (Staatsrat), which had been granted all the rights previously exercised by the Emperor on the basis of the 1867 Constitution. In later years, they were appointed by the president of the National Assembly upon the government’s proposal.
1920 to 1934 – The Constitutional Court based on the Constitution of 1920
Pursuant to the Constitution (Federal Constitutional Law – B-VG) adopted by the constituent National Assembly on 1 October 1920 and entered into force on 10 November 1920, the Constitutional Court, which had been established in 1919, was entrusted with all the functions formerly exercised by the Imperial Court and the State Court. At the same time, the Court was given a whole range of new tasks: the power to review the lawfulness of regulations and the constitutionality of federal laws upon application by a provincial government (the German-Austrian Constitutional Court already had the power to review provincial laws), to review federal and provincial laws in an ex-officio capacity, to review the lawfulness of elections, and to rule on violations of international law. Moreover, the provisions regarding the constitutional responsibility of supreme authorities of the state were expanded. By and large, those are the powers exercised by the Constitutional Court in its present form. The president, the vice-president, and the members and substitute members of the Court – half of them nominated by the National Council, the other half by the Federal Council – were appointed for life. The members were not required to be jurists.
Incompatibility provisions were first introduced through the 1925 amendment to the Constitution. Moreover, the powers of the Constitutional Court were modified. Upon application by the federal government or a provincial government, the Court was to decide whether the adoption or enforcement of a law was within of the jurisdiction of the federal government or a provincial government (Kompetenzfeststellung / establishment of jurisdiction).
The 1929 amendment to the Constitution led to a more extensive reconfiguration of the constitutional order. The primary goal of the amendment was to strengthen the position of the federal president as a counterweight to the parliament. In an effort to “depoliticize” the Constitutional Court, modalities for the appointment of members and substitute members of the Court were introduced which, to a large extent, still apply today. The amendment provided for the members of the Court to be appointed by the federal president, with the right to propose members being shared between the federal government, on the one hand, and the two chambers of the parliament, on the other hand. The number of members, besides the president and a vice-president, was limited to twelve regular members and six substitute members, all of whom had to be qualified in law. The acting members were recalled and replaced by newly appointed members. The existing rules on incompatibility were supplemented by a provision barring employees or office-holders of political parties from membership of the Constitutional Court. Moreover, an age limit of 70 years was introduced. The amendment resulted in a further modification of the powers of the Constitutional Court: from now on, the Supreme Court and the Administrative Court were included among the institutions entitled to file an application for the review of laws and regulations.
However, this amendment to the Constitution was not able to ease the political tension prevailing in Austria at that time. In the wake of a controversy over a vote taken in the National Council on 4 March 1933, the three speakers of the National Council stepped down all at once. The federal government, stating that the National Council had opted for its “self-elimination”, prevented it from reconvening and from then on ruled through regulations on the basis of the 1917 War Powers Act – an authoritarian regime that excluded the legislative bodies. Over 100 petitions for the review of such regulations were submitted to the Constitutional Court. However, a government regulation – also based on the War Powers Act – prevented the Court from taking decisions in its regular composition. Thus, the Constitutional Court was paralyzed (“elimination of the Constitutional Court”).
1934 to 1938: The Constitutional Senate of the High Federal Court
The Constitution of 1934 was also adopted through a regulation based on the 1917 War Powers Act. In order to “sanction” the new Constitution, a “rump parliament” was convened by decree on the day of its promulgation. Since the delegates of the Social Democratic Party were all absent, their mandates were declared terminated by decree. This Constitution provided for a High Federal Court, which was called upon to ensure the constitutionality of legislation and the lawfulness of the public administration, essentially exercising the functions of the former Administrative Court and the former Constitutional Court. The president, the vice-president, and the other members of the court – the Constitution did not specify their number – were appointed by the federal president upon proposals made by the federal government. The conditions for appointment included legal qualifications, ten years of professional experience and the absence of circumstances of incompatibility. The structure of the Court was based on senates pronouncing judgments. The membership of the Constitutional Senate was increased by another four members appointed by the federal president from slates of three candidates each proposed by the State Council and the Provincial Council (Staatsrat und Länderrat).
After the annexation of Austria to the German Reich, the High Federal Court lost its constitutional powers. The court itself continued to exist, but was converted into a Reich authority called the Vienna Administrative Court in 1940. In 1941, the court was merged with other administrative courts of the German Reich, operating as the “Vienna External Senate” (Außensenat Wien) as part of the Administrative Court of the German Reich (Reichsverwaltungsgericht).
Since 1945: The Constitutional Court
The Constitutional Court was re-established and restored to its pre-1933 powers in 1945; it resumed its activities in 1946. In the course of the following decades, the powers of the Court were repeatedly extended and some of the legal provisions pertaining to its organization were modified.
Through the 1964 amendment to the Constitution, the Court was assigned the power to review the lawfulness of treaties.
An important amendment to the Constitution adopted in 1975 harmonized the provisions governing the review of laws and regulations and enlarged the group of potential applicants entitled to file for such review. As a parliamentary minority right, one third of the members of the National Council were henceforth authorized to contest federal laws before the Constitutional Court. One third of the members of provincial parliaments were granted the right to challenge provincial laws. Furthermore, any court of second instance was granted the right to file applications with the Constitutional Court. The newly created instrument of the individual application even empowered individuals to contest provisions of laws or regulations before the Constitutional Court – albeit under very strict conditions.
Amendments to the Constitution adopted in 1981 and 1984 were intended to ease the burden on the Constitutional Court. Under certain conditions, the Court was allowed to refuse to deal with complaints relating to actions taken by the public administration pursuant to Article 144 of the Constitution. In 1981, the Ombuds Board was given the right to challenge regulations before the Constitutional Court.
Since 1991, the Independent Administrative Senates created in 1988 have been empowered to file for a review of legal norms and regulations (Normenprüfung). At the same time, the Constitutional Court ceased to exercise its power to rule on direct acts of enforcement by administrative authorities. Decisions of this type were henceforth taken by the Independent Administrative Senates, with the Constitutional Court only called upon to review such decisions. Furthermore, one third of the members of the Federal Council were granted the right to challenge federal laws.
The system of proposing candidates for the position of judges at the Constitutional Court was modified through an amendment to the Constitution adopted in 1994. The obligation of the National Council and the Federal Council to propose slates of three candidates each to the federal president was abolished. Since then, both entities, as well as the federal government, have had the right to propose only one candidate each.
Through the constitutional amendment adopted in 1997, the Federal Asylum Senate was established as an additional independent administrative senate with special jurisdiction. In 2002, the Federal Procurement Office (Bundesvergabeamt) was granted the right to contest laws and regulations before the Court.
As of 1 July 2008, the Constitutional Court was assigned the power to decide on petitions contesting decisions taken by the Asylum Court (which replaced the Independent Asylum Senate as an appellate court) on grounds of violation of constitutionally guaranteed rights or application of (largely) unconstitutional laws or unlawful regulations.
The 2012 amendment to the Act on Administrative Justice, effective as of 1 January 2014, established a new regime of effective judicial protection in matters relating to the public administration. The system of administrative appeals, i.e. the possibility of contesting administrative decisions before a higher administrative authority, was abolished (except in matters within the sphere of responsibility of a local authority). The appellate authorities, including the Independent Administrative Senates in the Austrian provinces and the Federal Procurement Office, were replaced by a total of eleven administrative courts of first instance: the Federal Administrative Court as the successor to the Asylum Court, the Federal Finance Court, and one provincial administrative court for each province. Applications for review of the rulings and decisions rendered by these courts can be filed with the Administrative Court and complaints can be lodged with the Constitutional Court.
Without any doubt, the restructuring of administrative justice was the most substantive administrative reform since 1925.
Another innovation entered into force on 1 January 2015: the party’s request for legal review. This legal remedy enables any party to proceedings before a court of (criminal or civil) law, on the occasion of an appeal against the first-instance decision, to file with the Constitutional Court for the repeal of the legal provisions applied in the respective proceedings. Moreover, as of now, all courts of law, including courts of first instance, have the right to challenge the constitutionality of laws before the Constitutional Court.