Ratio Juris. Vol. 16 No.

2 June 2003 (240–65)

The Constitutional Court of the

Republic of Austria 1918–1920
GEORG SCHMITZ*

Abstract. Constitutional review was the most original idea stemming from the
Austrian Federal Constitution of 1920. It is argued that the politician Karl Renner
gave birth to the idea of a constitutional court. Hans Kelsen played the predominant
role in the drafting of constitutional provisions. The new Constitutional Court pro-
vided for a centralized system of review, with an eye to a number of politically
important issues. Owing to the pressure that stemmed from various discussions
between and among the politicians of the national state and the Länder, Kelsen was
obliged to depart from the German model of the federal state and to develop in its
place a new theory.

The Constitutional Court is an institution of the republican constitution of

Austria. The question of the origins of the Austrian Constitutional Court has
been answered in a variety of ways.
In a 1958 radio interview Hans Kelsen remarked:

My own intention was to codify those political principles that had been set out for
me in the technique of the law as accurately as possible and in doing so, to incor-
porate effective guarantees for the constitutionality of the functions of the state. I
regard the section on the guarantees of the Constitution and of the administration
as the legal core. [ . . . ] The section that mattered most to me, the one that I consider
as my most personal work, that on constitutional review, was not changed at all in
the course of parliamentary proceedings. (Hans Kelsen-Institut 1974, 49–50)

Herbert Haller, considering the origins of constitutional review, arrived at

the conclusion that this statement of Kelsen’s has to be taken with reserva-
tions (Haller 1979, 71).
Felix Ermacora, who in 1967 was the first to publish source material on
the enactment of the Austrian Federal Constitutional Act of 1920 (Ermacora
1967), asked in a book review in 1992:

* I am grateful to Stanley L. Paulson for advice on matters of terminology and style at a number
of points in my work on this text.

© Blackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.
 The Constitutional Court of Austria 241

Who was actually the originator of the idea of Austrian constitutional review—Karl
Renner or Hans Kelsen? In one of my publications I held the view that the forma-
tion of this institution goes back to preparatory work by Karl Renner and that Hans
Kelsen had only cast the ideas of Karl Renner into legal forms. (Ermacora 1992, 560)

1. The Emergence of the “German-Austrian Constitutional Court”

Aiming at the preservation of the Austro-Hungarian Empire by reshaping
Cisleithania, the Austrian segment of the Austro-Hungarian Monarchy, into
a federal state, on 16 October 1918 Emperor Charles I invited the nationali-
ties of Cisleithania to form states (staatliche Gemeinwesen) in their areas of
settlement (Rumpler 1966). The members of Parliament of each nation were
to form National Councils (Nationalräte), which would represent the inter-
ests of their peoples. Thus, the German-speaking members of the Austrian
House of Representatives convened on 21 October 1918 as the “Provisional
National Assembly for German-Austria” for the representation of the
Germans in the Habsburg-Monarchy. In these October days Karl Renner
drew up a “draft of a provisional constitution” (Brauneder 1991; Schmitz
1991, 33–49, 165–94). Instead of being a means for consolidation, however,
the imperial manifesto served to signal the collapse of the Monarchy. The
rapid emergence of independent successor states was unexpected, and it
meant that a long and more thorough discussion of a constitution for
German-Austria was rendered impossible. That explains why the German-
Austrian “Provisional Constitution” was the result not of a single act of
legislation but of a sequence of laws. Institutions of the former state were
adopted through individual laws and modified only in so far as required by
democratic and republican principles and the limitations of a smaller
national territory.
With regard to the Austrian constitutional transition between October
1918 and November 1920, two phases can be distinguished (Froehlich 1925,
xix and lxxvii):
• From October 1918 until March 1919: A model uniting the functions of
power (legislation and administration) as conceived by Karl Renner,
with a National Assembly as law-making body, a Council of State
(Staatsrat) as an executive committee of the National Assembly with
the authority to issue other general and abstract regulations such
as ordinances (Vollzugsanweisungen), a National Government (Staats-
regierung) as the totality of the representatives (Beauftragte) of the
Council of State for the execution of laws and ordinances and to serve
as the head of the administration (Decision of the Provisional National
Assembly for German-Austria of 30 October 1918, StGBl. [State Law
Gazette], nr. 1, on the Fundamental Institutions of the State Authority).
A similar interlocking between decision-making and executive bodies
should be established in the counties (Kreise) and Länder, which were
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242 Georg Schmitz

thus equally thought of as layers of self-determination and self-

administration.
• From the middle of March 1919 to November 1920: A model of the sep-
aration of powers according to drafts worked out in a Department for
Constitutional Reform in the State Chancellery.

Since 1899, the Austrian Social Democrats had demanded for the Austrian
half of the Monarchy a federal state of the nationalities (Berchtold 1967,
144–5, 149–50, 156–63; Renner 1918, 145–52, 232–6). According to their party
programmes and resolutions, the self-government of the nationalities was
to take place in a “graded separation of powers” (Renner 1918, 147–8)—
between counties (ibid., 227–30), “entities of national representation and
administration” (ibid., 231, 257–62) and the federal state. Renner developed
these ideas in his books, in particular in The Struggle of the Austrian Nations
for the State. The National Problem as a Constitutional and Administrative Ques-
tion (Renner 1902), combined with Georg Jellinek’s demand for A Constitu-
tional Court for Austria (Jellinek 1885).1 The title of the second edition of
Renner’s book, The Right of Self-determination of the Nations, Applied in Par-
ticular to Austria. First Part: Nation and State (Renner 1918), expressed the
changed circumstances. It would no longer be the monarch but the nation-
alities themselves that would decide their future. Neither the second edition
of Renner’s book (published under the Monarchy) nor the “Decision of the
Provisional National Assembly of 30 October 1918 on the Fundamental Insti-
tutions of the State Authority” (another draft of Renner) provided for the
state-functions of the monarch. In the second edition of his book, Renner
(1918, 291–4) made provisions for the following competences of the Federal
Constitutional Court:

• Examination of the constitutionality of a measure taken by a member

state upon the request of the Federal Parliament or the Federal Gov-
ernment, with no similar right accruing to the member states.
• Guarantee of the individual public rights of the citizens.
• Transfer of the functions of the existing Staatsgerichtshof, which had
decided cases of impeachment, to the Federal Constitutional Court.

A federal judge (Bundesrichter), who was to be named by the two chambers

of the Federal Parliament, would be in charge of the Federal Constitutional
Court. The federal judge (not the monarch) would appoint the judges of the
Federal Constitutional Court from three nominations submitted by the first
and the second chamber of the Federal Parliament. The nationalities should
have the right “to affect” the appointment of judges (Renner 1902, 241). The

1
Renner (1902, 75, note 16) acknowledges in another context that he was influenced by Georg
Jellinek.

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 The Constitutional Court of Austria 243

enforcement of the judgments of the Federal Constitutional Court would be

incumbent on the federal judge and not on the monarch. In the second
edition, Renner attached great importance to “a continuity of evolution.”
The powers of both the existing Reichsgericht and the existing Staatsgericht-
shof should be transferred to a newly established Constitutional Court
(Renner 1918, 292–4). These remarks of Renner are also of interest if seen in
the light of developments in autumn 1918.
In his “Draft for a provisional constitution” (October 1918) Renner used
the following formulation: Ҥ 69 section 2: The Reichsgericht (Law of 18 April
1869, RGBl. nr. 44) and the Staatsgerichtshof (Law of 25 July 1867, RGBl. nr.
101) are merged together by means of a special law.”
In the gradual transition of institutions of the Monarchy to German-
Austria (Deutschösterreich), the national State Secretary of Justice
(Staatssekretär für Justiz) on 10 November 1918 raised the question of the
future of the Administrative Court and of the Reichsgericht at the Kabinettsrat
(National Government, subcommittee of the Council of State). Renner
rejected the State Secretary’s suggestion that the Reichsgericht be dissolved
and that its competences be assigned to the Administrative Court2 owing to
the importance of the Reichsgericht for the protection of the individual polit-
ical rights of citizens. Thereupon the Kabinettsrat entrusted to the State Sec-
retary of Justice the preparation of a bill (AdR, Kabinettsratsprotokolle, nr.
7 [10.11.1918], item 18). Dr. Rudolf Hermann, responsible for legal matters
at the State Office of Justice, thought of creating a single law for regulating
the legal basis of the Supreme Court, the Administrative Court and the
Reichsgericht (Enderle-Burcel and Follner 1997, 181–2). He was, however,
instructed to draft three amendments for the transition of the three High
Courts (AVA, Justizministerium II-85, Staatsamt für Justiz Z. 2771–1918). The
three amendments reached the State Chancellery on 17 December 1918
(AdR, DÖ Staatskanzlei, Z. 1241–1918). Hermann, in his draft concerning
the Reichsgericht, took as his point of departure the idea that the Basic Law
of 21 December 1867 on the establishment of a Reichsgericht and the Law of
18 April 1869 on the Reichsgericht3 had become part of the new system of law
pursuant to § 16 of the Decision of the Provisional National Assembly of 30
October 1918 on the fundamental institutions of the state authority.
Three days after the discussion in the Kabinettsrat, on 13 November 1918,
Dr. Julius Ofner, himself a substitute in the Reichsgericht and member of par-
liament, argued in the Council of State for a transition of the Reichsgericht
and the Administrative Court into the new legal order. It is quite possible

2
In a file of the State Office of Justice there is a draft for a bill “Assigning the competence
of the Reichsgericht to the Administrative Court,” the author of which is not mentioned (AVA,
Justizministerium II-85, DÖ Staatsamt für Justiz Z. 1642–1918). The bill should be discussed
after the decision on merging the two Courts.
3
Law of 18 April 1869, RGBl. nr. (Reichs Law Gazette number) 44, concerning the organization
of the Reichsgericht, the proceedings and the enforcement of its sentences.

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244 Georg Schmitz

that Renner, who had taken on a great deal in those days, stood behind this
enquiry (AdR, Staatsratsprotokolle, Nr. 31 [13.11.1918, Verhandlungspro-
tokoll and Beschlussprotokoll]). In any case, it was now Renner who was
ordered to prepare a bill. He asked Hans Kelsen, professor of public law and
legal philosophy at the University of Vienna, to draft a bill. Before 1918, there
were no publications by Kelsen on a constitutional court.
In a statement of 9 December 1918, Kelsen had rejected the draft of the
State Office of Justice on the transition of the Reichsgericht. In his opinion, the
draft had been mistakenly based on the assumption that the Basic Law of 21
December 1867 on establishing a Reichsgericht was still in force. With the anni-
hilation of the former constitution, all of the legal rules based on it had also
been formally eliminated. Furthermore, Kelsen was not in favour of keeping
the old name “Reichsgericht.” On the face of it, the modification of the name
would also demonstrate the discontinuity between the former and the new
legal order (AdR, DÖ Staatskanzlei Z. 1032–1918, supplement III).4 Renner,
however, instructed Kelsen to frame a new draft with the following words:

Prof. Kelsen for the elaboration of a definite draft

Order:
• The former Reichsgericht will be maintained on the territory of German-Austria,
as an authority to which appeal can be made, if necessary, by the liquidators
in the process of liquidation qua court of arbitration, then for rulings in
pending legal claims, e.g., Land Lower Austria vs. Land Galicia on board-costs
[in hospitals] and so on.
• Name “Verfassungsgerichtshof” (“Constitutional Court”) in order to emphasize
its rank. [ . . . ]
• In all other respects, it is recommended that the work of the State Office of
Justice be followed, which seems to be more precise in legal details, mainly to
avoid sensitivities. (AdR, DÖ Staatskanzlei 1032–1918)

Kelsen drew up a bill on the establishment of a Constitutional Court which

disregarded the draft of Rudolf Hermann. The reasons offered on behalf of
the bill contained an abridged version of the preceding discussions:

Together with the former state of Austria, its state organs, too, ceased to exist legally.
In place of them, new state organs have to be established by the Constitution of the
Republic German-Austria. In doing so, the limits of competence could, of course, be
drawn differently than they had been determined according to the former constitu-
tion. It is therefore necessary to take precautions for the fulfilment of the functions
of the former Reichsgericht. It is possible that the Reichsgericht will not be replaced by
a new organ but that its competences are assigned to another court, such as the
Administrative Court or to whatever court takes the place of the Administrative
Court. That would undoubtedly be most advisable if it were not for the fact that the
most important competence of the former Reichsgericht, namely, the protection of the
constitutionally guaranteed individual political rights and the decision of conflicts
of competence demands a unique court of justice, one with the greatest degree of
4
The file was discovered by Gerald Stourzh in the Austrian State Archive (Stourzh 1982, 10,
note 12).

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 The Constitutional Court of Austria 245

independence and with outstanding qualifications in law on the part of its members.
This is the case only with the judges of the Reichsgericht sitting in an honorary capac-
ity.5 Instead of the former Reichsgericht, it is therefore advisable that an institution
with an organisation analogous to the former body be created. In light of the changed
constitutional conditions, the court should no longer be called Reichsgericht, but
rather Verfassungsgerichtshof, reflecting its most important competence. It seems
obvious, however, not to delimit the competences of that court on the basis of a strict
analogy to the former Reichsgericht. The need to reform the Reichsgericht is generally
well known and the necessity of a court of justice, that serves to protect the Consti-
tution in every respect, is evident. Therefore, it should certainly be considered appro-
priate that the newly created Constitutional Court be vested not only with the
competence to protect political rights but also with competence to take decisions in
cases of impeachment and with competence to scrutinize elections. But far-reaching
reforms like these exceed the limited competence of the Provisional National Assem-
bly and will have to be reserved to the Constituent National Assembly. For this
reason, the present draft limits itself to adapting the regulations of the former Reichs-
gericht to the new Constitutional Court. As for the question of staffing the Constitu-
tional Court, it is to be emphasized that new appointments are necessary. The
members of the former Reichsgericht are not to be regarded ipso iure as members of
the new Constitutional Court. This is owing not only to the fact that the Constitu-
tional Court is not a legal successor to the Reichsgericht but also to the fact that the
composition of the former Reichsgericht had to take into consideration nationalities
that belonged to the former Austria but do not belong to German-Austria. In all prob-
ability, these non-German members do not even have German-Austrian citizenship.
(AdR, DÖ Staatskanzlei 1032–1918)

Beginning on 8 January 1919, the Council of State dealt with the draft of the
national State Chancellery (Staatskanzlei) and submitted it, on 17 January
1919, to the Provisional National Assembly. In view of the forthcoming elec-
tions and the urgent need to pass the bill, contrary motions were not brought
forward either in the Council of State or in the Provisional National Assem-
bly. During the debate in the Assembly, Julius Ofner pointed out that claims
against the state were a matter for the ordinary courts and that the appoint-
ment of the judges of the Constitutional Court by the Council of State was
questionable. He expected that ultimately the Constituent National Assem-
bly would set down a rule to regulate the matter (Provisional National
Assembly for German-Austria, Stenographisches Protokoll, 15. Sitzung
[25.1.1919], 567–8). However, the Law on the establishment of the German-
Austrian Constitutional Court was passed on 25 January 1919 (Law of 25
January 1919, StGBl. nr. 48), and it corresponded almost completely to the
draft of the State Chancellery and thus, to Kelsen’s. The competences of the
Constitutional Court were as follows:

• Decision on conflicts of competence.

• Claims against the Republic or against the Länder if the claims were
excluded from ordinary jurisdiction.
5
Kelsen adopted an opinion that was both quoted and criticized by Bernatzik (1914, 17). Cf.
Walter 1971, 761.

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246 Georg Schmitz

• Complaints of an infringement of a constitutionally guaranteed politi-

cal right of citizens (Kelsen, Froehlich and Merkl 1922, 248).

Contrary to the Reichsgericht, which had consisted of a president, a vice-

president, 12 members and 4 substitute members, the plenum of the Con-
stitutional Court included a president, a vice-president, 8 members and 4
substitute members. The appointment of the President, the Vice-President
and the judges was a matter exclusively for the Council of State without a
plenary vote in the National Assembly. On 14 February 1919, the executive
directorate of the Council of State appointed the President, Vice-President,
the members and substitute members. The Council of State approved this
decision a few days later (AdR, Staatsratsprotokolle, nr. 74 [20.2.1919, Ver-
handlungsprotokoll]; Gschließer 1968, 28–9). Paul von Vittorelli, a judge,
former imperial-royal Minister of Justice and one of three permanent
Rapporteurs of the Reichsgericht, became President of the new Court. Edmund
Bernatzik, an outstanding professor of constitutional and administrative
law, was also under discussion; he was not, however, called to the presi-
dency, for “as a university professor he was too preoccupied by the demands
made on him as professor” (AdR, Staatsratsprotokolle, nr. 74 [20.2.1919, Ver-
handlungsprotokoll]). In any case, Bernatzik died shortly thereafter, on 30
March 1919. The suggestion to appoint “members and substitute members
[of the Reichsgericht] of German nationality” to the Constitutional Court was
only partly fulfilled (AdR, Staatskanzlei 1032–1918, Beilage III). Seven out
of ten German-speaking members and one of four German-speaking sub-
stitute members now belonged to the Constitutional Court.6 Just as in the
case of the Reichsgericht (Hugelmann 1915; Bernatzik 1914, 16), the political
parties also determined the list of the judges of the Constitutional Court.
Among the new members and substitute members were members of par-
liament, some of whom were favourably disposed to the Social Democrats,7
some to the Christian Socials.8 One of the permanent Rapporteurs of the
Reichsgericht, Robert Pattai, had, in November 1918, taken a lively interest
in being appointed to the new Court (AVA, Justizministerium II—85,
Z. 1641–1918 [Robert Pattai, “Pro memoria. German-Austria and the
Reichsgericht”]). Yet he did not become a member, for he had broken with
the Christian Socials after 1911 (Schmitz 1998, 391–2). Establishing the per-
sonnel of the Constitutional Court was nevertheless easier than with the
Administrative Court, since the judges of both the Reichsgericht and the Con-
stitutional Court served in an honorary capacity. The number of judges
serving on the Administrative Court—they had been compensated as

6
Vittorelli, Menzel, Bernatzik, Esser, Neumann-Ettenreich, Ofner, Sylvester, Kolisko
(Gschließer 1968, 29).
7
Friedrich Austerlitz (editor-in-chief of the Arbeiter-Zeitung).
8
Dr. Viktor Freiherr von Fuchs (retired President of the House of Representatives, attorney),
Viktor Kienböck (attorney).

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 The Constitutional Court of Austria 247

government officials—had to be reduced, and some judges were therefore

prematurely retired.9
The hearings of the December session of the Reichsgericht in 1918 were
adjourned at the beginning of December.10 The Constitutional Court took up
its public sessions in March 1919. As a national court, the Constitutional
Court could not function as a court of arbitration between the successor
states, as Renner and others (AVA, Justizministerium II—85, Z. 1641–1918)
had suggested. In its initial decisions, the Constitutional Court pronounced
that for lack of legal succession (article 4, section 1 of the Law of 12 Novem-
ber 1918 on the type of State and Government of German-Austria), there
would be no continuity of law with the Reichsgericht. The competence of the
Constitutional Court presupposed that a complaint be addressed to it
directly. The complaints in the years 1919 and 1920 against the infringement
of constitutionally guaranteed political rights concerned prohibitions to
enter, bans of some Land governments (Landesregierungen) on residence
for citizens of other parts of the Republic, and financial claims against the
defunct Empire—or, in legal terms, claims against the “totality of the king-
doms and Länder represented in the Reichsrat,” against imperial-royal
ministries, or against the imperial-royal exchequer (AdR, Verfassungs-
gerichtshof, Karton 1). The Constitutional Court pronounced that its com-
petence extended only to claims against the German-Austrian state or
against one of the Länder within the German-Austrian state. For claims
against the “totality of the kingdoms and Länder represented in the Reichs-
rat,” it regarded itself as competent only if an international treaty (i.e.,
between the successor states) included such a provision, or if the German-
Austrian state declared through a competent authority its involvement in
the legal relationship existing between the applicant and the “totality” (Ver-
fassungsgerichtshof 1920, nr. 6). On 3 May 1919, the State Chancellery gave
such a declaration for German-Austrian citizens. The idea of establishing a
special tribunal of the Constitutional Court for deciding claims of persons
who were not German-Austrian citizens was turned down.11

2. The Constitutional Laws of March 1919

The election of the Constituent National Assembly in February 1919 brought
to an end the first phase of the transition from Monarchy to Republic, a tran-

9
Law of 19 December 1918, StGBl. nr. 134, on the pensioning-off of judges of the Administra-
tive Court. Stenographische Protokolle der Provisorischen Nationalversammlung für
Deutschösterreich, 11. Sitzung (19.12.1918), 437–8, Beilage 113. AdR, Staatskanzlei Z. 172–1919.
10
Neue Freie Presse of 7 December 1918 (nr. 19500), 9: “Aus dem Gerichtssaale. (Das Reichs-
gericht als ‘Liquidierungsgericht.’)” (“Out of the Courtroom. [The Reichsgericht as ‘Court of
liquidation.’]”).
11
Letter of the State Chancellery of 3 May 1919, Z. 2051, to the presidency of the Constitutional
Court (cited in the letter of the State Chancellery to all State Offices of 14 June 1919, Z. 2051/1.
In: AVA, Justizministerium II-85, Staatsamt für Justiz Z. 9045–1919).

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248 Georg Schmitz

sition that had begun in October 1918. Faced with problems between the
Council of State and the National Government (Kelsen 1919b, 48–9), the
Constituent National Assembly abandoned the model employed by the Pro-
visional National Assembly of joining the functions of power, for that had
proved to be a failure. Renner had underestimated the increasing impor-
tance of the Länder that remained within German-Austria. The Constituent
National Assembly returned to the separation of legislation and adminis-
tration, replacing the self-governing bodies (Länder, Kreise) by a division of
legislation between National Assembly and the Assemblies of the Länder.
The Länder were given legislative power.12 This division of legislation was
effected by a reference in article 12 to the Constitutions (Landesordnungen) of
the Monarchy’s Kronländer. For the first time the Constitutional Court
became integrated into the legislative process by means of the power con-
ferred upon it to guarantee the competence of the National Assembly:

Article 15. (1) The national government (Staatsregierung) can appeal to the Constitu-
tional Court the enactments of a Land Assembly (Landesversammlung) owing to
unconstitutionality [ . . . ] within a fortnight of the enactment’s communication
[ . . . ]. The Land government has to be informed of this appeal without delay.
(2) The publication of the challenged bill may take place only after the Constitutional
Court had acknowledged the constitutionality of this enactment. The Constitutional
Court has to decide within a month. (Article 15 of the Law of 14 March 1919, StGBl,
nr. 179, on the representation of the nation)

Between March 1919 and November 1920, the national government

appealed against bills of three different Land assemblies (Landesversamm-
lungen) to the Constitutional Court. The legal proceedings had been initi-
ated, but before the hearings commenced, the national government
withdrew the appeal, as a settlement with the competent Land governments
had been reached.13
This “Constitution of March 1919” also brought about changes to the
“Law on the German-Austrian Constitutional Court”:14

• The function of a Staatsgerichtshof (court in which cases of the

impeachment of the highest state functionaries were to be heard) had
been transferred on 30 October 1918 to a committee of the Provisional
National Assembly consisting of 20 delegates, who, however, had
12
Law of 14 March 1919, StGBl. nr. 179, on the representation of the nation. Law of 14 March
1919, StGBl. nr. 180, on the National Government.
13
Haller 1979, 43, speaks about three cases. Verfassungsgerichtshof 1920, III–IV, and AdR, Ver-
fassungsgerichtshof, Karton 1, Fasz. 3, brings to light, however, only two cases: nr. 18 (Land
Oberösterreich) und nr. 20 (Land Steiermark). The minutes of the national government also
addresses only two cases; however, only one of these is identical to the cases about which the
Constitutional Court speaks (AdR, Protokolle des Kabinettsrates nr. 119 item 9, nr. 132 item 2,
Land Steiermark, and nr. 171 item 17, Land Salzburg).
14
Law of 3 April 1919, StGBl. nr. 212. Stenographisches Protokoll der Konstituierenden Nation-
alversammlung, 8. Sitzung (3.4.1919) 194–5, Beilagen, 116.

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 The Constitutional Court of Austria 249

never assembled.15 Corresponding to the recent separation of powers,

the functions of the Staatsgerichtshof were removed from the commit-
tee of the National Assembly and assigned to the Constitutional Court
(Merkl 1919, 155).
• In cases in which the Constitutional Court had pronounced on the
infringement of a constitutionally guaranteed right, it now had to
rescind the decision or decree. In issuing a new decision or decree, the
authority whose decision or decree had been rescinded was now bound
by the Court’s decision. Unlike the Reichsgericht, the Administrative
Court had exercised this power of cessation since its establishment in
1875 (Bernatzik 1914, 20).
• Owing to the demands of additional functions, the number of members
of the Constitutional Court was increased from eight to twelve and
those of the substitute members from four to six. The members and
substitute members were now appointed by the President of the
National Assembly on the recommendation of the national govern-
ment.16 The transfer of this right to the Standing Sub-Committee (an
institution copied from the Council of State) was a matter under
discussion in the parliamentary committee, but was not realised
(Stenographisches Protokoll der Konstituierenden Nationalversamm-
lung, 8. Sitzung [3.4.1919] 195). Hans Kelsen was one of the addition-
ally appointed members and he was also selected to be one of the
permanent Rapporteurs (Gschließer 1968, 29).

3. The Genesis of the Competence of the Constitutional Court in the

Drafts for the Federal Constitutional Act of 1920
3.1. The Constitutional Court in Renner’s “Basic Principles” and in the Drafts of
Kelsen I–VI
It was to the credit of Karl Renner that the idea of the Reichsgericht was pre-
served within the Constitutional Court. Already at this stage, Kelsen’s
legislative activities transcended simple legal draftsmanship. The legal
arrangement of the Constitutional Court developed in three phases, and it
appears that Hans Kelsen was the impetus behind this development:

• with Kelsen’s drafts I–VI,

• with Kelsen’s draft VII (and, consequently, with the draft of the Social
Democratic Party I),
15
Froehlich 1925, xlix, par. 9 of the decision of the Provisional National Assembly for German-
Austria of 30 October 1918, StGBl. nr. 1, on the Fundamental Institutions of the State
Authority.
16
The Reichsgericht had taken 63 decisions in the year 1917 (Vittorelli 1929, 445), the
Constitutional Court, 70 decisions in the years 1919–1920 (Verfassungsgerichtshof 1920;
Verfassungsgerichtshof 1922).

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250 Georg Schmitz

• with the Second Draft of the Subcommittee of the Committee on Con-

stitutional Affairs of the Constituent National Assembly.

During his stay in St. Germain-en-Laye as head of the Austrian peace-

delegation, a period lasting several months, Renner wrote (probably in May
or June 1919) the section “Reform of the Constitution,” which later became
part of the “Basic Principles of a Political and Economic Program of the
Coalition.” In this paper Renner for the first time propounded the idea that
during the law-making process the totality of the Länder (Council of the
Länder/Länderrat) could appeal a federal bill to the Constitutional Court
(Stourzh 1982, 19; Ermacora 1989, par. 13, 63; Schmitz 1991, par. 13, 197). On
11 October 1919, Renner repeated this proposal of reciprocity between
national state and the Länder without requiring a resolution of the Länder-
rat, in an initial explanation of the draft of a constitution for the state offices.
Renner adopted one of Kelsen’s drafts, but he added a right of each Land to
appeal an already published law to the Constitutional Court.17
Already in January or February 1919,18 Kelsen had written a report on the
“The Position of the Länder in the Future Constitution of German-Austria
with Special Consideration of the Merging of German-Austria into the
German Reich” (Ermacora 1989, 3–17).19 In this report, Kelsen developed dif-
ferent types of possible scenarios for the relation between state and Länder.
In a federal state with additional legislation by the Länder, Kelsen wrote,
there is a need for an Administrative Court or, still better, a Constitutional
Court as a guarantee against Land laws (Landesgesetze) that are contrary to
national law. In this report Kelsen developed an examination by the High
Court of the question as to whether Land laws corresponded to national laws
(ibid., 16). Between May and September 1919, on behalf of Renner, Kelsen
developed two sets of drafts for the Federal Constitutional Act. Kelsen’s
drafts I to III, and IV to V, contained different federalist variants, moving
between those more strongly orientated towards the Länder and those more
strongly orientated towards a federation.20 Kelsen took the prevailing legal
situation as his point of departure, considered various lawyers’ criticisms of
the Reichsgericht, and developed from these and other factors the constitu-
tional jurisdiction of the Federal Constitutional Act of October 1920. In par-
ticular, in Kelsen’s drafts I–VI the following competences were taken up:

• Decision of conflicts between and among the Länder as well as between

one Land and the federation.
17
Zwischenstaatsamtliche Konferenz on 11 October 1919 (Ermacora 1989, 74, 78).
18
For the time of origin: Schmitz 1981, 32; Stourzh 1982, 11.
19
In the published version of his report, Kelsen (1920) took into account the new competences
of the Constitutional Court.
20
As terminology, “federation” is to be preferred to “federal government.” For in Austria
the federation (Bund) and the Länder are legal persons, whereas the federal government
(Bundesregierung) is an organ of the federation qua legal person.

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 The Constitutional Court of Austria 251

• Decision of conflicts of competence between courts and administrative

authorities, among the Land governments and between a Land govern-
ment and the federal government.
• Examination of whether ordinances issued by a federal authority or by
a Land authority were contrary to law if proposed by a court, the federal
government, or a Land government. In 1914 in the “Commission for
promotion of the reform of administration” Edmund Bernatzik had
suggested such a “Verordnungsgericht” (a central court for examining
ordinances) once again (Bernatzik 1914).
• Examination of the question as to whether (already published) Land
laws were contrary to a federal law if proposed by the federal govern-
ment. Kelsen thereby abandoned the provisions of the Law of 14 March
1919. In place of a regulation intended to prevent an unconstitutional
Land law from being passed, there was now to be a regulation permit-
ting an already published Land law to be rescinded in the event that it
did not comply with federal law. The principle “federal law overrides
Land law” emphasized this theory and beginning with his draft II,
Kelsen included it in all his drafts (Schmitz 1981, 138–9; Ermacora 1990,
68–9). “Federal law overrides Land law” gave expression to the idea
of a “hierarchical construction of the legal system” (Stufenbau der
Rechtsordnung, Adolf J. Merkl). Thus, Land law has to correspond to
federal law, just as an ordinance has to correspond to statutory law
(Kelsen 1914, 213–14, 398).21 And Kelsen “decreed” that not only the
federal government but also a court could appeal the incompatibility
of a Land law with a federal law (Schmitz 1981, 212–3; Ermacora 1990,
138–41).
• Decisions responding to challenges to elections (to the popular repre-
sentative body of the Federal Parliament and of the Federal President)
and upon the loss of a mandate of a delegate.
• Impeachment of all the highest-ranking authorities of the federal state
and the Länder took the place of a regulation of questions of the
impeachment of members of the ministerial council in the Austrian half
of the Austrian-Hungarian Monarchy (Kelsen, Froehlich and Merkl
1922, 272–3).

Among the competences of the Constitutional Court, the appeal from an

infringement of a constitutionally guaranteed right was missing. It is to be
inferred that this competence was to be assigned to the Administrative Court,
a proposal made by Edmund Bernatzik in 1914, which Kelsen obviously
adopted (Bernatzik 1914, 19). The number of members and substitute
members of the Constitutional Court increased once again. According to
21
Weyr 1913, 51, expressed the criticism that “Austrian legal practise recognises an uncondi-
tional superiority of Reich legislation only” and it appears as if the prevailing theory of
Austrian constitutional law did not comprehend “the idea of a law’s being unconstitutional.”

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252 Georg Schmitz

Kelsen’s draft I, the judges were to be elected for the duration of the legisla-
tive period, but draft II, however, called for a lifetime appointment. President,
Vice-President and seven members, along with four substitute members,
were to be elected by the popular representative body of the Federal Parlia-
ment, and seven members and four substitute members by the Federal
Council (Bundesrat, chamber of representation of the Länder in the Federal
Parliament).

3.2. The Influence of Michael Mayr on the Competence of the Constitutional Court
After the ratification of the Peace Treaty of Saint Germain-en-Laye, in
October 1919, Renner reshuffled his cabinet. The Christian Socials nomi-
nated Professor Michael Mayr to “work on constitutional and administra-
tional reform.” In the preceding months, he had served as chairman of a
“committee on constitutional affairs” in which the Christian Socials dis-
cussed and specified the demands they would make of a future constitution.
One of the results of this committee was that the Länder, too, had to be con-
sulted about their expectations where the new constitution was concerned.
After consultation with Renner, between December 1919 and February 1920
Mayr visited all Land governments. By mutual agreement, Kelsen and his
colleagues in the Department for Constitutional Reform integrated the
requirements of the Länder into one of Kelsen’s drafts. For political reasons,
this draft was called “Mayr’s private draft” (later: “First pre-draft of a
Federal Constitution”; Schmitz 1991, 95–116).
On this most difficult question of the relation between federal law and
Land law and on the competence of the Constitutional Court resulting there-
from, Mayr adopted Kelsen’s conception. He defended the maxim “federal
law overrides Land law” as a means of interpretation despite the objections
voiced by representatives of his own party (Schmitz 1991, 101, 107). Ignaz
Seipel, serving in December 1919 on the Committee of the Christian Socials
on constitutional affairs, opposed the principle as a dogma of the Social
Democrats (ibid., 101). Franz Rehrl (Vice-Governor of Salzburg) viewed the
principle as conflicting with the assignment of competences by the Länder
to the federation (Ermacora 1989, 103–4) in the introduction to the articles
on the competences of the federation, which were to be omitted in the drafts
of the Constitutional Subcommittee of the National Assembly. Stephan
Falser (a former chairman of a tribunal of the Administrative Court, who in
December 1918 had retired and was now consultant of the Tyrolean Land
government) demanded on the basis of the equal status of the federation
and the Länder “that the Land as well ought to have the opportunity to appeal
a national law to the Constitutional Court where it is thought that the
national law has intruded upon the competence of the Land” (ibid., 113;
Falser 1919). And, Rehrl added, the principle would be unnecessary if an
examination of the constitutionality of federal laws and Land laws were pos-
sible (Ermacora 1990, 532).
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 The Constitutional Court of Austria 253

The results of Mayr’s meetings with officials of the Land governments

served as the topic of a discussion, on 31 January 1920, between Mayr,
Kelsen, Froehlich, Merkl and other colleagues in the Department for Con-
stitutional Reform in the State Chancellery. It was observed that the princi-
ple “federal law overrides Land law” had been rejected by representatives
of the Christian Social Party and of the Pan German party of the Länder. In
Kelsen’s view, however, nothing would change if the principle were simply
omitted. The participants in the discussion therefore agreed to a compro-
mise, namely: “In case of doubt, federal law has priority over Land law.” The
authorisation of Land governments to appeal a federal law was not discussed
(Schmitz 1991, 105–13).22 Rudolf Hermann, expert on constitutional reform
in the State Office of Justice (Ermacora 1989, 54, note 8), wrote in his report
of 26 February 1920 of a discussion in the State Chancellery on Mayr’s
private draft that he had intervened on the question of appealing a Land law
where it is contrary to federal law:
With regard to paragraph 2 [of article 71], the Office of Justice invited attention to
the fact that in the end, only the unconstitutionality of a law or of an ordinance could
be cause for an appeal. (Being unconstitutional means that the authority exceeds the
lawmaker’s competence, not that the content is problematic.) The unpleasant term
“being contrary to federal law” should be avoided. The correctness of the objection
was granted by the State Chancellery, which stressed the importance of the fact that
an appeal had generally to stem from a law or ordinance that stood in contradiction
to federal law, not being sure whether the principle “federal law has priority over
Land law” could be implemented. The right of appeal should therefore be drawn as
widely as possible. (Ermacora 1989, 170–1)

To summarize: In November 1919, Renner had addressed the question of

granting the federation and the Länder equal status in the procedures of the
Constitutional Court. The Christian Social Party’s experts on constitutional
questions demanded that the federation and the Länder be granted equal
status along with the abrogation of the principle “federal law overrides Land
law.” Kelsen and, with him, the Christian Social Mayr, at the end of January
1920, still considered the principle indispensable. Thus, Mayr’s private draft
held to an unequal status of the federation and the Länder on this point and
to the review criterion of “being against federal law” (Schmitz 1981, 301;
Ermacora 1990, 408).

3.3. Kelsen’s Draft VII and the Drafts of the Political Parties
As an alternative to Mayr’s private draft, Kelsen worked up his draft VII.23
This draft is proof of the extent to which Kelsen was engaged in the ques-
tion of constitutional review. This particular topic shows, too, how he
22
I owe the knowledge of this draft to Gerald Stourzh.
23
“Entwurf Mayr” (Schmitz 1981, 115–307) and “Ministerialentwurf” (Ermacora 1990, 244–74).
The term “Kelsen’s draft VII” was suggested by Gerald Stourzh (Stourzh 1982, 24, note 64;
Schmitz 1991, 116).

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254 Georg Schmitz

shaped the idea through a constant evaluation of the political developments.

He thought in terms of alternatives and despite his systematic thinking, he
was able to change regulations like modules.
According to this draft, the Land governments ought to be empowered to
appeal, to the Constitutional Court, against a federal law deemed unconsti-
tutional. Since Kelsen’s draft VII adhered to the principle “federal law over-
rides Land law,” the previous connection between this principle and the
appeal to the Constitutional Court, from laws deemed unconstitutional, was
raised. For the first time, Kelsen accepted the idea of considering whether
laws were in accordance with the constitution. Why had this not already
been considered in Mayr’s private draft? We can only assume that Kelsen,
in draft VII, wanted to address the case on which the Christian Socials and
Pan Germans had proven to be successful. The term “Constitutional Court,”
in Mayr’s private draft, had now replaced “Federal Constitutional Court”
(Schmitz 1981, 301).
Where the competence of the Constitutional Court is concerned, the drafts
of the political parties contained no innovations. They reflected at all times
the state of the discussion. The Christian Social draft I (May 1919) provided
for a Constitutional Court dealing with conflicts between the federation and
the Länder and provided, too, that it act in the capacity of a Staatsgerichtshof.
Election results were to be scrutinized by the Administrative Court (Erma-
cora 1990, 550–61).
The Pan-German draft (April 1920) contained a more extensive list of com-
petences of the Constitutional Court: Decisions in cases of a conflict of com-
petence, appeals against Land laws, federal ordinances and Land ordinances
deemed unlawful, the scrutiny of elections, the loss of a seat, impeachment
against highest authorities, and claims by a Land against the federation or
the latter against a Land. The Federal President was to appoint the President
and the Vice-President of the Constitutional Court and each of the two
chambers of the Federal Parliament was to elect one-half of the judges (ibid.,
603–27).
The Social Democrat drafts I (April 1920) and II (July 1920) were based on
Kelsen’s draft VII, which the general public was not acquainted with. They
therefore represented genuine innovations. Both drafts adopted the princi-
ple “federal law overrides Land law” as well as the authorization of a Land
government to appeal against a federal law deemed unconstitutional (ibid.,
571–602). In the negotiations with the Christian Socials (until June 1920),
Renner endorsed the Social Democrat draft I, which on the question of an
authorization of the Land governments to appeal against a federal law cor-
responded, owing to Kelsen’s draft VII, to Renner’s proposal of November
1919.
The Christian Social draft II (June 1920), a version of the Christian Social
draft I revised after discussions with the Social Democrats, also included a
greater spectrum of competences of the Constitutional Court: the examina-
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 The Constitutional Court of Austria 255

tion of the constitutionality of laws and the lawfulness of ordinances, quar-

rels between the federation and the Länder, conflicts of competence, scrutiny
of elections, impeachment of the highest authorities, and the infringement
of constitutionally guaranteed rights. The Christian Social draft II described
the Constitutional Court as the “highest custodian of the constitution and
arbitrator between the federation and the Länder” (ibid., 569–70).

4. The Debates in the Committee on Constitutional Affairs of the

Constituent National Assembly
With the breakdown of cooperation between the Social Democrats and the
Christian Socials at government level (June 1920), the debate within the
national government on the Constitution was broken off, too. In this situa-
tion the political parties decided to work up a definitive draft of a Federal
Constitutional Act in the Committee on Constitutional Affairs of the Con-
stituent National Assembly (July 1920). The minutes and the two drafts of
the Subcommittee of the Committee on Constitutional Affairs reflected not
only the arguments between the Social Democrats, the Christian Socials and
the Pan-Germans on the real issues, but also a struggle between the experts
in their search for precise wordings and consistent formulations (Ermacora
1967, 367–9, 420–1, 445, 494–8).
At the request of the Social Democrats, Robert Danneberg and Otto Bauer,
the “First Draft of the Subcommittee of the Committee on Constitutional
Affairs” included, for the first time, federal competence on matters of the
“Federal Constitution” (ibid., 275, 297) and therefore competence for the
allocation of competence between the federation and the Länder (“compe-
tence-competence”). The Subcommittee dealt repeatedly with the principle
“federal law overrides Land law.” After his draft VII (not published), it came
as no surprise that Hans Kelsen, as the Subcommittee’s expert, agreed, on
17 August 1920, to the demand of Pan-German Heinrich Clessin that the
clause “federal law overrides Land law” should be omitted. In justifying his
new opinion, Kelsen argued that in the version of the clause that ran “In
case of doubt federal law has priority over Land law,” the words “in case of
doubt” were incorrect. It would be better simply to omit the clause “federal
law overrides Land law.” And, he added, the principle would be secured by
judicial examination (ibid., 302–3). In the First Draft of the Subcommittee,
the principle was missing (Ermacora 1990, 666). On 13 September 1920,
Robert Danneberg spoke on behalf of the principle once again. The Social
Democrats, however, would be in the minority on this point. Thus, Otto
Bauer, speaking in his capacity as chairman, argued against voting on this
motion, in order to avoid the impression that a negative vote could be
understood as saying that federal law did not override Land law. It was not
the substance but rather its formulation in the Constitution that was in ques-
tion. Remarkably, Bauer then continued as follows: A law could be rescinded
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256 Georg Schmitz

by the Constitutional Court owing to a lack of competence on the part of

the law-making body—and not, then, on the basis of competing legislation
between the federation and the Länder. He also referred to the competence
of federal legislation (Ermacora 1967, 427). The politicians’ arguments for
and against the principle that federal law override Land law led to an exam-
ination, new in character, of whether or not laws correspond to the consti-
tution. The Subcommittee had thereby taken leave of the prevailing theory
of a federal system (Max Layer, in: Ermacora 1989, 221; Wiederin 1995, 8–11,
16). Other members of the Subcommittee expected that lex posterior derogat
priori would be the consequence of eliminating the principle that “federal
law overrides Land law.” For that very reason, it is doubtful whether all par-
liamentarians were aware of this new dimension of constitutional review
(Öhlinger 1985, 181). The report of the Committee on Constitutional Affairs,
however, had emphasized this new dimension: “Constitutional Court and
Administrative Court are intended to serve, so to speak, as the supports that
join together the dualistic construction of federation and Länder into a unit
at a higher level and harmonize the two organizations, whose functioning,
side by side, becomes all too easily disconnected and anarchic” (Ermacora
1967, 556). This sentence had been formulated by Adolf J. Merkl in his capac-
ity as a member of the Department for Constitutional Reform and as one of
those who took the minutes of the Subcommittee of the Constitutional
Committee (Grussmann 1989, 28–9).
After four law professors had given their expert advice on the “First Draft
of the Subcommittee of the Committee on Constitutional Affairs,” a number
of “rather far-reaching alterations in the content, and improvements of legal
technique” were presented, by Kelsen and the Department for Constitutional
Reform, to the Subcommittee (Ermacora 1967, 492–8). A document of the
State Chancellery with these amendments in place shows the name “Kelsen”
in longhand (AdR, Staatskanzlei, Karton 251, Mappe 16). In the Subcom-
mittee, Kelsen also sought to justify several amendments. The improvements
were incorporated into the “Second Draft of the Subcommittee.”
In the course of the discussion, the phrasing of the regulations was as
follows:

Jurisdiction on Claims
Kelsen’s drafts I–VII as well as Mayr’s private draft contained the follow-
ing wording: “The Constitutional Court in Vienna will decide on all
legal disputes between the Länder, as well as between a Land and the
federation.”
This seemed to be far simpler than the paraphrase of the competence of
the Reichsgericht. But Max Layer, one of the professors who had been asked
for their comments on the First Draft of the Subcommittee, had suggested
the following supplement: “claims that have been withdrawn from the juris-
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 The Constitutional Court of Austria 257

diction of the courts.” The final wording of the Federal Constitutional Act
of 1920 ran: “Article 137. The Constitutional Court pronounces on all claims
against the federation, the Länder or the local counties not settled by the
ordinary processes of law.”

Jurisdiction on Competence
Kelsen’s drafts, from draft II onwards, contained the following regulation:

It [the Constitutional Court] also decides: conflicts of competence

• between courts and administrative authorities of the federation or of the
Länder,
• among Land governments as well as between a Land government and the
federal government. (Schmitz 1981, 298–9; Ermacora 1990, 236–7).

In Mayr’s private draft, the competence to decide conflicts of competence

“between the Administrative Court and all others courts” was added.
Because of that, the so-called Austrägalsenat became unnecessary. The
Austrägalsenat decided conflicts of competence between the Administrative
Court and the Constitutional Court. It met once a year, in 1919 and 1920
(Vittorelli 1929, 435; Hugelmann 1925, 495–6).24
In the Federal Constitutional Act of 1920, the regulation in question ran
as follows.

Article 138.
The Constitutional Court also pronounces on conflicts of competence:
a) between courts and administrative authorities;
b) between the Administrative Court and all other courts, in particular, between
the Administrative Court and the Constitutional Court itself;
c) among the Länder as well as between a Land and the federation.

Examination of the Illegality of Ordinances

The Provisional Constitution of 1918 contained a regulation of the legal
system of the Monarchy according to which the courts had to examine the
validity of ordinances. In the event that a court should find an ordinance to
be in conflict with the law, the court could treat it as non-existent (Merkl
1919, 110–11). Kelsen’s drafts departed from this “decentralized examination
of ordinances” (Walter 1984, 188–90) and created the Constitutional Court
as, so to speak, a centralized “ordinances-court” (Neumann-Ettenreich 1921,
74). Apart from the question of a unified jurisdiction, the cessation of an
ordinance should have effects reaching beyond the individual case. If a court
has doubts as to whether an ordinance complies with the law, the court must
24
The Austrägalsenat consisted of four members each of the Administrative Court and the
Constitutional Court (until 1918 the Reichsgericht, RGBl nr. 37/1876) under the chairmanship
of the President of the Supreme Court of Justice or his deputy.

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258 Georg Schmitz

file an application with the Constitutional Court for the cessation (Kassation)
of this ordinance (Schmitz 1981, 212–13, 298–9; Ermacora 1990, 138–41,
236–7). The same right was given to the federal government in reference to
ordinances of a Land authority and to each Land government in reference to
ordinances of federal authorities.
Along with the power of the courts, of the federal government and of the
state governments to file such an application, the subcommittee added the
power to conduct an ex officio examination (Ermacora 1967, 495; Ermacora
1990, 810–13). This was because the Constitutional Court would have to
apply such an ordinance in a pending suit.

Examination of Whether Laws are Contrary to the Constitution

The Provisional Constitution of 1918 had also adopted another regulation
of the Monarchy that the courts were not entitled to examine the validity of
duly published laws.25 This corresponded to the notion that the Provisional
National Assembly was to have an exclusive lawmaking power.
The further development of this competence has already been shown. As
in the case of the examination of ordinances, in its second draft the Sub-
committee added an ex officio examination of laws. A suggestion of Kelsen’s
that one of the permanent Rapporteurs be nominated as federal solicitor
general (Bundesanwalt) was set aside. The Subcommittee also declined the
adoption of an ex officio examination of the unconstitutionality of laws
without any pending cause (Ermacora 1967, 420–1, 445; Ermacora 1990,
812).26

Jurisdiction on Elections and Loss of Mandate to a Legislative Body

At the time of the Monarchy, decisions on elections were divided among
three institutions: An executive authority (Statthalterei or Landesregierung)
compiled a list of candidates that had been elected, the parliament in ques-
tion (House of Representatives, a Kronland’s Diet) passed on objections to
this list, and the Reichsgericht pronounced upon an infringement of a con-
stitutionally guaranteed political right. In the Republic, jurisdiction over
elections had initially been conferred on the Administrative Court,27 but in
February 1919, a separate Court of Elections was established for election to

25
§ 10 of the Basic Law of 22 November 1918, StGBl. nr. 38, on judicial power. Article 7 of the
Basic Law of 21 December 1867, RGBl. nr. 144, on judicial power.
26
Kelsen made a similar proposal with regard to the Administrative Court (Schmitz 1981, 292,
note to article 157 Kelsen’s draft II). Kelsen 1942, 197. I owe the knowledge of this study to
Stanley L. Paulson.
27
§ 39 of the Law of 18 December 1918, StGBl. nr. 115, on the election rules for the Constituent
National Assembly.

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 The Constitutional Court of Austria 259

the Constituent National Assembly. The President of the Administrative

Court and three members from each of the courts—the Constitutional Court,
the Administrative Court and the Supreme Court of Justice—formed the
Court of Elections, which was also competent to pass on an application by
the Constituent National Assembly with regard to the loss of a seat by one
of its members.28 This Court of Elections was established, for the members
of the Supreme Court of Justice and of the Administrative Court had man-
ifested a tendency in the direction of a more formal jurisdiction—this was
Kelsen’s view—or, as Renner put it, professional judges were not very well
acquainted with “the election business” (Kelsen 1919a, 17; AdR, Staatsrat-
sprotokolle, nr. 69 [22.1.1919, Verhandlungsprotokoll]). The political parties
therefore wanted to exert influence on the composition of this court as they
had in the case of the Constitutional Court. In Kelsen’s drafts I–VI, the Con-
stitutional Court was intended to serve as a court for federal elections.
Beginning with Mayr’s private draft, it was contended that the Constitu-
tional Court should also be competent as a Court of Elections, namely, for
challenges to elections of Landtage and of other popular representative
bodies and for an application respecting the loss of a seat by one of its
members. In the Second Draft of the Subcommittee, the elections to the
Bundesrat were added. As a result, the Constitutional Court was created as
a centralized Court of Elections.

Impeachment of the Highest Authorities (Staatsgerichtsbarkeit)

In his report on “The Position of the Länder in the Future Constitution of
German-Austria with Special Consideration of the Anschluss of German-
Austria to the German Reich” (January/February 1919), Kelsen saw it as pos-
sible that either a centralized Administrative Court or the Constitutional
Court could have the function of a Disciplinary Court of the national state
(Ermacora 1989, 3–17, in particular 14–7).
The drafts for the Federal Constitutional Act assigned the jurisdiction of
a Staatsgerichtshof to the Constitutional Court, just as Renner had planned in
his “draft of a provisional constitution.” Because of the intended federal
structure of the national state, Kelsen’s drafts as well as all those drafts based
on Kelsen’s drafts included other high-ranking authorities of the federal
state and the Länder in responsibilities apart from the responsibilities of
members of the federal government: the Federal President, the members of
the Land governments and the Landeshauptmann as representative of the indi-
rect federal administration. Kelsen’s drafts I–VI and Mayr’s private draft
provided for the forfeiture of office and the possible forfeiture of political

28
Law of 6 February 1919, StGBl. nr. 90, on the Court of Elections for the elections of the
Constituent National Assembly.

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260 Georg Schmitz

rights. Kelsen’s draft VII toned down the consequences: The forfeiture of
political rights is a consequence of particularly aggravating circumstances.
In the First Draft of the Subcommittee, the forfeiture of political rights was
temporary. The “Linzer draft,” the revised version of Mayr’s private draft,
contained the regulation that the Constitutional Court, in cases of minor
legal contraventions, can confine itself to the statement that the law has been
contravened. The Second Draft of the Subcommittee did not require a
particular degree of responsibility as a condition for bringing a charge
(Ermacora 1967, 496–7; Ermacora 1990, 814–8).

Special Administrative Court (Jurisdiction on Constitutionally Guaranteed Rights)

The competence of the Reichsgericht to decide upon “an infringement of con-
stitutionally guaranteed political rights” was assigned to the Constitutional
Court in January 1919. According to Mayr’s private draft and Kelsen’s draft
VII, everyone ought to be entitled to file a complaint. Unlike the situation
under the Monarchy and in the period of the German-Austrian Constitu-
tional Court, Austrian citizenship was no longer a condition for a complaint,
for this condition only made sense in connection with political rights. In
view of the ambiguity of the term “political right,” it was omitted in the
Second Draft of the Subcommittee (Bernatzik 1914, 13–8; Ermacora 1967,
368, 497; Ermacora 1990, 818). The Constitutional Court—in contrast with
the Reichsgericht—was now competent to rescind an act of law.

Jurisdiction on International Law

It was Kelsen’s draft VII that included, for the first time, a regulation accord-
ing to which “proceedings owing to offences against international law” had
to be assigned to the Constitutional Court by federal law (article 73, section
4; Schmitz 1981, 209; Ermacora 1990, 260). In the First Draft of the Subcom-
mittee, the wording was slightly changed. In the Second Draft, competence
was no longer included under the heading “The jurisdiction of the Federa-
tion.” Rather, it appeared under “The guarantees of the Constitution and of
the Administration” and was formulated in a more general way: “The Con-
stitutional Court pronounces judgment on contraventions of international
law in accordance with the provisions of a special federal law” (Ermacora
1990, 820).
This jurisdiction was a consequence of article 11, section 3, of the Linzer
draft (“Generally recognized rules of international law are regarded as inte-
gral parts of federal law”), which, in turn, followed article 4 of the German
Reichsverfassung of 11 August 1919 (“Constitution of Weimar”). Thanks to
this competence of the Constitutional Court, there was no longer a possi-
bility that offences against international law might be prosecuted in crimi-
nal courts (Ermacora 1990, 304; Kelsen, Froehlich and Merkl 1922, 75, 280).
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 The Constitutional Court of Austria 261

Enforcement of Judgments
Claims enforced by judgments of the Constitutional Court are to be imple-
mented by the ordinary courts. The enforcement of other judgments is
incumbent on the Federal President.

Composition of the Constitutional Court

The idea of a constitutionally fixed number of members of the Constitutional
Court was abandoned in the Second Draft of the Subcommittee. Rather:
“The Constitutional Court consists of a President, a Vice-President, and the
number of members and substitute members deemed necessary.”
Contrary to the idea of Otto Bauer, namely, that the members of the Con-
stitutional Court ought to be appointed in proportion to party strength on the
basis of proportional representation, and that there be special qualifications
for being a judge, which would apply to some members of the Court, Kelsen
pleaded for maintaining the existing state of affairs. The President, the Vice-
President, and half of the members and substitute members were to be elected
by the National Council (Nationalrat, directly elected chamber of the Federal
Parliament), one half of the members and substitute members by the Federal
Council (Bundesrat) for their lifetime. In the Federal Constitutional Act, deter-
minations respecting the rank of president and vice-president, respecting the
judges, serving in an honorary capacity, and respecting the election of per-
manent Rapporteur, were forgone (Ermacora 1990, 820–2).
On 10 October 1920, the Constituent National Assembly passed the
Federal Constitutional Act. With the first meeting of the National Council,
on 10 November 1920, the Federal Constitutional Act became effective and
the existing “German-Austrian Constitutional Court” was transformed into
its new constitutional framework with considerably extended competence.29

5. The Complexity of a Political Procedure

The question of the originator of the Austrian Constitutional Court fails to
reflect the complexity of the political situation at hand, and is thus the wrong
question. In many cases a decision taken on some aspect of the Court is the
result of a political compromise.
In 1919 Kelsen shared the opinion of a number of law professors, namely,
that almost all the powers of the Reichsgericht or the Constitutional Court
could be transferred to the Administrative Court.30 It was no accident that
Renner, a politician, intervened with an eye to establishing a Constitutional
29
§§ 39 and 40 of the Constitutional Law of 1 October 1920, BGBl. nr. 2, on the transition to the
Federal Constitution.
30
Hans Kelsen “Die Stellung der Länder in der künftigen Verfassung Deutschösterreichs mit
besonderer Berücksichtigung des Anschlusses Deutschösterreichs an das Deutsche Reich”
(Ermacora 1989, 3–17, in particular 14–7).

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262 Georg Schmitz

Court. He found attractive the idea that certain disputed issues could be
resolved by judges, and he referred in a general way to the system of the
United States (Haller 1979, 42, note 133). Renner had, however, reservations
about professional judges. The procedures of examination utilized in the
Constitutional Court were of great concern to Parliament, too. Thus, the
judges of the Constitutional Court were—and still are—elected by means of
a political procedure. Kelsen himself once called the Constitutional Court a
political court on the ground that its competences were of “special political
importance” (Kelsen 1923, 189).
Still, as far as the implementation of provisions on constitutional review
was concerned, Kelsen’s drafts I–VI, and in particular Kelsen’s draft VII,
support the assumption that Kelsen was the draftsman of the Constitutional
Court; the wording of the provisions in question was his. Kelsen did not
confine himself to rewriting the political instructions of Renner, of Mayr, and
of the Subcommittee in systematically and legally adequate and precise
terms. It is also of great significance here that Kelsen managed the “Consti-
tutional Court” project by constantly evaluating ongoing political develop-
ments. The critical core was the relation between federal law and Land law
and the equal status of the federal state and the Länder in the constitutional
review of laws. Kelsen had initially committed himself to the German theory
of federalism, a system of subordination as between federal law and Land
law (Wiederin 1995, 12). The suggestions of Stephan Falser and Rudolf
Hermann reflected this scheme. As a result of the pressure stemming from
the discussions between the politicians of the national state and the politi-
cians of the Länder concerning the principle “federal law overrides Land law”
and the equal status of federal government and Land governments before
the Constitutional Court, Kelsen was obliged to depart from the traditional
model of the federal state and to develop a new theory (Kelsen 1927, 166).
In this respect, too, the genesis of the Federal Constitutional Act 1920 was a
political rather than a theoretical undertaking. Still, as Adolf J. Merkl once
put it, constitutional review was “without doubt the most original idea of
the Federal Constitution” (Schäffer 1990, 204).

University of Vienna
Department of Economic and Social History
Dr.-Karl Lueger-Ring 1
A-1010 Vienna
Austria
E-mail: georg.schmitz@univie.ac.at

Abbreviations
AdR: Österreichisches Staatsarchiv, Archiv der Republik.
AVA: Österreichisches Staatsarchiv, Allgemeines Verwaltungsarchiv.

© Blackwell Publishing Ltd 2003.

 The Constitutional Court of Austria 263

References

Berchtold, Klaus, ed. 1967. Österreichische Parteiprogramme 1868–1966. Vienna: Verlag

für Geschichte und Politik.
Bernatzik, Edmund. 1914. Entwürfe von Novellen zum Staatsgrundgesetze vom 31.
Dezember 1867 über die Einsetzung eines Reichsgerichtes und zum Gesetze vom
18. April 1869, R. G. Bl. Nr. 44, betreffend die Organisation des Reichsgerichtes,
das Verfahren vor demselben und die Vollziehung seiner Erkenntnisse. (Samt
Motiven). In Dritter Jahresbericht der Kommission zur Förderung der Verwaltungsre-
form. Beilagen 3 (ad A, Umschlag 2). Vienna: Hof- und Staatsdruckerei.
Brauneder, Wilhelm. 1991. Karl Renners “Entwurf einer provisorischen Verfassung”:
ein vorläufiger Bericht. In Staatsrecht in Theorie und Praxis. Festschrift Robert Walter
zum 60. Geburtstag. Ed. Heinz Mayer, 63–95. Vienna: Manz.
Enderle-Burcel, Gertrude and Michaela Follner. 1997. Diener vieler Herren. Biographis-
ches Handbuch der Sektionschefs der Ersten Republik und des Jahres 1945. Vienna:
Dokumentationsarchiv des österreichischen Widerstandes.
Ermacora, Felix, ed. 1967. Quellen zum Österreichischen Verfassungsrecht (1920). Die
Protokolle des Unterausschusses des Verfassungsausschusses samt Verfassungsentwür-
fen. Vienna: Berger.
——— . 1989. Die Entstehung der Bundesverfassung 1920. Dokumente der Staatskanzlei
über allgemeine Fragen der Verfassungsreform. Vienna: Braumüller.
——— . 1990. Die Entstehung der Bundesverfassung 1920. Die Sammlung der Entwürfe
zur Staats- bzw. Bundesverfassung. Vienna: Braumüller.
——— . 1992. Buchbesprechung. Österreichische Juristen-Zeitung 16: 560.
Falser, Stephan. 1919. Der Tiroler Entwurf einer Bundesverfassung für die Republik
Österreich. Neue Freie Presse, nr. 19876 (December 28, 1919).
Froehlich, Georg. 1925. Die Verfassung der Republik Österreich von deren Entste-
hung bis zum Inkrafttreten des Bundes-Verfassungsgesetzes. (Ein historisch-
systematischer Überblick). In Die österreichischen Verfassungsgesetze des Bundes
und der Länder mit den Ausführungs- und Nebengesetzen und Erkenntnissen des
Verfassungs- und Verwaltungsgerichtshofes. Nach dem Stande vom 1. September 1924.
Ed. Ludwig Adamovich and Georg Froehlich, xvii–clviii. Vienna: Österreichische
Staatsdruckerei.
Grussmann, Wolf-Dietrich. 1989. Adolf Julius Merkl. Leben und Werk. Vienna:
Manz.
Gschließer, Oswald. 1968. Die Verfassungsgerichtsbarkeit in der Ersten Republik. Die
Präsidenten Dr. Paul Vittorelli und Dr. Ernst Durig. In Hundert Jahre Verfassungs-
gerichtsbarkeit. Fünfzig Jahre Verfassungsgerichtshof in Österreich. Ed. Felix Ermacora,
Hans Klecatsky and René Marcic, 21–43. Vienna: Europaverlag.
Haller, Herbert. 1979. Die Prüfung von Gesetzen. Ein Beitrag zur verfassungsgerichtlichen
Normenkontrolle. Vienna: Springer.
Hans Kelsen-Institut. 1974. Hans Kelsen zum Gedenken. Vienna: Europaverlag.
Hugelmann, Karl. 1915. Das Reichsgericht und das Abgeordnetenhaus. In Karl
Hugelmann, Historisch-politische Studien. Gesammelte Aufsätze zum Staatsleben des
XVIII. und XIX. Jahrhunderts, insbesondere Österreichs, 323–6. Vienna: Roller.
——— . 1925. Das österreichische Reichsgericht (Entstehung, Organisation und
Wirksamkeit). Zeitschrift für öffentliches Recht 4: 458–538.
Jellinek, Georg. 1885. Ein Verfassungsgerichtshof für Österreich. Vienna: Hölder.
Kelsen, Hans. 1914. Reichsgesetz und Landesgesetz nach österreichischer Verfas-
sung. Archiv des öffentlichen Rechts 32: 202–45, 390–438.
——— . 1919a. Die Verfassungsgesetze der Republik Deutschösterreich. Part 3. Vienna:
Deuticke.

© Blackwell Publishing Ltd 2003.

264 Georg Schmitz

——— . 1919b. Die Organisation der vollziehenden Gewalt Deutschösterreichs nach

der Gesetzgebung der konstituierenden Nationalversammlung. Zeitschrift für
öffentliches Recht 1: 48–60.
——— . 1920. Die Stellung der Länder in der künftigen Verfassung Deutschöster-
reichs. Zeitschrift für öffentliches Recht 1: 98–122.
——— . 1923. Verfassungs- und Verwaltungsgerichtsbarkeit im Dienste des Bun-
desstaates, nach der neuen österreichischen Bundesverfassung vom 1. Oktober
1920. Zeitschrift für Schweizerisches Recht 42: 173–217.
——— . 1927. Die Bundesexekution. Ein Beitrag zur Theorie und Praxis des Bun-
desstaates, unter besonderer Berücksichtigung der deutschen Reichs- und der
österreichischen Bundes-Verfassung. In Festgabe für Fritz Fleiner zum 60. Geburt-
stag: 24. Januar 1927. Ed. Zaccaria Giacometti, 127–87. Tübingen: Mohr.
——— . 1942. Judicial Review of Legislation. A Comparative Study of the Austrian
and the American Constitution. Journal of Politics 4: 183–200.
Kelsen, Hans, Georg Froehlich, and Adolf Merkl. 1922. Die Bundesverfassung vom 1.
Oktober 1920. Die Verfassungsgesetze der Republik Österreich. Vienna: Deuticke.
Merkl, Adolf. 1919. Die Verfassung der Republik Deutschösterreich. Ein kritisch-
systematischer Grundriß. Vienna: Deuticke.
Neumann-Ettenreich, Robert. 1921. Der Verwaltungs- und der Verfassungsgerichts-
hof nach dem Bundesverfassungsgesetze. Zeitschrift für Verwaltung 54: 67–80.
Öhlinger, Theo. 1985. Verfassung—Demokratie—Verfassungsgerichtsbarkeit. In
Sozialdemokratie und Verfassung. Ed. Manfred Matzka, 171–88. Vienna:
Europaverlag.
Renner, Karl. 1902. Der Kampf der Österreichischen Nationen um den Staat 1: Das
nationale Problem als Verfassungs- und Verwaltungsfrage. Vienna: Deuticke.
——— . 1918. Das Selbstbestimmungsrecht der Nationen in besonderer Anwendung auf
Österreich 1: Nation und Staat. Vienna: Deuticke.
Rumpler, Helmut. 1966. Das Völkermanifest Kaiser Karls vom 16. Oktober 1918. Letzter
Versuch zur Rettung des Habsburgerreiches. Vienna: Verlag für Geschichte und
Politik.
Schäffer, Heinz. 1990. Merkls Darstellung und Kritik des B-VG 1920 und seiner
Entwicklung. In Adolf J. Merkl. Werk und Wirksamkeit. Ergebnisse eines Internationalen
Symposions in Wien (22.–23. März 1990). Ed. Robert Walter, 159–211. Vienna: Manz.
Schmitz, Georg. 1981. Die Vorentwürfe Hans Kelsens für die österreichische Bundesver-
fassung. Vienna: Manz.
——— . 1991. Karl Renners Briefe aus Saint Germain und ihre rechtspolitischen Folgen.
Vienna: Manz.
——— . 1998. Das Bild von Josef Jungwirth, “Eine Sitzung des Niederösterreichis-
chen Landtages.” In Tradition im Fortschritt. Hermann Riepl zum 60. Geburtstag. Ed.
Hermann Riepl and Willibald Rosner, 377–407. St. Pölten: Verein für Landeskunde
von Niederösterreich.
Stourzh, Gerald, 1982. Hans Kelsen, die österreichische Bundesverfassung und die
rechtsstaatliche Demokratie. In Die Reine Rechtslehre in wissenschaftlicher Diskus-
sion. Referate und Diskussion auf dem zu Ehren des 100. Geburtstages von Hans Kelsen
von 22. bis 27. September 1981 abgehaltenen Internationalen Symposion, 7–29. Vienna:
Manz.
Verfassungsgerichtshof. 1920. Sammlung der Erkenntnisse des durch das Gesetz vom 25.
Jänner 1919, St. G. Bl. Nr. 48 geschaffenen österreichischen Verfassungsgerichtshofes.
Vol. 1 (1919). Vienna: Österreichische Staatsdruckerei.
Verfassungsgerichtshof. 1922. Sammlung der Erkenntnisse des durch das Gesetz vom 25.
Jänner 1919, St. G. Bl. Nr. 48 geschaffenen österreichischen Verfassungsgerichtshofes.
Vol. 2 (1920). Vienna: Österreichische Staatsdruckerei.

© Blackwell Publishing Ltd 2003.

 The Constitutional Court of Austria 265

Vittorelli, Paul. 1929. Zehn Jahre Verfassungsgerichtshof. Zeitschrift für öffentliches

Recht 8: 435–53.
Walter, Robert. 1971. Die Organisation des Verfassungsgerichtshofes in historischer
Sicht. In Festschrift für Ernst Carl Hellbling zum 70. Geburtstag. Ed. Hans Lentze and
Peter Putzer, 731–81. Salzburg: Fink.
——— . 1984. Die Entstehung des Bundes-Verfassungsgesetzes 1920 in der Konsti-
tuierenden Nationalversammlung. Vienna: Manz.
Weyr, Franz. 1913. Rahmengesetze. Studie aus dem österreichischen Verfassungsrechte.
Vienna: Deuticke.
Wiederin, Ewald. 1995. Bundesrecht und Landesrecht. Zugleich ein Beitrag zu Struktur-
problemen der bundesstaatlichen Kompetenzverteilung in Österreich und Deutschland.
Vienna: Springer.

© Blackwell Publishing Ltd 2003.