—Prof. Dr. Anna Gamper, Universität Innsbruck
Amidst the Corona crisis, constitutional jubilees may be expected to pass rather undetected. A centennial, however–which the Austrian Federal Constitution celebrates today–is a noteworthy event even in troubled times. It demonstrates the endurance of a constitution that did not only survive authoritarian and totalitarian regimes, but has so far also withstood the recent pandemic and other crises.
On 1 October 1920, the Constituent National Assembly of Austria passed the “Federal Constitutional Act” (Bundes-Verfassungsgesetz, B-VG)[1]. Being mainly drafted by Hans Kelsen as the leading legal expert, it had been negotiated by both the political parties and the Länder during the interim period that followed the end of the First World War, the fall of the Austro-Hungarian Empire and the proclamation of the new Republic of (then) German-Austria in 1918.[2] While it was not clear at that time whether the new state would be able to survive, its constitution was deemed a suitable compromise at least for the present. It consisted of 152 articles and lacked a preamble, as it does today. Primarily dealing with institutional issues, it did not include a bill of rights, but mainly transplanted fundamental rights, already established during the monarchy, into the new constitutional order. This changed considerably later, since the ECHR and almost all of its additional protocols were, uniquely in Europe, transformed into constitutional law; several other fundamental rights, of domestic origin, were also added over time. This is another unique characteristic of the Austrian Constitution: apart from the B-VG, as the core constitutional document, around 500 other constitutional components, embedded in various constitutional sources (eg, single constitutional laws, single constitutional provisions in ordinary laws, international treaties with constitutional status, etcetera), are in force today.
Except for the periods of Austro-fascism (1933/34-1938) and the Nazi regime (1938-1945), during which the B-VG was set aside illegally, it has remained in force. Having been considerably amended already in the 1920s, it was formally re-published in 1930 and re-enforced after the Second World War in 1945. Since 1930 it has been amended 128 times which is the probably highest number of amendments of a national constitution worldwide. It also seems to be the only constitution so far that underwent a specific COVID-19 amendment[3].
While the constitution does not include an “eternity clause”, it is nevertheless entrenched since ordinary constitutional amendments need a qualified quorum and majority in the National Council;[4] some amendments require more than that, including the so-called “total revision”[5] of the constitution which will happen if one of the leading constitutional principles–democracy, republicanism, federalism, rule of law, separation of powers and fundamental rights–is significantly amended or abolished. A “total revision” requires a referendum, which formally took place only once, before Austria acceded the EU in 1995. Still, there has been some discussion on a possible “hidden” total revision that happened through a series of amendments.
Some constitutional amendments, without causing a “total revision”, shaped the character of today’s B-VG considerably: the amendment of 1929[6], eg, strengthened the position of the Federal President in a way that became politically relevant during the governmental crisis of 2019, when Austria was troubled by a couple of hitherto unknown events, such as the dismissal of single ministers and a whole government. Many amendments concerned the federal system which is, on the whole, one of the most centralized in the world, and, though amended in a piecemeal way especially with regard to the allocation of powers, has never been reformed systematically. Importantly, however, a new type of administrative courts was introduced in 2014.[7] The B-VG of today also includes numerous constitutional aims and values, none of which had existed in 1920.
While the B-VG in general has had little influence on other constitutions–except for the Constitution of Liechtenstein that was enacted one year after the B-VG[8]–there is one remarkable institution that has become a constitutional transplant around the globe: this is the “invention” of a full-fledged specialised constitutional court, which was, on the rudimentary basis of some previous forerunner courts, chiefly designed by Kelsen. The Austrian Constitutional Court is a strong-form review court with broad powers that have been considerably increased over the century. It is also an active court that, under the influence of the ECtHR’s interpretation of Convention rights, interprets fundamental rights dynamically, even though it shows more restraint with regard to other constitutional matters. In recent years, some judgments have become known internationally, for instance, the nullification of the presidential election in 2016,[9] the repeal of the same-sex-marriage-ban[10] or the recognition of a “third gender”[11]. The Constitutional Court also remains fully operative during the Corona crisis: it has already decided on numerous applications against lockdown measures taken during the pandemic, striking down several provisions that had violated fundamental rights without a proper legal basis.[12]
The effectiveness of constitutional review, which proves the Kelsenian idea of a “guardian of the constitution”[13], is one of the great achievements of the Austrian constitutional culture. It owes much to the moderating effect of the separation of powers which is one of the chief designs of the early constitution. A wealth of fundamental rights, a strong entrenchment of the rule of law and a remarkable degree of co-operative federalism are further ingredients of a hyper-amended and -fragmented, but altogether successful constitution. It may thus be expected not only to endure the present crisis, but hopefully also the next centennial.
Suggested Citation: Anna Gamper, The Centennial of the Austrian Federal Constitution, Int’l J. Const. L. Blog, Oct. 1, 2020, at: http://www.iconnectblog.com/2020/09/the-centennial-of-the-austrian-federal-constitution
[1] BGBl 1920/1.
[2] See also Gamper, 100 Years of Austrian Republicanism – 100 Years of Austrian Federalism?, International Journal of Constitutional Law Blog, 30.10.2018, at: http://www.iconnectblog.com/2018/10/100-years-of-austrian-republicanism-100-years-of-austrian-federalism.
[3] BGBl I 2020/24.
[4] Art 44 para 1 B-VG.
[5] Art 44 para 3 B-VG.
[6] BGBl 1929/392.
[7] BGBl I 2012/51.
[8] Gamper, Constitutional Borrowing from Austria? Einflüsse des B-VG auf ausländische Verfassungen, ZÖR 75 (2020), 99 et seq.
[9] VfSlg 20.071/2016.
[10] VfSlg 20.225/2017.
[11] VfSlg 20.258/2018.
[12] VfGH 14.7.2020, G 202/2020 et al; VfGH 14.7.2020, V 411/2020-17; VfGH 14.7.2020, V 363/2020-25.
[13] Kelsen, Wer soll der Hüter der Verfassung sein? (1931).
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