Verfassungsvergleichung und „gemeineuropäischer“ Verfassungsstaat

Abstract

Constitutional comparison plays an important role in the development of common standards of European constitutional law which goes hand in hand with a transnationalisation of constitutional law: On the one hand, the application of this method accelerates the convergence of national constitutions. On the other hand, a bottom-up comparison of national constitutions acts as effective counterbalance to top-down approaches of Europeanisation. Through the contextual references to the common constitutional heritage of the member states of the Council of Europe and the European Union respectively, a “least common denominator” of European constitutional law may be found. Serving as entrenched “underlying values”, these principles may apply in cases where European law seeks for legitimacy, in case of doubt or where an analogy is necessary.Compared to other national constitutional courts, the Austrian Constitutional Court is still reluctant to apply the comparative method. Whilst the Court is open to a judicial dialogue with the European Courts in Luxembourg and Strasbourg, an explicit comparison of national constitutions or jurisdictions is rarely drawn in judgments, and, if at all, not always clear as to its consequences. Nevertheless, it is with good reasons that the Constitutional Court holds constitutional comparison only significant in cases where a similar normative context is given.Much as may be expected from constitutional comparison in the ongoing process of European integration and globalisation, valuable as it is for the knowledge and enrichment of constitutional cultures, caution should be exercised if the method is applied “just for fashion” and without the subtlety that it deserves. Its improper use would neither meet the standards of sound legal methodology nor would it make the outcome of legal proceedings predictable.