1. GENERAL

The fundamental principles of the Constitution determine the basic structure, organisation and system of values of the state. Some of these are expressly set out in the Federal Constitutional Act (B-VG) (e.g. Article 1 of the B-VG, which states that Austria is a democratic republic), whilst others are derived through interpretation. These fundamental principles can be understood as the cornerstones of the state.

In total, six fundamental principles (also known as the „constitutional principles“) can be identified:

a. the federal principle;
b. the democratic principle;
c. the republican principle;
d. the principle of the rule of law;
e. the principle of the separation of powers;
f. the liberal principle.

Owing to their fundamental importance, these basic principles enjoy special constitutional protection. Pursuant to Article 44(3) of the Federal Constitutional Law (B-VG), the following applies:

„Any comprehensive amendment to the Federal Constitution … must … be put to a referendum of the entire Swiss electorate“.

A comprehensive amendment to the Federal Constitution therefore requires not only a two-thirds majority of members of the National Council and the Federal Council (which is required in any case for any amendment to a constitutional law), but also the approval of the people by way of a referendum. This is understandable insofar as interventions in the fundamental structures of the state require special democratic legitimacy. If the foundations of the state order are altered, the consent of the population must be sought.

It can sometimes be difficult to determine in individual cases whether a comprehensive amendment to the Federal Constitution has taken place. However, legal scholarship generally assumes that such a comprehensive amendment has occurred if one of the fundamental principles is to be substantially altered or repealed in its essential nature, or if a new fundamental principle is to be introduced.

These fundamental principles therefore – although they too are norms of constitutional rank – take precedence over „ordinary“ constitutional laws in the hierarchy. With regard to the relationship between EU law and the fundamental principles of the Austrian Federal Constitution, the prevailing view among legal scholars is that the fundamental principles take precedence over the the core of the constitution that is firmly rooted in integration It follows that, whilst EU law generally takes precedence over Austrian national law, this precedence is limited where EU law provisions are incompatible with the fundamental principles of the Federal Constitution. In such cases, therefore, the fundamental principles take precedence.

In legal practice, the fundamental principles have the following significance: they provide a basic understanding of how the state should be structured in its essential features. However, due to their general wording, specific legal issues can rarely be resolved directly on the basis of a single fundamental principle; they can, however, be drawn upon in the course of interpretation (interpretation in accordance with fundamental principles). In some cases, the Constitutional Court even bases its decisions directly on the fundamental principles (in particular the principle of the rule of law when dealing with issues of legal protection).

2. EXAMPLE OF A COMPREHENSIVE AMENDMENT

Austria’s accession to the European Union in 1995 is frequently cited in the literature as an example of a comprehensive amendment to the Federal Constitution. This is because accession affected the very essence of several fundamental principles of the Constitution (the principles of democracy, federalism and the rule of law).

3. BRIEF CONSIDERATIONS ON LEGAL THEORY

If the fundamental principles of a constitution could, in principle, be amended or repealed, this raises a controversial question: would it then be conceivable to abolish democracy itself? This question is the subject of heated debate in the academic literature. Whilst some authors argue that such an intervention would be legally possible, others emphasise that the people cannot relinquish their sovereignty.

Such legal-theoretical considerations are incredibly fascinating – but we hope that they remain nothing more than theoretical thought experiments.

4. TO PUT IT INTO A NUTSHELL

The fundamental principles of the Constitution form the foundation of the Austrian state and determine its basic structure, organisation and underlying values. These include (i) the federal principle, (ii) the democratic principle, (iii) the republican principle, (iv) the principle of the rule of law, (v) the principle of the separation of powers, and (vi) the liberal principle.

Given their central importance, these fundamental principles form, according to the prevailing view, the integral core of the Constitution and may only be amended or repealed by a two-thirds majority of Members of Parliament and with the consent of the people in a referendum.

Do you see the fundamental principles of the Constitution under threat? We are fighting alongside you to preserve them and will defend them with all our might. Join us in this cause!