Basic principles

The B-VG establishes a hierarchy of the legal system: each legislative act (law, regulation, decision, planning permission, on-the-spot fines, etc.) must have its legal basis in a higher instrument. The body of federal constitutional law is at the top of this hierarchy. The B-VG recognises a small number of basic principles within the body of federal constitutional law, which are of such primary importance that they are offered greater protection against amendment than simple federal constitutional laws (they are also referred to as the “fundamental laws of the constitution”): amendment or removal of these basic principles – the B-VG refers to an “overall amendment of the federal constitution” – is permissible only by referendum.

These basic principles are not, however, expressly listed in the B-VG: they are defined through an interpretation of the constitution by jurisprudence and decisions by the Constitutional Court. Such an overall amendment has been made only once to date: on Austria’s accession to the European Union, which 66% of Austrians supported in a referendum.

• Democratic principle
• Republican principle
• Principle of the federal state
• Separation of power principle
• Principle of the rule of law
• Liberal principle

Democratic principle

Article 1 of the B-VG states that: “Austria is a democratic republic. Its law emanates from the people.” The democratic elements in the Austrian constitution are the:

• Right to vote
• Elected legislative bodies
• Referendum, petition for a referendum, consultation
• Constitutionally guaranteed right to establish political parties

Republican principle

The legal status of the Federal President represents the republican element in the Austrian constitution. His period of office is limited and subject to legal and political responsibility.

Principle of the federal state

Article 2 of the B-VG states that: “Austria is a federal state.” The mark of a federal state is its division into an upper state (federation) comprising several sub-states (nine provinces). Federal State elements in the Austrian constitution are:

• Federation and provinces have their own legislation;
• Federation and provinces have their own executive powers;
• Federation participates in governing the provinces through indirect state administration;
• Federation and provinces each manage their own finances, which means they have their own budget. They can also levy their own duties.

Separation of powers principle

Article 94 of the B-VG states that: “Judicial and administrative powers shall be separate at all levels of proceedings.” In particular, this separation principle means that:

• A state authority must be installed either as a court or as an administrative authority;
• Stages of appeal from a court to an administrative authority (or vice versa) are not permitted.
• Instructions in relations between court and administrative authority are not permitted.
• The law must stipulate clearly whether a certain task is to be dealt with by a court or an administrative authority.

An essential element of the separation of powers is the prohibition against certain offices and functions being held simultaneously by the same public official. Execution is bound by law. It must have a legal foundation.

Principle of the rule of law

Elements of the rule of law in the Austrian constitution are:

• Legality principle: “The entire public administration shall be based on law.” (Article 18(1) of the B-VG). The state may do only that to which it is expressly entitled by law; citizens, however, may do anything other than that which is expressly forbidden by law.

• Principle of legal certainty: Legislation must stipulate (determine) the way in which the state exercises its executive powers. A law which does not contain an appropriate stipulation is unconstitutional.

• System of legal protection: This must guarantee that prejudicial decisions on the part of the state may be contested and their legality examined.

Liberal principle

In Austria, the liberal principle is implemented through fundamental and human rights.

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