Austria's Constitution: May's Historical Reforms

Unlike most countries, Austria has several constitutional documents, with the most important being the Austrian Federal Constitutional Law (Bundes-Verfassungsgesetz). This law was adopted on October 1, 1920, and established Austria as a federal republic with a bicameral parliament. However, the focus of this article is on the May Constitution of 1934, an authoritarian constitution that marked the end of democratic parliamentarianism and party pluralism in Austria.

The Austrian Constitution of 1934

The May Constitution was declared on the basis of a constitutional Enabling Act and began with the words, "In the name of God, the Almighty, from whom all law emanates." The State Council, the Federal Cultural Council, the Federal Economic Council, and the Laender Council were given advisory roles, while the Federal Government was subject to the leadership of the Federal Chancellor.

The May Constitution was preceded by years of increasingly violent political strife and gradual erosion of the rule of law in Austria. The ruling Christian Social Party had turned to full-scale Austrofascism and formally replaced the previous constitution with a new basic law defining Austria as an authoritarian corporate state. This Austrofascist constitution remained in force until Austria was annexed by Nazi Germany in 1938.

The May Constitution was a response to the rise of National Socialism and was intended to prevent the takeover of Austria by Nazi Germany, which had already occurred in German federated states. Engelbert Dollfuß, the Austrian Chancellor, was aware of the situation in Germany and the threat posed by Hitler. The new constitution emphasised the supremacy of divine law over the will of a mortal 'Führer', reflecting a Catholic alternative to modern parliamentary democracy.

The Austrian Federal Constitutional Law

The Federal Constitutional Law was initially drafted following the collapse of Austria-Hungary in 1918 and was promulgated in 1920. It underwent significant revisions in 1925 and 1929, with the latter reform changing the system of government from a purely parliamentary to a semi-presidential system. In 1934, the Law was superseded by the authoritarian Ständestaat constitution, also known as Austrofascism, which marked the end of democratic parliamentarianism and party pluralism. The May Constitution of 1934, starting with the words "In the name of God, the Almighty, from whom all law emanates," transformed Austria into a Federation based on Catholic principles and corporatism.

The Ständestaat constitution became void in 1938 with Austria's incorporation into Nazi Germany. The Federal Constitutional Law was reestablished when Austria regained its independence from Germany in 1945, and it was fully restored with the end of the Allied occupation in 1955. Since then, it has remained in force.

In addition to the B-VG, there are numerous other 'federal constitutional laws' (Bundesverfassungsgesetze, singular Bundesverfassungsgesetz, abbreviated BVG) and individual provisions in statutes and treaties designated as constitutional (Verfassungsbestimmung). While the B-VG does not include a bill of rights, provisions on civil liberties are found across various pieces of constitutional legislation.

The end of democratic parliamentarianism

The May Constitution of 1934, also known as Austrofascism, signalled the end of democratic parliamentarianism in Austria. This authoritarian constitution was proclaimed on 1 May 1934 and established a corporative authoritarian system under the leadership of the Fatherland Front.

The May Constitution was based on Catholic principles and corporatism, and it consisted of the city of Vienna and eight federal Laender. The Federal Government was led by the Federal Chancellor, who was supported by the Fatherland Front—a group that represented nationalist, Christian, and right-wing conservative forces.

The May Constitution's text first appeared in a decree on 24 April 1934 and was formally approved by the former National Assembly on 30 April 1934. It replaced the Austrian Federal Constitutional Law, which had established Austria as a federal republic with a bicameral parliament and a basic structure for the state, democracy, and the courts.

The Federal Constitutional Law, which was adopted in 1920 and amended in 1925 and 1929, was rendered inoperative in 1934 with the rise of the May Constitution. This marked a significant shift away from democratic parliamentarianism and towards an authoritarian regime in Austria.

The Federal Government's 'leadership'

The Federal Constitution of Austria outlines the country's government structure, which is led by the Federal Chancellor. The chancellor is the head of the Federal Government, which also includes the vice-chancellor and ministers. The Federal Government must maintain the confidence of parliament, and the chancellor is considered first among equals.

The Austrian Federal Chancellor's role and powers have changed over time. The position was established in 1920, and the chancellor was initially nominated by the National Council. However, following a revision of the constitution in 1929, the chancellor and cabinet are now appointed by the Federal President. The president has the authority to dissolve parliament and appoint the chancellor and cabinet, but their role is mostly ceremonial and representative.

The chancellor's role is more powerful than that of the president, as they are a heavyweight party official with strong connections to the legislature. They are responsible for proposing ministers for nomination, and while the president can withhold approval, the cabinet's composition ultimately reflects National Council election results.

The Federal Chancellor's duties include presiding over cabinet meetings and implementing laws. They are supported by state secretaries who participate in cabinet meetings but do not have voting rights. The chancellor can also request the president to dismiss individual ministers or the entire cabinet.

The chancellor's dual role as an executive officeholder and party official gives them significant influence in Austria's government.

The Federal Constitutional Court

The Constitutional Court in Austria is the tribunal responsible for judicial review. It is made up of a President, a Vice-President, twelve members, and six substitute members, all of whom are appointed by the Federal President. The Federal President chooses from a list of candidates, with three members and two substitute members proposed by the National Council, three members and one substitute member proposed by the Federal Council, and the remaining candidates proposed by the Federal Government. Members of Parliament cannot be members of the Constitutional Court.

The Constitutional Court has a broad scope of responsibilities and powers. It verifies the constitutionality of statutes, the legality of ordinances and other secondary legislation, and the constitutionality of decisions of certain other courts. The Court also decides on demarcation conflicts between various bodies, including courts, the public administration, and federal and state bodies. It hears election complaints, holds elected officials and appointees accountable for their conduct, and adjudicates on liability claims against the Republic, its provinces, and municipalities.

The Constitutional Court plays a crucial role in safeguarding the rights of individuals in Austria. It decides on matters related to fundamental and human rights violations and scrutinises the implementation of laws and regulations, ensuring they comply with the Constitution. The Court can set aside laws that violate the Constitution, thereby supervising and correcting the legislative activity of the National Council.

The Court's decisions have a significant impact on Parliament. It can rule on the constitutionality of laws and state treaties, challenge election results, and decide on the loss of seats in the National and Federal Councils. It also has the power to impeach office-holders, including the Federal President, Federal Ministers, and Provincial Governors, for culpable violations of the law committed in their official capacity.

The Constitutional Court's interpretation of laws and its decisions shape the understanding and application of those laws. While it exhibits judicial restraint, its rulings can have a similar effect to new Acts of Parliament. The Court's verdicts are concise and academic, addressing the legal community more than the general public.

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