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2 Vienna Online J. on Int'l Const. L. 272 (2008)
Community Law and Austrian Constitutional Law

handle is hein.journals/vioincl2 and id is 269 raw text is: * ARTICLES Albert Posch Community law and Austrian constitutional law This article focuses on the interplay between European Community law and Austrian constitutional law. It is essential, therefore, to examine in a first step the relationship between Community Law and national law in general. The non- existence of a written supremacy clause in European law leaves a wide margin for interpretation. The European Court of Justice (ECJ) characterizes European Community law as supreme, directly effective and autonomous. Behind these structural elements lurks the fundamental dogmatic question of the dependence of European Law on national law. As European law is founded on international treaties, the Member States' Supreme Courts tend to argue that treaty law can not be completely autonomous in their internal legal order. In their opinion and in opposition to the ECJ, the rule deciding whether national or European law should be supreme is located within the national constitutional order. Although the supremacy of European Community law is accepted by the national courts of all Member States as regards the relationship between European Community law and ordinary legislation, the mentioned dogmatic conflict between the ECJ and Member States' Supreme Courts matters when it comes to a conflict between European Community law and national constitutional law. In Austria, the Constitutional Court and academia accept the primacy of European Community law even over Austrian constitutional provisions. Nevertheless, the technique chosen for opening the Austrian legal system to Community law also provides for an inherent limitation of supremacy as regards conflicts between Community law and the basic principles of the Austrian constitution, known as Integrationsschranke. This is where the question on the ultimate aspects of the supremacy debate may come to the fore in a conflict between national and Community law. COMMUNITY LAW AND NATIONAL LAW Due to the lack of a written legal basis regarding the relationship between Community law and national law the clarification of this matter was left to the European courts. Thereby, the ECJ strengthened its self-image as motor' of European integration by establishing the doctrine of supremacy of European Community law. In its opinion supremacy and direct effect of Community law are 1 Kirchhof, Die rechtliche Struktur der Europ~ischen Union als Staatenverbund, in: Bogdandy (ed), Europiisches Verfassungsrecht, Theoretische und dogmatische Grundz0ge (2003) 893 (923). www*il-ioun4/2cm0Vo 2 7 4/2008, 272

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