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The History of the Constitutional Court: An
Overview
1867 to 1918 – Precursors in the monarchy: Imperial Court & State Court
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The Imperial Court (1867-1919) of the Constitutional Monarchy was a precursor of the
Constitutional Court. The Imperial Court owes its importance to a number of institutional
peculiarities that still exist today and distinguish the Austrian Constitutional Court from other
constitutional courts. It was established within the framework of the so-called December
Constitution in 1867. The Court’s powers were limited to decisions in certain conflicts of
jurisdiction, certain pecuniary claims against and between territorial authorities, and complaints
of citizens regarding violations of their political rights. In 1919, these powers were assigned to
the German-Austrian Constitutional Court. Subsequently, they were transferred to the
Constitutional Court of the Republic of Austria in 1920, which was furnished with additional
powers. The president of the Imperial Court and his deputy were appointed by the Emperor at his
sole discretion, whereas the twelve members and four substitute members were chosen from
slates of three candidates each proposed in equal parts by the two chambers of the Imperial
Council (Reichsrat). No specific qualifications were required as a prerequisite for appointment.
Provisions on incompatibility were non-existent. The members of the Imperial Court were
appointed for life. The Imperial Court had so-called permanent reporters, an institution to be
taken over later by the Constitutional Court, who were elected by the Court from among its
members for a period of three years. The president of the Imperial Court did not have the right to
vote, except in case of a tie.
Also in 1867, a State Court was established for the purpose of deciding cases of ministerial
impeachment. This court was composed of twenty-four independent citizens knowledgeable in
matters of the law, who were elected in equal parts by the Abgeordnetenhaus and the Herrenhaus
for a period of six years. The State Court was never called upon to pronounce on a case.
Incompatibility provisions were first introduced through the 1925 amendment to the
Constitution. Moreover, the powers of the Constitutional Court were modified. Upon
application by the federal government or a provincial government, the Court was to decide
whether the adoption or enforcement of a law was within of the jurisdiction of the federal
government or a provincial government (Kompetenzfeststellung / establishment of jurisdiction).
The 1929 amendment to the Constitution led to a more extensive reconfiguration of the
constitutional order. The primary goal of the amendment was to strengthen the position of the
federal president as a counterweight to the parliament. In an effort to “depoliticize” the
Constitutional Court, modalities for the appointment of members and substitute members of the
Court were introduced which, to a large extent, still apply today. The amendment provided for
the members of the Court to be appointed by the federal president, with the right to propose
members being shared between the federal government, on the one hand, and the two chambers
of the parliament, on the other hand. The number of members, besides the president and a vice-
president, was limited to twelve regular members and six substitute members, all of whom had to
be qualified in law. The acting members were recalled and replaced by newly appointed
members. The existing rules on incompatibility were supplemented by a provision barring
employees or office-holders of political parties from membership of the Constitutional Court.
Moreover, an age limit of 70 years was introduced. The amendment resulted in a further
modification of the powers of the Constitutional Court: from now on, the Supreme Court and the
Administrative Court were included among the institutions entitled to file an application for the
review of laws and regulations.
However, this amendment to the Constitution was not able to ease the political tension prevailing
in Austria at that time. In the wake of a controversy over a vote taken in the National Council on
4 March 1933, the three speakers of the National Council stepped down all at once. The federal
government, stating that the National Council had opted for its “self-elimination”, prevented it
from reconvening and from then on ruled through regulations on the basis of the 1917 War
Powers Act – an authoritarian regime that excluded the legislative bodies. Over 100 petitions for
the review of such regulations were submitted to the Constitutional Court. However, a
government regulation – also based on the War Powers Act – prevented the Court from taking
decisions in its regular composition. Thus, the Constitutional Court was paralyzed (“elimination
of the Constitutional Court”).
Through the 1964 amendment to the Constitution, the Court was assigned the power to review
the lawfulness of treaties.
Amendments to the Constitution adopted in 1981 and 1984 were intended to ease the burden on
the Constitutional Court. Under certain conditions, the Court was allowed to refuse to deal with
complaints relating to actions taken by the public administration pursuant to Article 144 of the
Constitution. In 1981, the Ombuds Board was given the right to challenge regulations before the
Constitutional Court.
Since 1991, the Independent Administrative Senates created in 1988 have been empowered to
file for a review of legal norms and regulations (Normenprüfung). At the same time, the
Constitutional Court ceased to exercise its power to rule on direct acts of enforcement by
administrative authorities. Decisions of this type were henceforth taken by the Independent
Administrative Senates, with the Constitutional Court only called upon to review such
decisions. Furthermore, one third of the members of the Federal Council were granted the right
to challenge federal laws.
The system of proposing candidates for the position of judges at the Constitutional Court was
modified through an amendment to the Constitution adopted in 1994. The obligation of the
National Council and the Federal Council to propose slates of three candidates each to the
federal president was abolished. Since then, both entities, as well as the federal government, have
had the right to propose only one candidate each.
Through the constitutional amendment adopted in 1997, the Federal Asylum Senate was
established as an additional independent administrative senate with special jurisdiction. In 2002,
the Federal Procurement Office (Bundesvergabeamt) was granted the right to contest laws and
regulations before the Court.
As of 1 July 2008, the Constitutional Court was assigned the power to decide on petitions
contesting decisions taken by the Asylum Court (which replaced the Independent Asylum Senate
as an appellate court) on grounds of violation of constitutionally guaranteed rights or application
of (largely) unconstitutional laws or unlawful regulations.
The 2012 amendment to the Act on Administrative Justice, effective as of 1 January 2014,
established a new regime of effective judicial protection in matters relating to the public
administration. The system of administrative appeals, i.e. the possibility of contesting
administrative decisions before a higher administrative authority, was abolished (except in
matters within the sphere of responsibility of a local authority). The appellate authorities,
including the Independent Administrative Senates in the Austrian provinces and the Federal
Procurement Office, were replaced by a total of eleven administrative courts of first instance: the
Federal Administrative Court as the successor to the Asylum Court, the Federal Finance Court,
and one provincial administrative court for each province. Applications for review of the rulings
and decisions rendered by these courts can be filed with the Administrative Court and complaints
can be lodged with the Constitutional Court.
Without any doubt, the restructuring of administrative justice was the most substantive
administrative reform since 1925.
Another innovation entered into force on 1 January 2015: the party’s request for legal review.
This legal remedy enables any party to proceedings before a court of (criminal or civil) law, on
the occasion of an appeal against the first-instance decision, to file with the Constitutional Court
for the repeal of the legal provisions applied in the respective proceedings. Moreover, as of now,
all courts of law, including courts of first instance, have the right to challenge the
constitutionality of laws before the Constitutional Court.