1. GENERAL

1.1. Introductory remarks

Our Federal Constitution is not only proverbially „elegant“ (© Alexander Van der Bellen). It is also characterised by a number of distinctive features. One of these is the fact that Austria has not just one supreme court, but three: the Constitutional Court, the Administrative Court and the Supreme Court. Each court has its own jurisdiction, which is precisely delineated under constitutional law from that of its „counterparts“.

1.2. Constitutional Court (VfGH)

The Constitutional Court is the „guardian of the Constitution“; alongside the Administrative Court, it is a court under public law. Its role is to ensure that the actions of the state are in accordance with the Federal Constitution and that people’s fundamental rights are upheld. Its responsibilities include, in particular:

• Review of legislation: The Constitutional Court examines whether federal or provincial laws are compatible with the Federal Constitution and may, where necessary, repeal any laws found to be unconstitutional.
• Review of regulations: The Constitutional Court checks whether regulations issued by administrative authorities have been enacted in accordance with the law, and, where necessary, annuls any regulations that are unlawful.
• Protection of fundamental rights: The Constitutional Court also rules on appeals against decisions of the administrative courts where a violation of rights guaranteed by the Constitution is alleged.
• Electoral jurisdiction: The Constitutional Court rules on challenges to elections (e.g. the election of the Federal President, the National Council, the European Parliament and local authorities). It annuls an election if it is proven that the electoral process was unlawful and that this actually influenced, or could have influenced, the election result.
• Property disputes (also known as jurisdiction over the merits): The Constitutional Court rules on certain claims under public law relating to property against the Federal Government, the Länder, local authorities or associations of local authorities, provided that no other court or administrative authority has jurisdiction in such matters.

1.3. Administrative Court (VwGH)

The Administrative Court (VwGH) is also a court of public law. Its responsibilities include:

• Decision on appeals on grounds of unlawfulness: The Supreme Administrative Court rules on appeals against decisions of the administrative courts that are challenged on the grounds of unlawfulness. In doing so, it examines whether the administrative courts have lawfully applied ordinary legislation (e.g. building, trade or immigration law) and contributes to the uniform interpretation and application of such legislation. Whilst the Constitutional Court (VfGH) ensures compliance with constitutional laws, the Administrative Court safeguards the lawful application of ordinary laws.
• Decision on applications for the setting of a time limit: The Supreme Administrative Court rules on applications alleging a breach of an administrative court’s duty to give a decision, thereby ensuring that proceedings are concluded in a timely manner.
• Decisions on conflicts of jurisdiction: The Administrative Court rules on disputes over jurisdiction between administrative courts, and between an administrative court and the Administrative Court.

1.4. Supreme Court (OGH)

The Supreme Court is the highest court in the ordinary court system and rules in the final instance on civil and criminal matters. Its responsibilities include, amongst other things, ruling on civil proceedings (e.g. disputes arising from contracts, claims for damages or inheritance) and criminal proceedings (e.g. theft, fraud or assault). Furthermore, through its case law, it contributes to the uniform interpretation and application of these laws, thereby ensuring legal certainty in civil and criminal matters in Austria.

2. HANS KELSEN AND THE AUSTRIAN CONSTITUTIONAL COURT SYSTEM

The Federal Constitutional Act of 1920 established the Constitutional Court in its present form. This model was significantly shaped by the Austrian legal scholar Hans Kelsen, who, as a co-author of the Federal Constitution, developed the idea of a centralised constitutional judiciary. His fundamental idea was groundbreaking: the Constitution forms the basis of the entire legal system, and compliance with it is monitored by a dedicated court; this meant that, for the first time, laws could also be struck down by a court as „unconstitutional“. Austria was thus a pioneer on the world stage. This „Kelsenian“ or „Austrian model“ was adopted by numerous states after the Second World War – including Germany, Italy, Spain and Portugal – and continues to shape the constitutional jurisdiction of many democracies to this day. Austria can rightly be proud of this.

3. TO PUT IT INTO A NUTSHELL

With the Constitutional Court (VfGH), the Administrative Court (VwGH) and the Supreme Court (OGH), Austria has three supreme courts which, together, ensure the protection of the Constitution, the legality of state action and the uniformity of case law.

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