Constitution of Austria - Criticism and Reform Proposals

Criticism and Reform Proposals

Probably the most unusual and problematic aspect of Austrian constitutional law is the relative ease with which it can be changed, combined with the fact that a constitutional amendment need not be incorporated into the main text of the B-VG, or for that matter any of the more important parts of the constitutional body, but can be enacted as a separate constitutional act, or even as a simple section within any act, simply designated as "constitutional" (Verfassungsbestimmung).

In reality, all that is needed is a majority of two-thirds in the National Council. Only in the case of a fundamental change ("Gesamtänderung") of the constitution a confirmation by referendum is required. Austria's accession to EU in 1995 was considered such a change.

Over the years, the Austrian legal system became littered with literally thousands of constitutional provisions, split up over numerous acts. The reason for this was in many cases that the legislature, in particular when the governing coalition possessed a two-thirds majority in the National Council (such as between 1945–1966, 1986–1994, 1995–1999, and again since 2007), laws that were considered "constitutionally problematic" were enacted as constitutional laws, effectively protecing them from judicial review by the Constitutional Court. There have even been cases where a provision, that had been previously declared unconstitutional by the competent Constitutional Court, have subsequently been enacted as constitutional laws. Needless to say, the Constitutional Court did and does not like that practice, and has declared that it might, in a not-too-distant future, consider such changes, in their entirety, as "fundamental change" to the constitution, which would require a public referendum.

From 2003 to 2005, a constitutional convention (Österreich Konvent) consisting of representatives of all parties, representatives of all layers of government and many groups of Austrian society have been debating whether and how to reform the constitution. There was no general consensus on a draft for a new constitution, however. Some minor points that were universally agreed upon have yet to be implemented.