Constitutionally-Conforming Interpretation in Austria

The Austrian Constitutional Court uses constitutionally-conforming interpretation frequently, often crossing the borders thus depicted, setting aside the wording of a specific provision or the clear intent of the legislator. By engaging in rather bold interpretative moves, the Court tends to preserve statutory law that otherwise had to be found unconstitutional by means of judicial review.
This practice comes at a price; too high a price, as some scholars argue who caution against the excessive use of a tool that may jeopardize the Court’s original mission to serve as a “negative legislator” in order to ensure predictability and a clear-cut perception of statutory law in and by itself in conformity with the constitution, rather than by interpretative exercises. Against this backdrop, my contribution will discuss the merits and downsides of this interpretative practice, focusing on the case law of the Austrian Constitutional Court.