The Constitution of Austria in International Constitutional Networks: Pluralism, Dialogues and Diversity

Abstract

The report shows that the Austrian constitutional framework is composed of a range of domestic and international instruments. The core constitutional act from 1920 is detailed, as are amendments regarding EU and international law. However, the 1867 State Basic Law provides only a generic bill of rights, and therefore the ECHR is the main, constitutionalised source of fundamental rights protection. The Constitutional Court reads the relevant provisions from the different instruments together, to provide a comprehensive protection. Earlier, the constitutional culture had been characterised as formalistic; this changed in the 1980s under the influence of the German Constitutional Court and the ECtHR towards a strict approach to the rule of law and rights. Constitutional review is marked by the principles of legality and reasonability. It is notable that several cases at the heart of the present research project have originated from Austrian courts, such as Data Retention (Seitlinger), Heinrich, Schmidberger and Weidacher. Regarding the European Arrest Warrant, the Austrian courts stand out with a rights-protective approach. The challenge to the ESM Treaty led to constitutional amendments that ensure parliamentary authorisation for increased expenditure. The report outlines areas where EU law has improved fundamental rights protection as well as those where it has been weakened. The report makes a case for retaining the pluralism and diversity of constitutional cultures, finding that it is necessary to see the incommensurability of the various legal traditions and the impracticability of attempting to unify all traditions in one common constitutional tradition.

General Principles of Law as Common Constitutional Traditions of the European Union Member States

“…And this is why there cannot be a situation where there is a lack of the common constitutional traditions in the part of protecting the values introduced by the same Basic Norm as they by no doubts exist even if they are on an unwritten normative level in a form of general principles of law and maybe the legislators have not been able to write them down appropriately into the written law. If we are speaking about the plurality of constitutional cultures, 23 then it can be referred only to that part of the values, which are historically and culturally connected with the given sovereign and not to the part introduced by the same Basic Norm.…”

Constitutional Restriction on Human Rights and Freedoms in the Development of Liberal Democracy in Europe

“…16). 24 In each case, any restriction of freedoms or rights must correspond to the nature of the need to limit them. 25 The Constitution of Croatia establishes the scope and conditions of application by the state of a number of restrictions (Art.17).…”