General legal framework

AuthorThomasberger, Martina
2 General legal framework
2.1 Constitution
2.1.1 Constitutional 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 p rovincial legislation but as a constitutional p rinciple 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 constit utional (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.
2.1.2 Other constitutional protection of equality between m en and women
Austria i s 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 ev ery aspect of legislat ion 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
Standing legal doctrine states that fundamental rights and constitutional principles apply
only to relations between the state and ind ividuals and have no dir ect 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 r ecognised
in civil law by case law in Paragraph 879 of the Civil Code, which invalidates illegal, unfair,
or immoral clauses i n 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 an d is an important benchmark for testing the constitutionality of legislation
and acts of state. For enterprises or other entities owned or controlled by the state,
Article 7 and other civil rights ar e 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
5 For example, RIS-Justiz RS0038552 (9 ObA 104/13d),
6; see also RIS-
Justiz RS0022866,
7 For example, Constitutional Court, G 238/88 and others, SlgNr. 12194,

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