Austria - Constitutional Court, 14 March 2012, U466/11 ua

Country of Decision:
Country of Applicant:
Date of Decision:
VfGH 14.03.2012, U466/11 ua
Additional Citation:
VfSlg 19.632
Court Name:
Constitutional Court
National / Other Legislative Provisions:
TFEU - Art 267
TEU - Art 6
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 18 Abs 2
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 133 Abs 1
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 139
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 140
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 144
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 144a
Austria - Staatsgrundgesetz - Art 18
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - Asylgesetz (Asylum Act) 2005 - § 41(7)
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The Constitutional Court presents its opinion on the nature of the rights and principles contained in the Charter of Fundamental Rights of the European Union(CFRU) and on jurisdiction for the decision on questions of interpretation in connection with the CFRU. It gave an answer in the affirmative to the question of whether the CFRU, in particular Article 47 CFRU, is applicable in asylum proceedings if no such violation was found in the actual case at hand.


The Applicant, a national of the People’s Republic of China, lodged an application for international protection in Austria on 30.03.2010. The second applicant, also from the People’s Republic of China, also lodged an application for international protection in Austria on 03.11.2010. The Federal Asylum Agency refused both applications in full and expelled the Applicants to China. Both lodged an appeal against this to the Asylum Court and applied, amongst other things, for an oral hearing.

Without holding an oral hearing – based on Section 41 Para. 7 Asylum Act 2005 – the Asylum Court refused the appeals in full with findings on 18.01.2011 and 20.04.2011 respectively and issued a decision for expulsion.

The Applicants each lodged an appeal against these decisions to the Constitutional Court and asserted violation of rights granted under constitutional law, namely to an effective legal remedy and an impartial tribunal in accordance with Article 47 CFRU.

Decision & Reasoning: 

The Constitutional Court first considered whether it had jurisdiction for examining an asserted violation of the CFRU. In this connection it referred to the equal legal standing of the CFRU with the Treaties in accordance with Article 6(1) of the Treaty of the European Union (TEU). Direct applicability for Member States when implementing the law of the Union also follows from Article 51 CRFU.

The Constitutional Court agreed with the case law of the Court of Justice of the European Union (CJEU) on the primacy of directly applicable provisions above the law of the Member States. At the same time it results from its previous case law that a violation of Community law is in principle to be considered as equivalent to a breach of ordinary legal provisions, which is why such a violation does not come under its jurisdiction. However, this case law could not be transferred to the CFRU for the following reasons:

The CFRU contains “rights” and “principles” (how certain provisions are to be classified and what importance would be assigned to this differentiation has not yet been clarified in detail). In any case, the CFRU performs the same task for the area of application of Union law in many of its provisions (“the rights”) as rights under constitutional law for the Austrian legal sphere. In view of the intention, extensive similarity in contents and dependence in terms of formulation of the CFRU on the European Convention on Human Rights (ECHR), which has constitutional status in Austria, the areas of protection overlap to a large extent. It contradicts the concept of the Austrian Federal Constitution of a centralised constitutional jurisdiction, if the Constitutional Court cannot pronounce judgment on the rights of the CFRU with largely the same content.

On the basis of national law and the equivalence principle, the rights guaranteed by the CFRU could also be asserted before the Constitutional Court as rights granted under constitutional law and form a criteria test in the proceedings to verify standards in the area of application of the CFRU. This applies in any case when the relevant guarantee of the CFRU has the same formulation and certainty as the rights granted under constitutional law. Otherwise, owing to the varying normative structure of the CFRU provisions, a decision would have to be made in an individual case where the CFRU could create a test criterion, as some rights not granted under constitutional law would equate to “principles” (e.g. Article 22 or Article 37).

However the Constitutional Court referred to the fact that the basic rights, which arise from the common constitutional tradition of the Member States or also from the treaties under international law to protect human rights, had already considerably been   part of general legal principles before the CFRU. The rights guaranteed by the CFRU were now however to be classified as rights granted under constitutional law. The case law of the CJEU was to be decisive, whereby the CJEU as well as the Constitutional Court should in turn have taken the case law of the European Court of Human Rights (ECtHR) into consideration.

In questions regarding the CFRU, the Constitutional Court is the court with the obligation to refer the matter within the meaning of Article 267 Para. 3 of the Treaty on the Functioning of the European Union, not the Asylum Court, which was merely entitled to do to so. If the Constitutional Court has doubts about the interpretation of a provision under Union law – including the CFRU -, the Constitutional Court is to submit the question to the CJEU for a preliminary ruling. If there are doubts about the background to the ECHR and case law issued on this subject by the ECtHR and other high courts, the Constitutional Court should decide without obtaining a preliminary ruling. There isno obligation to refer the matter to the CJEU if no point of law is relevant to the decision. This is the case in the field of the CFRU when a right granted under constitutional law, in particular a right of the ECHR, has the same area of application as a right of the CFRU. In this case the decision should be made by the Constitutional Court owing to the Austrian constitutional position, without having to obtain a preliminary ruling.

Concerning the actual appeals, the Constitutional Court established that, with reference to the Qualification and Procedures Directives, asylum proceedings come under the area of application of the CFRU. Although Article 6 ECHR might not be applicable to asylum proceedings, nevertheless a right to an oral hearing is evident from Article 47(2) CFRU. According to the case law of the ECtHR, an oral hearing can be omitted if extraordinary circumstances justified this. This would be the case, for example, for decisions which raise exclusively legal or extremely technical issues or if it is evident that the submission would not contribute anything towards further clarification of the basis for the decision. On the other hand, it is necessary to hold an oral hearing if the issues raised in the administrative proceedings or in the appeal – if need be with supplementary investigations – cannot be answered from the administrative files and in particular if the facts of the case need to be supplemented or the assessment of the evidence is deficient.

The Constitutional Court came to the conclusion that it had no concerns regarding the constitutionality of Section 41 Para. 7 Asylum Act 2005 (Note: Section 41 Para. 7 Asylum Act 2005 regulates when an oral hearing before the Asylum Court can be omitted, namely if the facts of the case according to the information on file in conjunction with the appeal seem to have been resolved or if there is no doubt from the previous findings that the submission does not correspond to the facts). In both actual cases there were no indications that the Asylum Court had violated a constitutional law by refraining from holding the hearing; this is because in cases where the parties had already been heard and the facts of the case from the information on file in conjunction with the appeal seem to have been resolved or there is no doubt from the previous findings that the submission was contrary to the facts, refraining from holding an oral hearing would be in keeping with Article 47(2) CFRU. 


The appeals were refused.


The finding caused a stir, amongst other things, because the Constitutional Court described itself (at least indirectly) as having jurisdiction – and the CJEU as without jurisdiction – to interpret certain rights or principles (and therefore EU law) laid down in the CFRU.

In addition, many of those working with asylum law were disappointed that the Constitutional Court had not formulated any clear obligation to hold an oral hearing in asylum cases.

Case Law Cited: 

ECtHR - Micallef v Malta, Application No. 17.056/06

Austria - Constitutional Court (VfSlg), 15.215

Austria - Constitutional Court (VfSlg), 15.456/1999

Austria - Constitutional Court (VfSlg), 6.757/2002

Austria - Constitutional Court (VfSlg), 16.391/2001

Austria - Constitutional Court (VfSlg), 15.657/1999

Austria - Constitutional Court (VfSlg), 15.139/1998

Austria - Constitutional Court (VfSlg), 14.889/1997

Austria - Constitutional Court (VfSlg), 16.100/2001

Austria - Constitutional Court (VfSlg), 16.050/2000

Austria - Constitutional Court (VfSlg), 15.450/1999

Austria - Constitutional Court (VfSlg), 15.810/2000

Austria - Constitutiona Court (VfSlg), 15.753/2000

Austria - Constitutional Court (VfSlg), 15.189/1998

Austria - Constitutional Court (VfSlg), 18.541/2008

Austria - Constitutional Court (VfSlg), 15.036/1997

Austria - Constitutional Court (VfSlg) 14.805/1997

Austria - Constitutional Court (VfSlg), 14.390/1995

Austria - Constitutional Court (VfSlg), 14.886/1997

Austria - Constitutional Court (VfSlg), 18.613/2008

ECtHR - Golder v United Kingdom, 21 February 1975, § 29, Series A No. 18

CJEU - C-34/02 Pasquini

CJEU - C-63/08 Pontin

CJEU - C-402/05 P & C-415/05 P Yassin Abdullah Kadi & Al Barakaat International Foundation v Council & Commission

UK - CILFIT v Ministry of Health Case 283/81 (1982) ECR 3415

Austria - Constitutional Court (VfSlg), 17.225/2004

Austria - Constitutional Court (VfSlg), 11.500/1987

ECtHR - Helmers v. Sweden, Application No. 11.826/85

CJEU - C-188/10, C-189/10 Melko/Abdeli

ECtHR - Miller v. UK, Application No. 55.853/00

ECtHR - Döry v. Sweden, Application No. 28.394/95

ECtHR - Süßmann v Germany, Application No. 20.024/92

ECtHR - Bracci v. Italy, Application No. 36.822/02

ECtHR - Zumtobel v. Austria, Application No. 12.235/86

ECtHR - Pauger v. Austria, Application No. 16.717/90

CJEU - 222/84 Johnston

CJEU - C-351/92 Graff

CJEU - C-495/03 Intermodal

CJEU - C-232/06 C-233/06 Jonkman

CJEU - C-201/02 Wells

CJEU - C-292/97 Karlsson

Austria - Constitutional Court (VfGH), 13 June 1995, B877/95

CJEU - 4/73 Nold

CJEU - C-326/96 Levez

CJEU - 45/76 Comet

CJEU 33/76 Rewe

CJEU - 106/77 Simmenthal II

CJEU 11/70 Internationale Handelsgesellschaft

CJEU - 6/64 Costa/ENEL

CJEU - C-555/07, Kücükdeveci

Austria - Administrative Court, 23 October 2000, 99/17/0193

Austria - Constitutional Court (VfGH), December 1997, G23-26/97

Austria - Constitutional Court (VfGH) 4 October 1997, G 322, G323/97

Austria - Constitutional Counrt (VfGH), 12 April 1997, G400/96, G44/97