Gleichheit vor dem Gesetz

The general principle of equality is a fundamental right whose practical importance by far surpasses other fundamental rights in Austria. The judicature of the Constitutional Court ("Verfassungsgerichtshof") regarding this right is very extensive and difficult to foresee in the individual case. This has repeatedly been criticised in literature. However, constructive suggestions to a rationally more comprehensible application of the principle of equality remained rare. This work intends to show that the historical development of the principle of equality, its wording, its aim and its position in the system of the constitution contain a potential for interpretation that until now has not fully been taken advantage of. This potential can significantly clear up the meaning of this fundamental right and make it easier to foresee its rational application in the individual case. The first part of the work initially recapitulates the genesis of the principle of equality. Based on that, general problems of the principle of equality are discussed, in particular the question whether it is to be interpreted as a principle of equal treatment or as a rule to treat equal equally and unequal unequally or whether it contains a scope of protection that is different from un/equal treatment. The third part of the work analyses two specific principles of equality that give further information about the meaning of the general principle of equality: the prohibition of privileges based on birth, sex, rank, class and confession (art 7 sub 1, sentence 2 B-VG) and BVG-racial discrimination. The fourth part looks at the relation of the principle of equality to the civil liberties. Furthermore it is examined whether the principle of equality also obliges to solidarity with socially disadvantaged groups. Finally, questions of the principle of equality concerning the rule of the law ("Rechtsstaat") are discussed. In each of these parts the relevant judicature of the Constitutional Court is depicted and critically analysed. It is being pleaded for a more restraining application of the principle on the one hand and for a more differentiated application of the principle of equality on the other hand, which rightly emphasises special rules and takes account of differences and similarities set by the constitution. As this analysis shows, the principle of equality gives the individual a set of different rights: the right to equal treatment as well as a right to unequal treatment, which can also be regarded as a right to be treated according to a specific standard, and finally non-comparative rights, which are independent from how other persons are treated. These rights as a whole constitute the scope of protection of the principle of equality. In general they only apply prima facie; each restriction of these rights by the legislation requires a justification. Depending on the particular case, this justification can be provided when in spite of the first impression there are fundamental differences between the groups of comparison or when the restriction is an apt, necessary and adequate means to reach a legitimate aim. However, not each regulation has to be examined in such a strict way. If there is no clue to a general prohibition of un/equal treatment, then there is no need for a justification. In that case the principle of equality contents itself with a statement of reasons, which - depending on the context - can result from the aim or the subject of the regulation.