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Austria, Constitutional Court, U466/11 and others

Other Info
Suggested Case(s)
  • CJEU Case 33/76, Rewe, 16 December 1976
  • CJEU Case C-402/05 P and C-415/05 P, Kadi, 3 September 2008
  • ECtHR, Maaouia, Appl. 39.652/98, 5 October 2000
  • ECtHR, Eskelinen a.o., Appl. 63.235/00, 19 April 2007
  • ECtHR, Döry, Appl. 28.394/95, 12 November 2002
  • ECtHR, Miller, Appl. 55.853/00, 8 February 2005
Relevant Judicial Dialogue Techniques
Deciding bodies and decisions
Austrian Constitutional Court
Subject matterBack to top ▲
  • Right to fair trial, especially right to a hearing
  • Asylum
Summary Facts Of The CaseBack to top ▲
The applicant is a Chinese national, seeking subsidiary protection in Austria. After seeing their applications, as well as their appeals to the Asylum Court, rejected, they appeal to the Constitutional Court, claiming a violation of constitutionally protected right to a hearing, which was denied them in the proceedings. Their claim was based directly on alleged violations of Art 47 of the EU Charter. This meant that the Constitutional Court had to decide, as a preliminary issue, whether those arguments are admissible – i.e. whether the Charter can provide the relevant standard of review.

The Court first extensively cites CJEU case law as well as its own precedent to reaffirm the principle of primacy of EU law, but points out that EU law in general is not an appropriate standard of review in the decisions of the Constitutional Court. While Austrian authorities in general are bound by EU law principles of direct effect and supremacy, the Constitutional Court follows those principles only insofar as a domestic cause of action is established; violations of EU law in general are equated to statutory and not constitutional breaches.

The same does not, however, hold for arguments based on the Charter of Fundamental Rights. In relation to the Charter, the Constitutional Court goes on to cite in detail the CJEU case law building on Rewe, in relation to the principles of equivalence and effectiveness of protecting EU law-based rights in domestic legal orders. The Constitutional Court then notes the close connection between the Charter and the ECHR which is, incidentally, directly applicable as a source of constitutional rights in the Austrian legal order. From these two points, the Court concludes, in effect, that the Charter can supply the appropriate standard of review for breaches of constitutional rights. The centralisation of such decisions in the hands of the Constitutional Court is turned into an argument in favour of that reading. At least insofar as ‘rights’ from the Charter are concerned, the overlap of their content with the ECHR means that they should be translated into national constitutional standards; this may not, however, hold for principles, requiring a case-by-case assessment (para 5.5).

This justifies the Constitutional Court’s finding that it will follow the fundamental rights case law of the CJEU which, in turn, follows the case law of the ECtHR. This may require it to submit references to the CJEU, but not if there is no doubt on the proper interpretation of EU law. Interestingly, the Court considers this to be the case when not just the CJEU, but also the ECtHR, has resolved a certain issue.

Next, the Constitutional Court considers the issue whether the case falls within the scope of EU law as required by the Charter, and finds that it does, due to its subject matter (asylum, regulated extensively by EU measures).

As for Art 47 of the Charter in particular, the Court notes its broader scope of application than the ECtHR as well as the fact that a higher level of protection can be granted under the Charter. While under Art 6, the right to a hearing only applies in civil law cases, Art 47 extends that protection to asylum proceedings and thus the applicants can benefit from it.106 The assessment of a violation will, however, depend on proportionality. Citing the case law of the ECtHR, the Constitutional Court finds that this right can be limited in exceptional circumstances and that it needs not be protected according to the same standard regardless of the type of decision being made by a national court. In circumstances where it has nothing to contribute to the written record, an oral hearing can thus be dispensed with. On this basis, the Constitutional Court finds no violation of the Charter.

Click to enlarge / minimize diagram

Vertical (domestic court – CJEU and ECtHR)

Horizontal (linking ECtHR case law with EU-law compatibility)

Through the use of consistent interpretation technique the Austrian Constitutional Court translated Art 47 of the EU Charter, CJEU case law and the case law of the ECtHR into the domestic constitutional fair trial standard in area of migration and asylum. The Court links the EU Charter with the jurisprudence of the ECtHR and by doing so indirectly strengthens the horizontal dialogue between the CJEU and the ECtHR.

Sources - ECHRBack to top ▲
  • Art. 6 ECHR
  • Art. 13 ECHR

The Austrian Constitutional Court adjudicates Art. 6 ECHR as not directly applicable, but refers to the jurisprudence of the ECtHR on Art. 6 ECHR in order to derive standards for exceptional derogations from the right to fair trial. The Court refers to Art. 13 ECHR in order to clarify that Art. 47 EU Charter has a relatively broader scope.

Sources - CJEU Case LawBack to top ▲
  • CJEU Case 6/64, Costa/ENEL, 15 July 1964
  • CJEU Case 11/70, Internationale Handelsgesellschaft, 17 December 1970
  • CJEU Case 106/77, Simmenthal II, 9 March 1978
  • CJEU Case 283/81 Cilfit, 1982
  • CJEU Case 33/76, Rewe, 16 December 1976
  • CJEU Case 45/76, Comet 16 December 1976
  • CJEU Case, C-326/96, Levez, 1 December 1998
  • CJEU Case C-34/02, Pasquini, 19 July 2003
  • CJEU Case 4/73, Nold, 14 May 1974
  • CJEU Case 5/88, Wachauf, 13 July 1989
  • CJEU Case C-292/97, Karlsson, Slg. 2000, I-2737; 13 April 2000
  • CJEU Case C-402/05 P and C-415/05 P, Kadi, 3 September 2008

The Austrian Constitutional Court extensively cites CJEU case law to reaffirm the scope of EU Law, fundamental principles of EU Law, such as direct effect, effectiveness, supremacy. The Court discusses its competence to adjudicate on EU Law and the requirements for refraining from asking for preliminary rulings.

Sources - ECtHR Case LawBack to top ▲
  • ECtHR, Pauger, Appl. 16.717/90, 28 May 1997
  • ECtHR, Golder, Appl. 4451/70, 21 February 1975
  • ECtHR, Zumtobel, Appl. 12.235/86, 21 September 1993
  • ECtHR, Bracci, Appl. 36.822/02, 13 October 2005
  • ECtHR, Süßmann, Appl. 20.024/92, 16 September 1996
  • ECtHR, Eskelinen a.o., Appl. 63.235/00, 19 April 2007
  • ECtHR, Maaouia, Appl. 39.652/98, 5 October 2000
  • ECtHR, Döry, Appl. 28.394/95, 12 November 2002
  • ECtHR, Miller, Appl. 55.853/00, 8 February 2005

The Austrian Constitutional Court extensively cites ECtHR case law in order to determine the derogations possible under Art. 6 ECHR and there from derives indications for legitimate derogations under Art. 47 EU Charter.

Sources - Internal or external national courts case lawBack to top ▲
  • Austrian Constitutional Court (Verfassungsgerichtshof) VfSlg. 15.189/1998
  • Austrian Constitutional Court (Verfassungsgerichtshof)12.4.1997, G400/96, G44/97
  • Austrian Constitutional Court (Verfassungsgerichtshof) 4.10.1997, G 322, G323/97
  • Austrian Constitutional Court (Verfassungsgerichtshof) 5.12.1997, G23-26/97
  • Austrian Constitutional Court (Verfassungsgerichtshof) 23.10.2000, 99/17/0193
  • Austrian Constitutional Court (Verfassungsgerichtshof), VfSlg. 15.450/1999
  • Austrian Constitutional Court (Verfassungsgerichtshof), VfSlg. 16.050/2000
  • Austrian Constitutional Court (Verfassungsgerichtshof), VfSlg. 16.100/2001

The Austrian Constitutional Court cites its own case law in which the Court previously applied the principles of EU Law such as , principles of direct effect, supremacy, equivalence and effectiveness.

  1. The Constitutional Court equates a violation of the Charter with a violation of domestic constitutional law.
  2. The Court extensively relies on CJEU case law (inter alia, principles of direct effect, supremacy, equivalence and effectiveness) to establish the scope of application of EU law and address possible disapplication of national law as a consequence; it also uses consistent interpretation to decide on the substance and scope of the right to fair trial, looking at both ECtHR and CJEU case law.
  3. The Court strongly links the fundamental rights guarantees of the two supranational legal orders.
  4. The possibility of referring to the CJEU is acknowledged in principle, but the duty to refer is interpreted relatively narrowly.
  5. Perhaps somewhat counter-intuitively, the Court constructs fundamental rights as a more effective and direct cause of action in the domestic system than ‘regular’ norms of EU law would be.
  6. Dealing with the right to fair trial places the Constitutional Court on a path of quite extensive interaction with both CJEU and ECtHR case law, including a detailed examination of the relationship between the two systems.
  7. Proportionality is used in order to establish whether a violation of the right to fair trial took place; ECtHR case law on the permissibility of national measures is used as a benchmark (consistent interpretation).
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