Austrian Constitutional Court Research Articles

Assisted Reproduction in the Shadow of the Past

In a recent decision, the Austrian Constitutional Court held that excluding women in stable same-sex relationships from access to sperm donation violates the right to respect of private and family life as protected by the European Convention of Human Rights. An undifferentiated limitation of all forms of medically assisted reproduction to heterosexual couples must be justified by ‘particularly convincing and weighty reasons’, as required by ECtHR case law, which did not exist in the present case. Whereas this judgment is remarkable in condemning discrimination against a lesbian couple – for once without a nudge by Strasbourg – its reach is rather limited; importantly, it does not challenge a wide range of problematic biologist assumptions underlying the Austrian Reproductive Medicine Act of 1992.

Ruling of the Supreme Administrative Court regarding the application of the CFREU

Based upon a violation of Art 47 of the Charter of Fundamental Rights of the European Union (hereinafter: the Charter) the Supreme Administrative Court (Verwaltungsgerichtshof) repealed a decision of the Independent Tax Panel which had denied the applicant an oral hearing. It thereby ruled for the first time that by the law of the European Union the Supreme Administrative Court itself is obligated to implement the Charter, even though the Austrian Constitutional Court in an earlier judgment had qualified the rights of the Charter to be equivalent to constitutionally guaranteed rights.

Article 47 CFREU: scope of application and accessoriness

In this case the Supreme Court examined the scope of application of the Charter of Fundamental Rights of the European Union (hereinafter: CFREU) and pointed out that Art 47 CFREU is accessory and can only be relied upon in relation to another substantive right protected by the European Union Law. It dismissed the argument of an electricity company who claimed a violation of Art 47 CFREU because the effect of a repealing decision of the Austrian Constitutional Court had not been extended to its case, although it had already filed an extrajudicial remedy before the date of the repeal. The Supreme Court further declared a decision of the ECJ concerning the declaration of invalidity of a Union act not transferrable to the present case

Same-Sex Partnership and right to a name

Based on an appeal against a notification filed with the Austrian Constitutional Court by a same-sex partner applying for a change of his second name the Court eventually found a provision concerning the change of name contrary to the principle of equality: It is discriminatory to entitle married couples to change their family names also after their marriage whereas same-sex couples may apply for a change of their last names only together with the registration of their partnership.

Comprehensive prohibition of panhandling in public areas unconstitutional

The Austrian Constitutional Court ruled that a comprehensive prohibition of panhandling in public areas violates the equal protection clause and the freedom of expression. In contrast, there is no violation of the right to respect for private and family life and the right to practice every gainful activity. The Constitutional Court certainly makes an inspiring contribution to discussions concerning the scope of protection of several fundamental rights.

Austrian Constitutional Court Uses Charter of Fundamental Rights of the European Union as Standard of Review: Effects on Union Law

Austrian Constitutional Court Uses Charter of Fundamental Rights of the European Union as Standard of Review: Effects on Union Law

Focus: The Charter of Fundamental Rights of the European Union in the Austrian Constitutional Court’s case law

Focus: The Charter of Fundamental Rights of the European Union in the Austrian Constitutional Court’s case law

Can the constitutionality of omitting a public hearing in the Austrian Constitutional Court’s CFREU decision legitimately be based on the jurisdiction on Art 6 ECHR?

Can the constitutionality of omitting a public hearing in the Austrian Constitutional Court’s CFREU decision legitimately be based on the jurisdiction on Art 6 ECHR?

Der Grundrechtseingriff bei der Versammlungs- und Vereinigungsfreiheit

The survey analyses the case-law of the Austrian Constitutional Court relating to the freedom of assembly and association and arrives at the conclusion that the Constitutional Court has tacitly detached itself from the view that these fundamental rights contain the proviso in favour of the legislator to shape the right.

Verfassungsgerichtsbarkeit nach Lissabon

On 14 March 2012 the Austrian Constitutional Court has stated in a spectacular decision that the rights guaranteed by the EU Charter of Fundamental Rights would from now on serve as a yardstick for its judicial review – unlike the rest of EU law. The Court based its decision on the principle of equivalence of EU law remedies to national remedies; however, it seems doubtful whether this principle forms a suitable basis. This comment examines the arguments of the Constitutional Court and outlines the decision's consequences for the Austrian system of legal protection.

Hans Kelsen and the Austrian Constitutional Court (1918-1929)

Este artículo examina las contribuciones de Hans Kelsen al establecimiento del primer Tribunal Constitucional en Austria, analizando las diferencias centrales entre el modelo kelseniano de tribunal constitucional y el modelo de su maestro alemán, el jurista Georg Jellinek, al tiempo en el que se enfoca en el trasfondo históricopolítico especifico de Austria que ejerció un influjo en la configuración e incluso en el colapso del Tribunal Constitucional. De manera distinta a la mayoría de trabajos dedicados a esta cuestión, este artículo le presta particular atención a la dimensión histórico-política tras los esfuerzos de Kelsen para crear un sistema serio de defensa jurídica de la Constitución Austríaca. En este sentido, el modelo kelseniano de tribunal constitucional se analiza en referencia al problema de proteger a la joven democracia austríaca, que surgió de las cenizas del Imperio Habsburgo, en contra de sus numerosos oponentes. Este problema se ubica en el centro de los trabajos de Kelsen sobre la democracia publicados en la década de 1920.

Aktuelle Probleme des Namensrechts

The law relating to the use of name was originally dominated by the patriarchal principle, so that only the name of the father was passed on. A married woman generally had to accept the name of her husband. In the seventies the patriarchal system was replaced by the principle of partnership, which also had consequences in the law of names. From now on it was possible to choose the name of the woman as common surname. First, only women were entitled to use double names; due to a decision by the Austrian Constitutional Court in 1985, this right was then formulated gender-neutral. After a historical outline of the law of names a detailed analysis of the current legal situation is provided. This article is not only focused on the law of names in connection with marriage and divorce, but also concerning registered partnerships. Furthermore, the author takes the law of names concerning children into account. Finally, proposals for reform are discussed.

Die Lösung des Kärntner Ortstafelstreites

Following the Austrian Constitutional Court’s ruling stipulating directives for the erection of bilingual place name signs in Carinthia, a process which had been slowed down by obstructionist policies conducted by Carinthian politicians for years, 2011 saw the drafting of a widely accepted agreement designed to solve the dispute. The Austrian Parliament has safeguarded this agreement by amending its law on national minorities (“Volksgruppengesetz”) with relevant constitutional directives. The place name sign dispute in Carinthia may thus be fully solved politically and judicially.

A Kelsenian Model of Constitutional Adjudication - The Austrian Constitutional Court

For more than 100 years the “American system” of adjudication mastered by one Supreme Court vested also and in particular with the power to review administrative as well as legislative acts enjoyed the virtual monopoly to serve as the role-model of Constitutional review. When the Austrian Constitution was enacted in 1920, however, it should be supplemented by an “Austrian system” designed by Hans Kelsen; creating a specialized body to review the constitutionality of legislative acts – the first Constitutional Court. This article provides an introduction the Court’s organization and proceedings.

Bilingual topographical signs of different sizes are unconstitutional

On 24 June 2010, the Austrian Constitutional Court rendered its most recent decision in a series on bilingual topographical signs in the Austrian province of Carinthia in V 9/10-9. The Court held that the difference in size between the German and Slovenian topographical signs for Bleiburg-Pliburg, Drvesa vas- Ebersdorf and Žvabek were illegal and unconstitutional. Recall that the Austrian Constitutional Court had already held, on 13 December 2006, that the difference in size between bilingual topographical signs in German and in Slovenian in those places was illegal and unconstitutional and that this had to be resolved. However, this decision was put aside and bilingual topographical signs of different sizes remained in place.

Der Kärntner Ortstafelstreit

The constitutionally granted rights of national minorities in Austria as enshrined in Article 7 of the State Treaty of Vienna also include bilingual topographical descriptions and inscriptions. The jurisdiction of the Austrian Constitutional Court regarding the situation in Carinthia clarified the prerequisites for the application of Article 7 in respect of place name signs. The Court, inter alia, underlined that both languages (German as well as Slovenian) have to be used in a non-discriminatory way. The Austrian Federal Government and the Carinthian Government are bound by the Court's legal opinion as expressed in its rulings even though they may not share its view. The article shows the various methods used in preventing the enforcement of the Court's decisions and shows the dangers of a selective enforcement of decisions of the Constitutional Court, depending on its acceptance in various segments of society.

Die Rechtsprechung des Verfassungsgerichtshofes zu den Zivilverfahrensgesetzen

The essay describes the case law of the Austrian Constitutional Court concerning Civil Procedure Rules and gives numerous examples of constitutional questions connected with proceedings of civil law.

Das Recht der Staatsverträge nach der Verfassungsbereinigung

This paper analyses the recent amendment of Art 50 of the Federal Constitution (BGBl I 2/2008), which bears some substantial innovations concerning the negotiations of international treaties. The answers to the previous structural problems in this part of the Federal Constitution have induced a certain clearing of the widespread Austrian constitutional law. Furthermore the capacity to act in the area of international law was strengthened. The revision introduces a general authorisation to desist from parliamentary approval when an international treaty is revised in a simplified procedure. For the first time the limitations to the integration of primary legislation of the European Union are explicitly embodied in the Federal Constitution. The Austrian Constitutional Court ensures their abidance.

The Right to a Fair Trial in the Case-Law of the Austrian Constitutional Court

The Right to a Fair Trial in the Case-Law of the Austrian Constitutional Court

Some aspects of the case law of the Austrian Constitutional Court on Art. 6 ECHR

Some aspects of the case law of the Austrian Constitutional Court on Art. 6 ECHR