General legal framework

• Author: Thomasberger, Martina
• Pages: 7-8

7

2General legal framework

2.1Constitution

2.1.1Constitutional ban on sex discrimination

Article 7(1) of the Federal Constitutional Act states the general equality principle and

prohibits privileges based on sex, among other attributes. This is a general rule, addressed

mainly to federal and provincial legislation but as a constitutional principle it has to be

taken into consideration in all acts of state.

Article 7(2) contains a constitutional objective. Equal treatment of men and women and

positive action measures shall be considered as constitutional (not breaching the equality

principle) until material equality between men and women is achieved. Constitutional

objectives are addressed to legislative bodies and to some extent to administrative

authorities; they cannot serve as actionable individual rights.

2.1.2Other constitutional protection of equality between men and women

Austria is a member of the Council of Europe and is consequently subject to European

Court of Human Rights (ECtHR) jurisdiction.

The European Convention on Human Rights, together with the additional protocols, was

transposed as national constitutional law and serves as the national charter of fundamental

rights in every aspect of legislation and jurisdiction. Additionally, there is specialised

constitutional legislation granting specialised fundamental freedoms (e.g.

Staatsgrundgesetz von 1867, covering among other areas freedom of teaching and

research).4

Standing legal doctrine states that fundamental rights and constitutional principles apply

only to relations between the state and individuals and have no direct third-party effects

(Drittwirkung). Indirect third-party effects of fundamental rights are commonly recognised

in legal doctrine and in case law.5 For example, indirect third-party effects are recognised

in civil law by case law in Paragraph 879 of the Civil Code, which invalidates illegal, unfair,

or immoral clauses in contracts; the evaluation of what constitutes a prohibited clause is

largely guided by the interpretation of fundamental freedoms.6

Article 7(1) of the Federal Constitutional Act also serves as a constitutional principle for

legislation and is an important benchmark for testing the constitutionality of legislation

and acts of state. For enterprises or otherentities owned or controlled by the state,

Article 7 and other civil rights are held to develop external third-party effects, which bind

their activities to the constitutional principles and to the fundamental rights of the

European Convention on Human Rights.7

4

https://www.ris.bka.gv.at/GeltendeFassung/Bundesnormen/10000006/StGG%2c%20Fassung%20vom%20

06.04.2019.pdf.

5For example, RIS-Justiz RS0038552 (9 ObA 104/13d),

https://www.ris.bka.gv.at/Dokumente/Justiz/JJT_20130927_OGH0002_009OBA00104_13D0000_000/JJT_

20130927_OGH0002_009OBA00104_13D0000_000.pdf.

6https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR12018602/NOR12018602.pdf; see also RIS-

Justiz RS0022866,

https://www.ris.bka.gv.at/Dokumente/Justiz/JJR_19800219_OGH0002_0040OB00138_7900000_003/JJR_

19800219_OGH0002_0040OB00138_7900000_003.pdf.

7For example, Constitutional Court, G 238/88 and others, SlgNr. 12194,

https://www.ris.bka.gv.at/Dokumente/Vfgh/JFR_10108988_88G00238_01/JFR_10108988_88G00238_01.p

df.