The Austrian case: More room for judicial activism but a merely theoretical risk of friction
Like Switzerland, Austria endorses a moderate version of monism.[138] As in Germany, however, the relationship of the Austrian constitution to international law is marked by the dogmatic dichotomy between general principles of international law and international treaties.
The Austrian Constitutional Court is recognised as the earliest model of a stand-alone constitutional court.[139] It is the sole court in the country competent for constitutional review. Yet it is less powerful than its German counterpart in the sense that it cannot revise judgments of civil or criminal courts.[140] The constitution can be amended by a two-thirds majority of the two chambers of parliament, and elevating a legal rule to the level of the constitution would immunise it from constitutional review. Austria is a member of the European Union and amended its constitution to enable membership.The rank of treaties is determined by the importance of their content. ‘Which rank an international treaty rule holds depends on the form that it would need to have if it were domestic law.’[141] [142] The similarities to the recent attempt to reform the Swiss constitution (Art. 140 FC, see supra) aiming at improving the democratic legitimacy and the clarity of the rank of treaty law are remarkable. At the time of the referendum on EU membership in 1994, Austrian legal scholars disagreed as to whether a referendum can and ought to be held on an international treaty that is of such importance that if it were domestic law, its adoption would require a referendum. This uncertainty was circumvented by creating a domestic statute of constitutional rank that authorised the government to ratify the accession treaty. 1 The same technique was
Activism as defence 57 applied for the ratification of subsequent EU primary law.82 In a general reform of the Austrian constitutional law in 2007/2008, the constitutional rank of a series of international treaties was reaffirmed (by way of not downgrading them and including them into the newly ordered corpus of laws of constitutional rank).
3 Importantly, among those treaties is the ECHR. Thus, the ECHR - along with its additional protocols and a series of other treaties - enjoys constitutional rank in Austria, while it enjoys the rank of regular statutory law in Germany and (as things stand currently) a supra-constitutional rank in Switzerland.Compared to Switzerland, the friction surface between domestic constitutional law and international law is decisively smaller in Austria due to the country’s EU membership. One of the structural characteristics of EU law compared to ordinary international treaty law (the mechanism by which Switzerland is linked to the EU) is that EU law itself sets out its rank in relation to the domestic law. EU law claims supremacy even over domestic constitutional law, which is reflected in Austrian legal doctrine and jurisprudence84 (with the exception of changes in EU law that are so fundamental that their application in Austria would amount to a total revision of its constitution, which would require a popular referendum).85 If frictions occur along this (extended) line of potential conflicts, the rules of conflict are settled. Not so for Switzerland. In international treaty law, it remains for the domestic legal order to determine its rank.86 So for Austria the friction surface is markedly smaller than for Switzerland, since the question of rank is already settled by the legislative process for the vital rules, linking the country to the EU and the ECHR.
The possibility to grant a treaty constitutional status through a qualified process of ratification by the parliament used to immunise treaty norms against constitutional review. Under the former Austrian constitution (in force until 2008), this created an incentive for parliament to lift treaty norms (like domestic statutory law) to the constitutional level, thereby limiting possible activism by the Constitutional Court.87 Since the reform of the Austrian constitution in 2008, this option no longer exists.88 This development enlarges both the friction surface between international and constitutional law and the room for activism for the court.
However, as already shown, those sets of treaties that cause most of the friction with domestic law in Switzerland - the treaties relating the country to the EU and the ECHR - do enjoy constitutional rank in Austria.Zusammenspiel von Europarecht und nationalem Recht der Mitgliedstaaten: Ein Handbuch fur Theorie und Praxis, (Vienna, Springer Vienna, 2010), 626.
82 Ibid., 629.
83 Lindermuth, p. 301.
84 Ohlinger (n 83), 639.
85 Ibid., 640.
86 Ibid., 638.
87 P Lindermuth, ‘Das Recht der Staatsvertrage nach der Verfassungsbereinigung’ (2009) 64(3) ZOR 299, 307.
88 Ibid., 310. Also see Peters (n 8), 185-186.
A constitutional amendment that is in contradiction with the ECHR is - in the absence of popular initiatives to amend the constitution - rather hypothetical in Austria, which is why the ECHR can hold mere constitutional rank in the Austrian context.[143] Still, this leaves open the possibility for more recent constitutional law to override the ECHR - as the Austrian Constitutional Court implied in its Milt- ner Judgment of 1987.[144] In Switzerland, where a large portion of constitutional law is more recent than the Convention, such a case law would entail a real risk of a severe stand-off between the Federal Supreme Court and the ECtHR. This is why the Miltner solution would be very risky for Switzerland. As soon as such contradictions are not only a theoretical problem, and occur with treaties equipped with a mechanism of enforcement (like the ECHR) or backed by overwhelming political power (like the bilateral treaties between the EU and Switzerland), granting supremacy to treaties even over more recent constitutional law becomes - practically speaking - the only viable option.[145] The Austrian example, therefore, corroborates the claim that ranking specific international treaties below the constitution is only a tenable position for a country as long as potential conflicts between the constitution and such treaties remain a largely theoretical possibility.[146] This conclusion may be extended to treaties other than the ECHR with a biting enforcement mechanism.
The fact that the Federal Constitutional Court in Germany developed techniques to circumvent the lex posterior rule in the relationship between the ECHR (and its act of transition into German Law) and the Grundgesetz[147] further corroborates this hypothesis.
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