Rule of Law in Austria
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_If we deal with the Austrian rule of law, we face a number of specific phenomena which only to a certain extent can be identified explicitly in the text of the Federal Constitutional Act or -- – with regard to the Austrian federal structure -- – in the constitutions of the Länder. The core element of a formal understanding of the rule of law is the principle of legality (Art 18 para 1 and 2 Federal Constitutional Act \(Art 18 para 1 and 2 Federal Constitutional Act [B-VG\];_ the B-VG − the core constitutional document (BGBl (Federal Law Gazette) 1920/1) − has been modified more than a hundred times until today._). Further elements of a substantive understanding of the rule of law are the system of legal remedies and the effectiveness of the system of legal protection including the existence of independent courts as well as the principle of proportionality deriving from the interpretation of human rights such as the equality clause (Art 7 para 1 (Art 7 para 1 B-VG)._ |
I. General remarks
In a comparative law perspective (Wieser 2005: 85), the Austrian Constitution can be seen as a ”flexible constitution” (Gamper 2008: 96). This goes hand in hand with those concepts of constitutional law that qualify this level of law as a kind of a formal rule of the political process (“Spielregelverfassung”) (Walter et al. 2007: para 3 ss, 146). An extensive use of modifying and thereby fragmenting constitutional law, which describes the status of Austrian constitutional law exactly, challenges the role of constitutional law to give a stable framework for this process (Öhlinger 2005: 274 ss). A lot of so called “constitutional provisions”, which do not contain substantive constitutional questions, do in fact add numerous administrative details to the core documents of Austrian constitutional law. This practice of creating constitutional law became very common in Austria and led to more than 1.300 constitutional provisions in ordinary laws. As a result, it is common sense in the scientific community that this situation of constitutional law affects its functioning as a basic order of a society in a very intriguing manner (Eberhard / Lachmayer 2008: 113 ss).
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This confirms a two level perspective of Austrian constitutional law in which the basic principles of constitutional law are understood as super-constitutional law and – in a hierarchical perspective (Stufenbau) – are ranked higher than “conventional” constitutional law (Öhlinger 2009: para. 13 ss, 62 ss). Thus, constitutional law is divided into “ordinary” constitutional law and basic principles of constitutional law. This distinction between the two levels of constitutional law is legally justified by the different way of the creation of these two levels of constitutional law. The legislative process to enact ordinary constitutional law requires a two thirds consensus in both chambers of the Austrian parliament and the denotation of this specific Act or provision as constitutional law (Art 44 para 1 B-VG: “Constitutional laws or constitutional provisions contained in simple laws can be passed by the National Council only in the presence of at least half the members and by a two thirds majority of the votes cast; they shall be explicitly specified as such (‘constitutional law’, ‘constitutional provision’).”). The level of basic principles of the constitution can only be amended by a so called total revision (“Gesamtänderung”) of the Austrian Constitution. This total revision demands, additionally to the normal requirements of a legislative procedure of an ordinary constitutional law act, a referendum of the Austrian people (Art 44 para 3 B‑VG: “Any total revision of the Federal Constitution shall upon conclusion of the procedure pursuant to Art. 42 above but before its authentication by the Federal President be submitted to a referendum by the entire nation, whereas any partial revision requires this only if one third of the members of the National Council or the Federal Council so demands.”) (Öhlinger 2009: para. 64 s; Walter et al. 2007: para. 146).unmigrated-wiki-markup
The Rule of Law commonly is understood as such a basic principle of Austrian constitutional law (the other basic principles are the principles of democracy, the federal concept of the Austrian state, separation of powers, human rights and the presidential \ [non monarchic\] design of the Austrian government). These basic principles result from a systematic interpretation of the Austrian Constitution and cannot be derived from a single provision of it.
II. The formal dimension of the Rule of Law
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