Judicial review in Austria
Influenced by Hans Kelsen and a general local tradition of legal positivism, the statutory construction of the Austrian Constitutional Court relied mostly on grammatical interpretation from its beginnings in 1920 to the mid-1980s.
Much of the court's workload is due to – and many of its decisions are the product of – unique distinctivenesses of the legal and political framework it is operating in.
It also provides for judicial review not just of ordinances (German: Verordnungen) but also of individual-scope decisions of the Austrian executive branch – written findings and assessments (Bescheide) as well as face-to-face personal orders and instances of the use of physical force (Maßnahmen).
[2] Because Austria was the first country ever to adopt centralized judicial review – with the 1920 Kelsen constitution – the approach is sometimes also called the Austrian system.
[3] Because centralized judicial review has since spread to Germany, Italy, Spain, Portugal, and Belgium, some people call it the European system.
[citation needed] The general courts – civil and criminal chambers, essentially – are encouraged (and in fact required) to make sure that statutes they are about to apply have been enacted and promulgated in accordance with the constitution, and that ordinances they are about to apply have been issued in accordance with the constitution and with pertinent other legislation, primary or secondary.
The complaint has to argue that the complainant is being violated in their rights by the piece of legislation at issue, actually and not just potentially.
To prevent disruption, however, the court can set a grace period during which a piece of unconstitutional legislation still remains on the rolls and may still be applied.
[18] Since Austria cannot unilaterally rescind an agreement it has entered into under international law, the court cannot actually void any treaty.
[19] Judicial review of actions of the executive branch other than secondary legislation is performed by a special system of administrative courts.
Starting with the reforms of Maria Theresa and Joseph II, Austrian constitutional thinking gradually developed the principle that general court system and administration should not interfere with each other.
[28] Originally, keeping judges and bureaucrats at arm's length was a great step forward because the main practical consequence was judicial independence.
It also created the Imperial Court (Reichsgericht), a tribunal that would hear complaints about general violations of constitutional rights by the executive branch.
It was also increasingly seen as outdated and inadequate from a human rights perspective; European integration demanded an upgrade.
[33] A reform in 2014 added created eleven new administrative trial courts (Verwaltungsgerichte), one for each of the nine provinces and two for the national level.
All three incongruities have inspired significant volumes of legal scholarship over the years; they have also strongly influenced the court's actual decisions.
[44] Additional complications arise from the fact that different parts of Austria's constitutional law were written by authors from fundamentally different schools of legislative thought; the corpus is therefore very uneven in style.
Core parts of the corpus are unusually terse, practically guaranteeing that subtly different approaches will yield widely different results.
[47] Cisleithania had been a unitary state with some limited devolution of responsibility to regional administrations; the modern Republic of Austria mostly retains this structure.
[53] The apportionment of areas of competence between national and regional levels is internationally unique, highly complex, and badly outdated.
[54] The framework is immune to reform because, for all its faults, it represents a stable compromise between political camps with radically different visions regarding the Austrian government's basic structure.
[55] These issues create a large amount of legal theory and academic literature;[56] scholars are torn between two competing schools of thought on the subject.
Very early into the Second Republic, Social Democrats and People's Party reached an informal agreement regarding Constitutional Court nominations that prevented either camp from gaining a strong upper hand.
[60] From its beginning in 1920 to its elimination by the Austrofascist putsch in 1934, the Constitutional Court has leaned strongly towards grammatical interpretation (strikte Wortlautinterpretation), although with occasional elements of the historical approach.
