1. GENERAL

Prevailing legal doctrine and case law hold that the Austrian Federal Constitution is based on six fundamental principles: the principles of democracy, republicanism, federalism, the separation of powers, the rule of law and liberalism. As our Federal Constitution is built upon these fundamental principles, they are also referred to as the „foundational principles of the Constitution“ or the „constitutional order“.

In the last three „Knowledge Bites“, three fundamental principles have already been introduced and discussed; three further fundamental principles will follow in the coming weeks. This „half-time“ mark is an opportunity to make a few fundamental remarks on the basic principles – in other words, on something ‘fundamental’ 😉.

2. Article 44(3) of the Federal Constitutional Act (B-VG)

The fact that the Austrian Federal Constitution is based on fundamental principles can only be inferred indirectly from its text. Article 44(3) of the Federal Constitution (B-VG) stipulates: „Any comprehensive amendment to the Federal Constitution, or a partial amendment only if requested by one third of the members of the National Council or the Federal Council, shall … be put to a referendum of the entire federal electorate“.

This provision of positive law makes it clear that there can be partial and comprehensive amendments to the Federal Constitution. A partial amendment occurs when a constitutional provision is amended, repealed or added; in this case, the existing Federal Constitution is amended „in part“.

But when does a „fundamental change“ occur? According to prevailing legal doctrine and case law, this is the case when a fundamental principle is significantly affected – which is always to be assumed when (i) a fundamental principle is breached, (ii) a fundamental principle is repealed or amended, (iii) the relationship between the fundamental principles is altered, or (iv) a new fundamental principle is enacted.

3. WHAT ARE THE BASIC PRINCIPLES?

In a legal system based on positive law, legal norms must be „enacted“ – that is to say, adopted – by the legislature so that those subject to the law can recognise them as requirements to be followed and comply with them. But where do the fundamental principles lie?

Apart from the terse phrase „Any comprehensive amendment to the Federal Constitution“ in Article 44(3) of the Federal Constitutional Act (B-VG), there is not a single reference to „fundamental principles“ or „constitutional laws“ in the B-VG. Rather, as the „highest level“ of constitutional law, they are derived from a comprehensive analysis of all constitutional provisions. Such a comprehensive analysis reveals that our Constitution is guided by certain guiding principles – namely, the fundamental principles.

That The fact that there are fundamental principles can therefore be seen from Article 44(3) of the Federal Constitutional Act; which Whether there are any fundamental principles, however, is a matter of debate in the literature. The prevailing view is based on the six fundamental principles mentioned at the outset[1].

The need for a holistic approach is clearly illustrated, for example, by the first sentence of Article 1 of the Federal Constitutional Law (B-VG) („Austria is a democratic republic“): The fact that Austria is a democracy does not follow from Article 1 of the Federal Constitutional Act, but from those constitutional provisions which provide for the participation of the people in the formation of state policy (in particular Article 41 et seq. of the Federal Constitutional Act); and the fact that Austria is a republic cannot be derived from Article 1 of the Federal Constitutional Act, but follows from the constitutional provisions concerning the legal status of the Federal President (in particular Article 60 et seq. of the Federal Constitutional Act). Article 1 of the Federal Constitutional Act is therefore merely of a declaratory nature. Hans Kelsen, the father of the Austrian Federal Constitution, therefore long resisted the inclusion of Article 1 of the Federal Constitutional Law (B-VG) in „his“ constitution; it was only following a suggestion from the then State Chancellor Karl Renner „Dear Professor! Every constitution must contain a little something beautiful!“, as the great legal scholar also said Hans Kelsen included as a small addition.

[1] By contrast, „Austria’s perpetual neutrality“ is not a fundamental principle. As this was introduced in 1955 by a „normal“ Federal Constitutional Act – that is to say, without a referendum – (BGBl 211/1955), it can only have the status of a simple constitutional provision; it can therefore also be repealed by a „normal“ Federal Constitutional Act.

4. WHAT IS THE LEGAL SIGNIFICANCE OF THE FUNDAMENTAL PRINCIPLES?

The legal significance of the fundamental principles lies in the fact that they constitute the highest level of law in Austria. They are the legal norms that are the most difficult to amend. This is because such an amendment requires not only a „normal“ constitutional act; the people of Austria must also approve the amendment by means of a referendum.

To date, such a „comprehensive amending Federal Constitutional Act“ has been enacted on only one occasion. As Austria’s accession to the EU resulted in powers being transferred „to Brussels“, this intervention in the fundamental principles of democracy, the rule of law and the separation of powers had to be put to a referendum. The Austrian people approved this comprehensive amending Federal Constitutional Act on 12 June 1994 by 66.6% (Federal Law Gazette 735/1994).

The fact that the fundamental principles form the top layer of our Federal Constitution, yet can nevertheless be amended, leads to a remarkable realisation: Unlike in other constitutions (cf. for example the „perpetuity clause“ in Article 79(3) of the German Basic Law), there is no unamendable constitutional law in Austria. Our Federal Constitution makes it possible, by legal means – namely, by enacting a corresponding Federal Constitutional Act with the consent of the federal people via a referendum – to transform the republic into a monarchy, democracy into a dictatorship, or the rule of law into

to transform a police state or the separation of powers into a fusion of powers, or a liberal state into a totalitarian one. The reason for this is not value neutrality, let alone value indifference, but rather the profound realisation that decisions on such fundamental socio-political issues must be taken in Parliament – and not on the streets. If a majority of the population is in favour of a departure from the existing fundamental political consensus, then this change will come about even if the Constitution – because it is supposedly „unamendable“ – does not actually permit it. It is precisely such a breach of the Constitution – and thus a civil war – that the Federal Constitutional Act (B-VG) seeks to prevent.

These fundamental principles cannot be altered by EU law. The reasoning behind this is an „inherent legal reservation“ that Austria held upon joining the EU. In this context, the term „constitutional core resistant to integration“ is used.

5. TO PUT IT INTO A NUTSHELL

The fundamental principles are the constitutional provisions on which our Federal Constitution is based. They form the fundamental social consensus of our state, but are not immutable. As the highest level of law, however, any amendment to them requires not only a qualified constitutional majority in Parliament, but also the approval of the Swiss people in a referendum. In this sense, the fundamental principles are therefore subject to democratic scrutiny and are also enforceable in court.

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