1. GENERAL

The Austrian people’s enthusiasm for neutrality has – if one is to believe public opinion – remained unbroken for decades: more than 50% are proud of Austria’s neutral status, and more than 70% are in favour of maintaining neutrality. Neutrality thus ranks – alongside St Stephen’s Cathedral, Sisi and social partnership – among the country’s most iconic and revered relics. This, of course, in the opposite sense: anyone who challenges them is (politically) finished.

2. ON THE SPECIFIC MEANING

2.1. On the legal significance of neutrality

Which legal But what is the true significance of this neutrality? Given the prominence it occupies in public debate, one might well assume that neutrality constitutes a fundamental principle within the meaning of Article 44(3) of the Federal Constitutional Law (B-VG). Alongside the fundamental principles of democracy, republicanism, federalism, the rule of law, the separation of powers and liberalism, there is thus also a fundamental principle that obliges Austria to „perpetual neutrality“.

In fact, the prevailing view is against such a characterisation. And this is for one simple reason: the six fundamental principles mentioned are not explicitly referred to anywhere in the B-VG. The fact that they exist must, This follows from the fact that Article 44(3) of the Federal Constitutional Law (B-VG) refers to a „comprehensive amendment“ to the Federal Constitution – and, according to the case law of the Constitutional Court, such a comprehensive amendment is to be assumed when an existing fundamental principle is violated, significantly altered or abolished, or when a new fundamental principle is added to the existing body of fundamental principles.

It must Therefore, these are the basic principles. Which Any fundamental principles that exist must be deduced from an „overall interpretation of the Federal Constitution“.

This „overall assessment“ can, of course, logically only relate to the Federal Constitution that was already in force at the time Article 44(3) of the Federal Constitutional Act (B-VG) came into force – that is, the Federal Constitutional Act of 1920 (together with its ancillary legislation). Since there is no abstract, evaluative clause specifying when constitutional provisions are so significant that they are to be regarded as fundamental principles, the constitutional legislator’s assessment can only have referred to that „constitutional material“ which was already in existence at the time Article 44(3) of the Federal Constitutional Law (B-VG) came into force. These are the provisions of the 1920 Federal Constitutional Law (B-VG) (including ancillary legislation) themselves.

However, neutrality was only formally established by the „Federal Constitutional Act of 26 October 1955 on the Neutrality of Austria“ (BGBl 211/1955; „BVG on Neutrality“) was introduced. This is remarkably brief and reads as follows:

Article I

(1) For the purpose of permanently asserting its independence vis-à-vis the outside world and ensuring the inviolability of its territory, Austria hereby declares, of its own free will, its perpetual neutrality. Austria shall uphold and defend this neutrality by all means at its disposal.

(2) To ensure these objectives are met, Austria shall not, at any time in the future, join any military alliances, nor shall it permit the establishment of military bases belonging to foreign states on its territory. …“.

Since the provision on neutrality in the Federal Constitutional Act (BVG) is not part of the „original text“ of the Federal Constitutional Act (i.e. not part of the 1920 Federal Constitutional Act), but was enacted at a later date, and since this enactment did not take place with the status of a fundamental principle (in accordance with Article 44(3) of the Federal Constitutional Act: constitutional majorities in the National Council and the Federal Council + mandatory approval by the federal electorate in a referendum), the BVG on Neutrality can only have the status of a „simple“ constitutional law – and not that of a fundamental principle.

This characterisation stems from the normative-theoretical consideration that a norm can only be overridden by a conflicting norm („contrarius actus“) can be repealed if it has the same legal status (i.e. was enacted by the same legislative body in accordance with the same rules). As the BVG on neutrality was enacted as a „simple“ constitutional law, it can also be amended or repealed by a simple constitutional law; a referendum is not required for this.

2.1. National Day

And what about the Austrian National Day, which is celebrated in style every 26 October? Do people really celebrate the fact that „the last Russian“ (meaning: the last „Soviet occupying soldier“) left Austria? Yes and no!

The „Federal Act of 28 June 1967 on the Austrian National Holiday“ (BGBl 263/197) reads as follows:

Preamble

Bearing in mind that, on 26 October 1955, Austria, by means of the Federal Constitutional Act Federal Law Gazette No. 211/1955 has, by virtue of Austria’s neutrality, declared its resolve to preserve its independence for all time and under all circumstances, and to defend it by all means at its disposal, and has enshrined its perpetual neutrality in that very same Federal Constitutional Act; and in recognition of the intention thereby expressed to make a valuable contribution to world peace as a permanently neutral state, the National Council has resolved:

Article I

26 October is Austria’s National Day.

Article II

“Austria’s National Day is celebrated with great fanfare throughout the country. …".

So on 26 October, we do not celebrate the fact that the last „occupying soldier“ (who – nota bene – was not a soldier of the Soviet Union, but of the French army – left the territory of the Federal Republic, but the fact that the Austrian Parliament had decided on Austria’s perpetual neutrality!

Admittedly, the Austrians„ collective memory is not entirely incorrect: in 1955, the Austrian Government felt it was important to emphasise that neutrality was not being imposed on our country (cf. Article I(1) of the Federal Constitutional Law on Neutrality: “… of its own free will …„). The Basic Law on Neutrality was therefore only adopted by Parliament on the day following the departure of the last “occupying soldier’ from Austria. No one should later be able to claim that Austria had committed itself to perpetual neutrality solely under military coercion. A trifle? No, this We have been spared the ‘stab-in-the-back’ myth….

3. TO PUT IT INTO A NUTSHELL

Don’t remain neutral in the face of injustice! Our society and our legal system thrive on people having values, understanding them and standing up for them. We’re passionate about supporting you in this! Make a difference with us!