1. GENERAL

The fundamental liberal principle – like all other fundamental principles – is not explicitly enshrined in the Federal Constitutional Law (B-VG), but is derived from a comprehensive interpretation of the constitutional provisions, in particular from the fundamental rights and freedoms guaranteed by constitutional law (in particular the B-VG, StGG, ECHR).

2. PROTECTION AND GUARANTEE OF FREEDOM

At the heart of the liberal principle lies the protection of individual freedom from state interference. This „freedom from the state“ is safeguarded by the rights guaranteed under the Constitution (fundamental rights).

Fundamental rights primarily function as rights of defence against the state. They limit state powers and either completely preclude interference with legal interests deserving of special protection or subject such interference to strict constitutional conditions. Classic civil liberties include freedom of expression (Article 13(1) of the Austrian Constitution, Article 10(1) of the ECHR, Article 11 of the EU Charter of Fundamental Rights), the right to property (Article 5 of the Austrian Constitution, Article 1 of the First Protocol to the ECHR, Article 17 of the EU Charter of Fundamental Rights), freedom of religion (Article 14(1) of the Austrian Constitution, Article 9(1) of the ECHR, Article 10(1) of the Charter of Fundamental Rights of the European Union) or the right to personal liberty (Article 1 of the Federal Constitution on the protection of personal liberty, Article 5 of the ECHR, Article 6 of the Charter of Fundamental Rights of the European Union).

3. THE FUNDAMENTAL PRINCIPLE OF THE RULE OF LAW AND LIBERALISM

The fundamental principle of liberalism and the fundamental principle of the rule of law are closely interlinked and together determine the relationship between the state and society.

The rule of law is based on the fundamental principle of the separation of state and society. „The state“ may act only on the basis of laws and is bound by the constitution. Society is, admittedly, subject to state authority – as determined by law in this way – and bound by its laws; however, this applies only to the extent that statutory provisions actually exist. Conversely, it follows that: In the absence of any statutory provision, the company is free to act as it sees fit.

If, for example, a flying mode of transport (e.g. an air taxi) is developed that cannot be classified under any of the existing legal categories (= it cannot be classified as an aeroplane, a motor vehicle or a drone), it may be operated without official authorisation – provided the law does not stipulate otherwise. However, even in the absence of a specific legal basis, the following applies: the operation of such means of transport must not infringe any (other) applicable legal provisions – e.g. aviation regulations governing the use of airspace – nor may the rights of third parties be infringed, such as the right to property or the right to physical integrity by endangering people on the ground. The legislature will therefore have a strong interest in regulating this type of transport as quickly as possible. This hypothetical example also illustrates that many laws are reactive in nature – they regulate something that was previously unregulated or only inadequately regulated.

4. PROPORTIONALITY AND STATE SELF-RESTRICTION

The aim of the legislature is to strike a balance between individual freedom, the protection of the public interest and the interests of society as a whole. Restrictions on freedom – including explicitly codified prohibitions – must therefore be proportionate and must not result in a gross imbalance between the interests concerned.

The fundamental principle of liberalism (as well as that of the rule of law) guarantees freedom from the state. This freedom is constitutionally safeguarded by fundamental rights.

5. CONSTITUTIONAL IMPLICATIONS

Amendments which undermine the essential substance of the liberal principle or substantially alter its fundamental structure constitute a comprehensive amendment to the Federal Constitution, which (in addition to the constitutional majorities in the National Council and the Council of States) requires a referendum. A mere modification – for example, of individual fundamental rights – may, however, be constitutionally unobjectionable, provided that the essential nature of the liberal principle as a whole is preserved.

6. EXAMPLES

6.1. Freedom of ownership

The right to property (Article 5 of the Austrian Constitution, Article 1 of the First Protocol to the ECHR, Article 17 of the Charter of Fundamental Rights of the European Union) guarantees that individuals may acquire property and, in principle, dispose of it as they see fit. The owner may do with their property as they please – that is, they may use it, alter it or even destroy it. However, this freedom ends where the rights of others are infringed. For example, someone may scratch or even scrap their own car if they so wish. It would, however, be unlawful to set their car alight if this were to damage another person’s property – such as a vehicle parked next to it – or endanger people. The freedom of the individual is thus limited by the freedom and rights of others.

6.2. Personal freedom

These freedoms, guaranteed in a liberal state, are of immense importance – even if we Austrians and Europeans often take them for granted. Precisely because we live in, or have grown up in, a liberal constitutional state, we perceive personal, economic and professional freedom as the norm. However, the fact that these are rights that have been hard-won historically and are enshrined in the constitution often only becomes clear when compared with other countries – as the following example illustrates:

In Austria, a person may only be arrested on the basis of a statutory provision and subject to strict conditions in accordance with the rule of law (right to personal liberty: Article 1 of the Austrian Federal Constitution on the protection of personal liberty, Article 5 of the ECHR, Article 6 of the EU Charter of Fundamental Rights). Any deprivation of liberty is subject to judicial review, and every person concerned enjoys comprehensive procedural safeguards (in particular the right to a fair trial and the right to be tried by a court established by law). For us Austrians and Europeans, this fundamental right seems to be a matter of course. The current situation in Iran shows that this is by no means the case everywhere. Time and again, people are imprisoned on the grounds of political activism or activities critical of the regime. Comparable guarantees under the rule of law – such as those found in Austria – simply do not exist.

6.3. Freedom of occupation

Another hard-won freedom is the freedom to choose one’s profession (Article 18 of the Austrian Constitution, Article 15(1) of the EU Charter of Fundamental Rights). In Austria, in principle, anyone may take up the profession they wish to practise. In most cases, this requires „merely“ the relevant professional training or qualification. Although the state does lay down entry requirements in certain cases, it does not assign professions nor does it determine who is to carry out which work.

A comparison with authoritarian states such as North Korea shows that this, too, cannot be taken for granted. There, professional activity is largely controlled by the state; jobs are allocated, and work is carried out under conditions dictated by the state. The freedom to choose or change one’s profession is severely restricted or even impossible.

7. TO PUT IT IN A NUTSHELL

This liberal principle is one of the fundamental principles of the Austrian Federal Constitution and entails the protection of individual freedom from state interference. This freedom is safeguarded by the constitutional guarantee of fundamental rights, which secure spheres of life free from state interference for the individual and protect them from any disproportionate interference.

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