Art 145 B-VG, die verdrängte Kompetenz

Abstract

„Art 145 of the Austrian constitution (Bundes-Verfassungsgesetz; B-VG) states that the Constitutional Court is competent to decide on violations of international law according to a special federal act. This special act still being missing the Court itself as well as Austrian jurisprudence unanimously have concluded that the said violations currently cannot be brought before the Court.This contribution aims to show that this position is untenable, referring on the one hand to the (at least in private law) well-known difference between a mere empowerment and a binding mandate, on the other hand to a decision of the Constitutional Court itself (official collection no 17.733) where the opinion had been expressed that an administrative authority could not refrain from compliance with international obligations only because specifying national legislation was lacking. On this basis several possibilities to operate this provision – ranging from a limited role in applying international criminal law to relevance in all sorts of individual cases, with special importance in extradition and asylum matters and in the famous question of topographic inscriptions in minority languages – are discussed. The author also hints to the fact that it is not necessary to secure compliance of national legislation with international law by Art 145 B-VG, there existing an alternative already presented in this journal more than ten years ago (ZÖR 1996 [50], 161).”