Austrian Federal Constitution Research Articles

Austrian Language Policy on the rights to mother tongue education

Austrian Language Policy on the rights to mother tongue education The study focuses on Austria’s key language policies and legislations that have an impact on German as a state language as well as minority languages. The Federal Constitution of Austria contains the most important regulations protecting German and minority languages. The first three articles of Austria's Constitution are critical legislations for the protection of state and minority languages. The Austrian Federal Constitution requires ethnic communities to be protected and preserved. The study then goes on to explore the primary organisations and administrations responsible for the evolution of today's Austrian language policy. The system in Austria for safeguarding and promoting minority languages is typically well-developed. Austria has been an active participant in European programmes aimed at the protection of minorities. Ratification of the European Charter for Regional and Minority Languages is a critical step towards the European Union's integration. Austria signed and ratified the Charter in 1992 and 2001, respectively. Slovenians, Croats, Hungarians, Czechs, Slovaks, and Roma are the six indigenous ethnic minorities recognized in Austria. Austria issued its fifth evaluation report in 2023. This report was reviewed by the researcher using critical discursive analysis. Based on the facts gathered, Austria is a country that should be emulated in terms of minority safeguarding and protection; nonetheless, changes are needed in several areas. Keywords: language policy, language policy in education, minorities, minority rights, minority rights in Austria, Austrian language policy

Verfassungsrechtliche Grundlagen der „Völkerrechtsfreundlichkeit“ – Österreich

Austrian constitutional law theory is slowly but steadily warming up to the concept of “Völkerrechtsfreundlichkeit” (“friendliness towards international law”). Due to its largely technical and unemotional formulations, the Austrian Federal Constitution nevertheless blocks elaborated theories based on the constitutional text. However, some elements of “Völkerrechtsfreundlichkeit” can be filtered out indeed, each of which are significant in their own right but they do not reveal any signs of a coherent and verifiable concept. This article introduces a number of relevant legal rules, including the generally recognised rules of international law, the handling of violations of international law, and the constitutional establishment of treaties – especially in their human rights dimension. The analysis concludes that the Austrian Federal Constitution does not harbour an empathetic, but rather an unpretentious variant of the concept of “Völkerrechtsfreundlichkeit”.

The Untouchables

According to the current legal situation, the legal protection officers provided for in the Austrian legal system cannot be dismissed due to misconduct in office. The article first shows whether or which options for dismissing these state functionaries are permissible under Austrian constitutional law. In the following, going beyond this specific case, it is analyzed whether the Austrian federal constitution allows state officials to be given a legally inviolable position as a whole.

Structural Considerations Regarding the Boundaries of a Total Revision of the Austrian Federal Constitution

Structural Considerations Regarding the Boundaries of a Total Revision of the Austrian Federal Constitution

Landesbericht Österreich: Unmittelbare Anwendbarkeit von völkerrechtlichen Verträgen und Völkergewohnheitsrecht

This article examines the question to what extent the provisions of the Austrian Federal Constitution on the direct applicability of international treaties on the one hand and customary international law on the other can be regarded as “open” (or “friendly”) towards public international law. The question can, in principle, be answered in the affirmative for both constellations, even if direct applicability is of greater practical importance for international treaty law. On closer examination, the specific Austrian instrument of the “reservation of (statutory) implementation” for international treaties also proves to be an instrument that is potentially “friendly” to international law. Consequently, it can be concluded that, with regard to the direct applicability of international law, the Austrian constitution is “relatively” open (or “friendly”) towards public international law.

Historické souvislosti vzniku rakouské ústavy 1920

The Austrian Federal Constitution, adopted in October 1, 1920, was the result of long debates and political compromise between the Christian Socialists and the Social Democrats. It enshrined a system of parliamentary democracy with standard triple division of power into legislative, executive and judicial. Legislative power was exercised at the federal level by two formally independent bodies: the National Council and the Federal Council. Executive power consisted of government based on the confidence of the National Council and the Federal President. From view of political science, it was a purely parliamentary system. The 1929 amendment of constitution brought Austria closer to the German political system, bringing about significant strengthening of the powers of head of state. Austria's constitutional definition was undoubtedly democratic, but political elites chose the path of gradual curtailment of political pluralism due to growing difficulties under the influence of the Great Depression. Although the Austrian constitution has long been criticized for being overly complex and fragmented, it is today one of the oldest written European legal norms.

A Constitution without Theory and without “Image-of-Mankind” Conceived of in the Context of Intensive Theoretical Debate

Among the many genres of constitutional literature that have established themselves after WW2 there are the writings reflecting on the “image of mankind” to be found in – or enshrined in or theorised by – the Constitution. Under such circumstances it may appear plausible to ask oneself as to which kind of such image is to be found in the Austrian Federal Constitution, enacted a 100 years ago in its original framing. This paper aims at showing that theories about “image of mankind-theories” in constitutions are flawed and their use in legal scholarship therefore highly problematic. In fact, these conceptions were introduced in the very particular setting of the immediate aftermath of the brake-down of the Nazi-regime in Germany and were aiming at providing a moral added-value to the new Constitution, which was not only conceived of as an antithesis to the former regime, but as a means to cancel it retrospectively in history. These conceptions were extracted from an inconsistent mixture of philosophical theories elaborated during the pre-war period, ie neo-kantian (<italic>Rickert</italic>) and anti-kantian (<italic>Scheeler</italic>) philosophies of value as well as philosophical anthropology (<italic>Plessner</italic>, <italic>Scheeler</italic>, <italic>Gehlen</italic>) and it was considered that the reference to “Human dignity” in Article 1 of the Basic Law had embedded these conceptions in the Constitution and that other constitutions could be distinguished from the German one mainly by the kind of “image of mankind” they are purporting to enshrine. The point is that Constitutions are normative settings and thus unable to enshrine any theory whatsoever, even though they are obviously inspired by political and moral theories, but inspiration is not identity and requires at any event a specific transformation into legal norms under the specific constraints and strictures required by the construction of a legal system. Neither the German, nor the Austrian, nor any constitution has an “image-of-mankind”. This admitted, the interesting problem raised by such conceptions is another one: what do constitution-makers <italic>presuppose</italic> about understanding and applying legal norms, when framing a legal setting? The Austrian case is indeed highly relevant in this respect as it applies presuppositions about cognitive abilities of norm-addressees gained through theories of interpretation and resulting in a conception which may be termed <italic>prospective minimalism</italic>.

The Czechoslovak Constitution 1920 and the Austrian Federal Constitutional Law 1920 – Outline of a Comparison

A number of separate states emerged on the territory of the Austro-Hungarian monarchy after 1918. They had to give themselves new constitutions. This article compares the Constitution of the Czechoslovak Republic of 1920 with the Austrian Federal Constitution of 1920. Both constitutions drew – to varying degrees – from their common heritage (the December Constitution of 1867). This is already evident formally in that it was not possible to create a uniform, closed constitutional document. In many areas – such as fundamental rights or the organization of the judiciary – there are also similarities in content. With the establishment of specialized constitutional courts, both states succeeded in creating a significant innovation, which, however, was successful only in Austria. Both states created a two-chamber parliament, although the respective second chamber had a different function. In Czechoslovakia, the system of government was strongly oriented towards the President of the Republic, while there was parliamentary supremacy in Austria.

The Federal Constitution as a System of Values – A Farewell to the Myth of a Value-Neutral Game Rules Constitution?

Due to the process of the European integration and its goals, the Austrian Federal Constitution too in fundamental rights and structural principles contains values. Therefore, we may not merely interpret the Constitution as a formal framework for the political process. Furthermore, as a constitution of a democracy under the rule of law it fulfills values that are necessarily connected with these structures like security of law, freedom of opinion, minority rights, tolerance. We cannot presuppose an order of values free from contradictions, however, but have to develop it based on a rational legal interpretation.

Imperial Legacy in the Austrian Federal Constitution

On October 30th 1918 a new state “Deutschosterreich” (“German-Austria”) originated in a legally revolutionary way. Roughly two years later the new state, by then called Republic of Austria, enacted its definite constitution. This article examines how parts of the old constitution of the Habsburg monarchy persisted in the republic and how structures of the old constitution influenced the new one. Formally, only the fundamental rights were transferred from the monarchic December Constitution of 1867 to the new republican constitution. However, the organization of the new republic was influenced by the traditions of old Austria in many respects, eg the division in federal states, the parliamentary proceedings or the constitutional and administrative jurisdiction.

The Hard Core of Article 44 § 3 B-VG, Does it Exist?

Article 44 § 3 B-VG distinguishes between a total and a partial revision of the Austrian federal constitution. The question arises whether a total revision may change Article 44 § 3 B-VG in such a way that it is not anymore applicable to its own production. The question is addressed within the framework of a thought experiment which leads to the conclusion, that there is a hard core of Article 44 § 3 B-VG which cannot be changed in such a self-referential manner.

Das Recht des „öffentlichen Dienstes“ - Grundlagen und neuere Entwicklungen in rechtsvergleichender Perspektive. Die österreichische Sicht

This paper is based upon a lecture held by the author at the discussion group “Administration” at the annual conference of the Association of German University Teachers of Constitutional Law in Saarbruecken in 2017. The first part covers the constitutional basis of public service in Austria. The relevant provisions deal with the distribution of competences, the exercise of authority over civil servants, the personnel responsible for public administration and the duty to obey directives given by superior administrative bodies. The second part reveals the impact of European Union law on public service in Austria. The focus is on the freedom of movement of workers (Article 45 para 4 TFEU) and the prohibition of age discrimination laid down in secondary European legislation as interpreted by the European Court of Justice. After a presentation of the dual concept of public sector employment in Austria (employment under public law or contract law), the paper analyses in its third part the question to what extent and for what purpose the Austrian Federal Constitution does require endowing civil servants with formal public law status. In addition, the study deals with the effects of the extensive outsourcing of public tasks and the transfer of the personnel entrusted with these tasks to outsourced legal entities. Finally, the article reconsiders the right of Austrian civil servants to strike. The recent case law of the European Court of Human Rights regarding Article 11 of the European Convention on Human Rights indicates that also civil servants are entitled to strike in principle.

Verwaltungsgerichte, Verwaltungstribunale und Verwaltungssenate

Separation of Powers is one of the leading principles of the Austrian Federal Constitution. It is considered to have been developed by Montesquieu. A closer examination shows, however, that his ideas differed from the principles which were written into the Austrian constitutions of the 19th and 20th centuries. In particular, the sphere of administration was extended considerably at the cost of the sphere of the judiciary. The introduction of administrative jurisdiction in Austria, which took place in 1876, did not lead to significant changes in this respect. However, the constitutional amendment of 2012 modified the relation between the spheres of administration and the judiciary, so that one can argue that the boundary between these two powers is now situated roughly at the position where Montesquieu would have located it.

Strengthening the Judicial Review System in Austria

A reform of the Austrian Federal Constitution intends to close a gap in individual legal protection in the domestic judicial review system. Starting with 1 January 2015 a new remedy will provide parties of civil and criminal proceedings with the possibility of filing a complaint with the Constitutional Court challenging the constitutionality of an applied statute or the legality of an applied administrative ordinance. The application of a party for judicial review is only admissible after a ruling by the civil or criminal trial court in connection with an appeal against the court’s ruling. Planned amendments to procedural laws intend to exclude various types of proceedings from the new remedy. Both these aspects are seen critically in terms of the effectiveness of the new remedy and the individual legal protection.

Soziale Grundrechtsgehalte im Lichte der grundrechtlichen Eingriffsdogmatik

To define social rights appears to be difficult because of a very unclear terminology that lacks solid premises. Given the fact that the Austrian Federal Constitution does not contain any explicit social rights or a Social State Principle, the contribution seeks to make visible the social contents of traditional liberty rights. This aspect is exemplified by the so-called "Eingriffsdogmatik" (ie all scientific research activities focusing on encroachment of human rights), which is based on a traditional human rights understanding. Therefore, for the moment we have to seek a social rights understanding that is in close conjunction with a weighing of interests and with a view to the constitutional principle of equality as well as the right to property is able to implement a social rights based element. As a result and given this conjunction, the "Eingriffsdogmatik" applicable to the above-mentioned rights would also – in principle – apply to social rights. Nevertheless, the creation of explicit social rights remains an important both political and legal project.

The European Court of Justice, a guardian (‘Hüter’) of the Republican Principle of the Austrian Federal Constitution? – Case Note on C-208/09, Sayn-Wittgenstein

The European Court of Justice, a guardian (‘Hüter’) of the Republican Principle of the Austrian Federal Constitution? – Case Note on C-208/09, Sayn-Wittgenstein

Introduction to the Study of the Law of the Austrian Federal Constitution

Introduction to the Study of the Law of the Austrian Federal Constitution

The Constitutional Court of the Republic of Austria 1918–1920

Abstract Constitutional review was the most original idea stemming from the Austrian Federal Constitution of 1920. It is argued that the politician Karl Renner gave birth to the idea of a constitutional court. Hans Kelsen played the predominant role in the drafting of constitutional provisions. The new Constitutional Court provided for a centralized system of review, with an eye to a number of politically important issues. Owing to the pressure that stemmed from various discussions between and among the politicians of the national state and the Länder, Kelsen was obliged to depart from the German model of the federal state and to develop in its place a new theory.

The Genesis of the Austrian Model of Constitutional Review of Legislation

Abstract The European model of the constitutional review of legislation, characterized by the concentration of the constitutional review power in a single constitutional court, had its origin in the Austrian Federal Constitution of 1920. This is all the more remarkable when one considers that this Constitution established at the same time a parliamentary system of government in a fairly radical form. As the author explains, this “invention” of a constitutional court is attributable to two factors. One factor is the federal aspect. The Court was conceived by the framers of the Austrian Federal Constitution of 1920 as an umpire between federal legislation and the legislation of the states or Länder. In this respect it was meant as a substitute for the principle of the priority of federal law over state or Land law. This is manifest in the initial draft of the Constitution, where actions on questions of the constitutionality of legislation could only be brought by the Federal government (against the legislation of one or another of the states or Länder) and by the State or Land governments (against federal legislation). Right from the beginning, however, the Court could examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court that triggered the development of constitutional review. Its exercise gradually transformed the Court into a guardian of the Constitution as a whole, in particular, the fundamental rights of citizens. The author traces this development in the context of the concept of state and law that prevailed in the late nineteenth and early twentieth century. This concept included specific restrictions on constitutional review. On the basis of a different understanding of the functions of a constitution, the Court gave up these restrictions and followed the examples of the European Court of Human Rights, the German Constitutional Court and—indirectly—the American Supreme Court.

Homogeneity and Democracy in Austrian Federalism: The Constitutional Court's Ruling on Direct Democracy in Vorarlberg

This article seeks to analyze how homogeneity between the federation and the constituent Lander is provided by the Austrian federal Constitution in general. Focus is then put on a recent judgment of the Austrian Constitutional Court, which has been one of the most outstanding cases of the Court's “homogeneity jurisdiction.” The Court held a provision of a Land constitution to be in breach of the federal Constitution and therefore repealed it. The reason given was that the provision, which had obliged the Land parliament to pass a law if this was demanded by a people's petition and supported by the Land people in a referendum, endangered the system of representative democracy as provided by the federal Constitution. This narrow understanding of democratic homogeneity and the negligence of the principle of federalism are critically viewed in the article. Copyright 2003, Oxford University Press.