INTRODUCTION:CONSTITUTIONAL JUSTICE IN AUSTRIA

The Austrian Constitution was enacted in 1920 and, regarding its process of origin, was mainly influenced by Hans Kelsen, who especially focused on the creation of a Constitutional Court (Verfassungsgerichtshof). The Constitutional Court is a centralized body that has the function of controlling the constitutionality of various acts of the state, including judicial review of legislation. The competences of the court have been continually extended over the past ninety years, which has substantially improved the access to constitutional justice. However, the Constitutional Court was designed as a kind of “negative legislator”; its function is to control and to declare legislative and administrative acts void when they are deemed to be unconstitutional or in breach of fundamental rights.

The developments of the past three decades clearly show that the Court is willing to become more active by using different possibilities to extend its competences toward taking a more active role in constitutional interpretation. This contribution shall analyze the different ways of transforming constitutional law through jurisdiction.

Since 1925, article 138, paragraph 2, of the Austrian Constitution has enabled the Austrian Constitutional Court to act as a “positive legislator.” Although the practical relevance of the provision is not very significant, it clearly gives positive powers to the court in a sensitive area: the division of competences between the Federation and the States (Länder). The provision reads as follows: “The Constitutional Court furthermore determines at the application of the Federal Government or a state Government whether a legislative or executive act is part of the competence of the Federation or the States.”