The Constitution of the Republic of Austria: A Contextual Analysis 9781472560926, 9781841138527

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Acknowledgements I would like to thank my fantastic team at Vienna University, Tatjana Cardona, Doris Erker, Sarah Hillisch, Andreas Lehner, Tasia Mantanika and Katharina Schmiedecker for their on-going committed and diligent support in all technical aspects of drafting the manuscript. I owe thanks to the Rector of Vienna University, Georg Winckler, for having granted me a sabbatical during which most parts of the book were written. My colleagues at Vienna University, Ilse Reiter-Zatloukal and Ewald Wiederin, as well as the editors and co-editors of the series, Peter Leyland, Andrew Harding, Benjamin L Berger and Alexander Fischer, have commented on earlier drafts. Alison Flint-Steiner has helped to improve the language. I am grateful for all their contributions. Any remaining errors are, of course, entirely mine. I am deeply indebted to the publisher, Richard Hart, and the editors for giving me the opportunity to contribute to the ‘Constitutional Systems of the World’ series. Tom Adams, Mel Hamill, Petra Jones and Rachel Turner, all of Hart Publishing, had to deal with my manuscript at different stages of production. I am grateful for their co-operation, support and patience. In her cover painting, Putachad Leyland has brilliantly captured the main ideas of my book. I am indebted to her for allowing me the oncein-a-lifetime experience of being involved in the creation of a piece of art. As always, I have to thank my family, my wife Sibylle and my three children Tamara, Lukas and Daniela, for their on-going support, tolerance and patience.

List of Abbreviations ABGB  Allgemeines bürgerliches Gesetzbuch (Civil Law Code) B-VG Bundes-Verfassungsgesetz1 (Federal Constitutional Law, the core document of the Austrian Constitution) Beitritts-BVG Bundesverfassungsgesetz über den Beitritt Österreichs zur Europäischen Union (Federal Constitutional Law on the Austrian Accession to the European Union) BGBl Bundesgesetzblatt2 (Federal Law Gazette) BVerfGE Amtliche Sammlung der Entscheidungen des Bundes­ ver­ fassungsgerichtes (Official Compilation of the German Federal Constitutional Court’s rulings) ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice EHRR Essex Human Rights Review F-VG  Finanz-Verfassungsgesetz (Constitutional Finance Law) GDP gross domestic product GMO genetically modified organism OECD  Organisation for Economic Cooperation and Development ORF  Österreichischer Rundfunk (Austrian Broadcasting Corporation) RGBl Reichsgesetzblatt (Imperial Law Gazette) VfGH Verfassungsgerichtshof (Constitutional Court)

1   Available in English on the official website of the Austrian Federal Chancellery (www.ris.bka.gv.at). 2   Laws that were published before 1997 are correctly referred to by numbers and the year of publication (eg BGBl 1013/1994, or, in reverse order: BGBl 1994/1013). From 1997 onward the Federal Law Gazette has been divided into three parts. Part I largely contains Federal laws, part II mainly ordinances and part III state treaties. Correct citation therefore also requires indicating the part: BGBl I 2/1997 or BGBl I 1997/2.

xii  List of Abbreviations

VfSlg  Sammlung der Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes3 (Official Compilation of the Constitutional Court’s rulings and decisions)

3

  The Constitutional Court’s decisions have been consecutively numbered since 1919. A Constitutional Court’s decision may be referred to by its number only, but, usually, the year in which it was taken is added: eg VfSlg 10571/1985. The rulings and decisions adopted from 1980 onwards are also available online (www.ris.bka. gv.at/vfgh).

Table of Cases Austria

Administrative Court VwSlg 13681 A/1992........................................................................................238 VwGH 14.09.2004, 2001/10/0091................................................................229 Constitutional Court VfSlg 8/1921......................................................................................................197 VfSlg 176/1923...................................................................................................87 VfSlg 206/1923.................................................................................................197 VfSlg 2323/1952...............................................................................................109 VfSlg 2455/1952................................................................................ 75, 152, 153 VfSlg 2721/1954...............................................................................................163 VfSlg 3426/1958.................................................................................................70 VfSlg 3560/1959.................................................................................................70 VfSlg 3666/1959...............................................................................................235 VfSlg 4480/1963...............................................................................................227 VfSlg 5100/1965...............................................................................................182 VfSlg 5372/1966...............................................................................................228 VfSlg 6402/1971...............................................................................................225 VfSlg 7400/1974.............................................................................. 189, 199, 219 VfSlg 7837/1976...............................................................................................125 VfSlg 8090/1977...............................................................................................227 VfSlg 8136/1977...................................................................................... 189, 241 VfSlg 8215/1977...................................................................................... 128, 172 VfSlg 8280/1978.................................................................................................91 VfSlg 8395/1978.................................................................................................90 VfSlg 9169/1981...............................................................................................228 VfSlg 9206/1981...............................................................................................227 VfSlg 9648/1983.................................................................................................49 VfSlg 9909/1983...............................................................................................239 VfSlg 10050/1984.............................................................................................162 VfSlg 10080/1984.............................................................................................182 VfSlg 10163/1984.............................................................................................227 VfSlg 10179/1984...............................................................................................31

xiv  Table of Cases VfSlg 10292/1984.............................................................................................164 VfSlg 10401/1985.............................................................................................241 VfSlg 10412/1985...............................................................................................66 VfSlg 10443/1985.............................................................................................227 VfSlg 10510/1985.............................................................................................197 VfSlg 10705/1985...............................................................................................50 VfSlg 10737/1985...................................................................................... 90, 195 VfSlg 10932/1986.............................................................................................235 VfSlg 11258/1987...............................................................................................51 VfSlg 11276/1987.............................................................................................236 VfSlg 11284/1987.............................................................................................228 VfSlg 11404/1987.............................................................................................226 VfSlg 11455/1987...................................................................................... 90, 195 VfSlg 11499/1987...............................................................................................89 VfSlg 11500/1987................................................................................180, 183–4 VfSlg 11567/1987.............................................................................................227 VfSlg 11651/1988.............................................................................................238 VfSlg 11652/1988.............................................................................................236 VfSlg 11669/1988.........................................................................................32, 34 VfSlg 11691/1988.............................................................................................183 VfSlg 11729/1988.............................................................................................183 VfSlg 11749/1988.............................................................................................236 VfSlg 11756/1988...............................................................................................35 VfSlg 11760/1988.............................................................................................183 VfSlg 11828/1988.............................................................................................213 VfSlg 11857/1988.............................................................................................195 VfSlg 11937/1988.............................................................................................184 VfSlg 11991/1989.............................................................................................226 VfSlg 12017/1989.............................................................................................221 VfSlg 12155/1989.............................................................................................227 VfSlg 12182/1989.............................................................................................242 VfSlg 12227/1989.............................................................................................234 VfSlg 12420/1990...............................................................................................90 VfSlg 12568/1990.............................................................................................244 VfSlg 12624/1991.............................................................................................223 VfSlg 12784/1991.............................................................................................159 VfSlg 12923/1991.............................................................................................243 VfSlg 12924/1991.............................................................................................227 VfSlg 13505/1993.............................................................................................184 VfSlg 13612/1993.............................................................................................226



Table of Cases  xv

VfSlg 13740/1994...............................................................................................90 VfSlg 13829/1994.............................................................................................244 VfSlg 14075/1995.............................................................................................234 VfSlg 14121/1995.............................................................................................226 VfSlg 14187/1995.............................................................................................161 VfSlg 14191/1995.............................................................................................212 VfSlg 14233/1995.............................................................................................221 VfSlg 14258/1995.............................................................................................239 VfSlg 14803/1997...............................................................................................53 VfSlg 15103/1998.............................................................................................237 VfSlg 15114/1998.............................................................................................228 VfSlg 15124/1998.............................................................................................228 VfSlg 15266/1998...............................................................................................70 VfSlg 15350/1998.............................................................................................183 VfSlg 15373/1988.............................................................................................211 VfSlg 15373/1998.............................................................................................204 VfSlg 15465/1999.............................................................................................221 VfSlg 15744/2000.............................................................................................222 VfSlg 16131/2001.............................................................................................229 VfSlg 16151/2001...............................................................................................82 VfSlg 16241/2001............................................................................32–3, 81, 164 VfSlg 16327/2001...............................................................................................35 VfSlg 16404/2001.............................................................................................212 VfSlg 16483/2002.............................................................................................226 VfSlg 16565/2002.............................................................................................243 VfSlg 17026/2003.............................................................................................212 VfSlg 17047/2003.............................................................................................222 VfSlg 17212/2004.............................................................................................163 VfSlg 17340/2004...............................................................................................32 VfSlg 17733/2005.............................................................................................212 VfSlg 17961/2006.............................................................................................129 VfSlg 18309/2007.............................................................................................184 VfSlg 18632/2008.............................................................................................186

Supreme Court OGH 14.07.1986, 1 Ob 554/86......................................................................191 OGH 29.3.2000, 6 Ob 79/00m.........................................................................73 OGH 1.8.2007, 13 Os 135/06m......................................................................191

xvi  Table of Cases

European Court of Human Rights (ECtHR) Allan Jacobsson v Sweden Series A no 163 (1989) 12 EHRR 56.................181 Amuur v France (App no 19776/92) (1996) 22 EHRR 533........................221 Belilos v Switzerland Series A no 132 (1988) 10 EHRR 466........................182 Campbell and Fell v United Kingdom Series A no 80 (1984) 7 EHRR 165..................................................................................................182 Diennet v France Series A no 325-A (1995) 21 EHRR 554.........................181 Frodl v Austria, App no 20201/04, ECtHR 8 April 2010..................... 66, 111 Informationsverein Lentia and Others v Austria Series A no 276 (1994) 17 EHRR 93............................................................................... 239–40 Josef Fischer v Austria (App no 16922/90) (1995) 20 EHRR 349..............183 König v Federal Republic of Germany Series A no 27 (1978) 2 EHRR 170..................................................................................................181 Le Compte, Van Leuven and De Meyere v Belgium, Series A no 43 (1981) 4 EHRR 1...........................................................................................182 Lopez Ostra v Spain, Series A no 303 C (1994) 20 EHRR 277....................214 Nolan and K v Russia (App no 2512/04) ECtHR 12 February 2009.........222 Ortenberg v Austria Series A no 295-B (1995) 19 EHRR 524.....................183 Religionsgemeinschaft der Zeugen Jehovas and others v Austria (App no 40825/98) ECtHR 31 July 2008......................................... 195, 230 Ringeisen v Austria Series A no 13 (1971) 1 EHRR 455...............................181 Zumtobel v Austria Series A no 234-C (1993) 17 EHRR 116.....................183 European Court of Justice (ECJ) Case C-147/03 Commission of the European Communities v Republic of Austria [2005] ECR I-05969.....................................................................31 Joined Cases C-439/05 P and C-454/05 P, Land Oberösterreich and Republic of Austria v Commission of the European Communities (2007) ECR I-07141.....................................................................................168 Germany, Federal Constitutional Court BVerfGE 7, 377 - Apotheken-Urteil...............................................................237 BVerfGE 39, 1 (41) - Schwangerschaftsabbruch I........................................214 BVerfGE 46, 160 - Schleyer.............................................................................214 BVerfGE 85, 264 - Parteienfinanzierung II.....................................................54 BVerfGE 88, 203 - Schwangerschaftsabbruch II..........................................215

Table of Legislation Austria

Constitutions/Constitutional Amendments Constitution of 1867............................................................................ 45, 88, 148 Constitution of 1920/1929 (B-VG) Art 1................................................................................................... 8–9, 13, 32 Art 2......................................................................................................... 32, 148 Art 2(3)...................................................................................................... 150–1 Art 7.......................................................................................210, 212, 227, 244 Art 7(1)...........................................................................................................227 Art 9..................................................................................................................25 Art 9(2)...........................................................................................................137 Art 10..............................................................................................................155 Art 10(1)(6)........................................................................................... 181, 184 Art 10(1)(8)......................................................................................................28 Art 10(9).........................................................................................................163 Art 11......................................................................................................... 154–5 Art 12..............................................................................................................155 Art 13..............................................................................................................140 Art 13(2).........................................................................................................141 Art 13(3).........................................................................................................141 Art 14b(6).......................................................................................................109 Art 15.................................................................................................155–6, 163 Art 15a....................................................................................................... 167–8 Art 16..............................................................................................................166 Art 16(5).........................................................................................................134 Art 17..................................................................................................... 154, 166 Art 18..............................................................24, 87–8, 91, 135, 156, 202, 231 Art 19................................................................................................................63 Art 20..............................................................................................................172 Art 20(2)............................................................................................ 7–8, 10, 98 Art 23c(1).......................................................................................................138 Art 23d............................................................................................................168 Art 26................................................................................................................65 Art 41(2)...........................................................................................................80

xviii  Table of Legislation Art 43..........................................................................................................84, 86 Art 44..........................................................................................................84, 86 Art 44(2)...........................................................................................................94 Art 44(3).............................................................................................. 32, 36, 84 Art 47(1).........................................................................................................118 Art 49b......................................................................................................... 85–6 Art 50..............................................................................................................134 Art 51(1)...........................................................................................................98 Art 52(1a).......................................................................................................130 Art 53................................................................................................................98 Art 55(2)...........................................................................................................69 Art 56................................................................................................................70 Art 56(1)...................................................................................................... 70–2 Art 60(5).........................................................................................................110 Art 69..............................................................................................................125 Art 69(3).........................................................................................................125 Art 73..............................................................................................................125 Art 74..............................................................................................................100 Art 83..............................................................................................................210 Art 92..............................................................................................................180 Art 94....................................................................................................... 178–80 Art 102(1).......................................................................................................169 Art 102(2).......................................................................................................169 Arts 115-120c................................................................................................171 Art 116(2).......................................................................................................154 Art 129a(1).....................................................................................................186 Art 129c..........................................................................................................186 Art 129d(3).....................................................................................................186 Art 130(2).........................................................................................................91 Art 133(4)............................................................................... 129–30, 153, 181 Art 138(2).......................................................................................................198 Art 138a..........................................................................................................198 Art 140..............................................................................................................24 Art 140a..........................................................................................................198 Art 141(1).........................................................................................................69 Art 144a..........................................................................................................186 Constitution of 1934....................................................................11–12, 114, 234



Table of Legislation  xix

Constitutional Amendments 1946................................................................................................................192 1974................................................................................................................167 1975................................................................................................................224 1981................................................................................................................137 1988....................................................................................................... 166, 184 1994....................................................................................................... 116, 168 1997................................................................................................................244 2004................................................................................................................142 2007............................................................................................................18, 66 2008............................................................18, 129, 132, 135–6, 141, 144, 150 2010..................................................................................................................95 Other Federal Instruments Administrative Court Act (Verwaltungsgerichtshofgesetz, BGBl 10/1985) Art 42..............................................................................................................182 Agreement Between the Federation and the States on the Participation of States and Municipalities in Matters Concerning the European Integration Process (Vereinbarung zwischen dem Bund und den Ländern gemäß Art. 15 a B-VG über die Mitwirkungsrechte der Länder und Gemeinden in Angelegenheiten der europäischen Integration, BGBl 775/1992)................................................................. 167–8 Aliens’ Police Act (Fremdenpolizeigesetz, BGBl 75/1954)................... 194–5 Basic Law on the Establishment of an Imperial Court (Staatsgrundgesetz über die Einsetzung eines Reichsgerichtes, RGBl 143/1867)..........5, 9, 30, 207–8, 217, 249–50 Basic Law on Judicial Power (Staatsgrundgesetz über die richterliche Gewalt, RGBl 144/1867) Art 7................................................................................................................176 Art 15..................................................................................................................6 Basic Law on the General Rights of Nationals (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger, RGBl 142/ 1867)............................................................................... 5, 9, 209–11, 231, 237 Art 3................................................................................................................133 Art 5.......................................................................................209, 223, 232, 234 Art 6............................................................................................... 222, 226, 235 Art 12..............................................................................................................225 Art 13..............................................................................................................238 Art 17..................................................................................................... 219, 222 Art 17a............................................................................................................222

xx  Table of Legislation Art 19(2).........................................................................................................233 Civil Law Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).......... 207–8 Art 16..............................................................................................................208 Art 879............................................................................................................218 Civil Procedure Code (Zivilprozessordnung, ZPO).......................................43 Constitutional Finance Law (Finanz-Verfassungsgesetz, F-VG, BGBl 45/1948)............................................................................................... 154, 159 Constitutional Law on the Prohibition of Nuclear Power and Nuclear Weapons (Bundesverfassungsgesetz für ein atomfreies Österreich, BGBl 1999/149).............................................................................................86 Constitutional Law of 26 October 1955 on Austrian Neutrality (Bundesverfassungsgesetz über die Neutralität Österreichs, BGBl 211/1955)........................................................................................................15 Constitutional Law on Differing Retirement Ages for Men and Women (Bundesverfassungsgesetz über unterschiedliche Altersgrenzen von männlichen und weiblichen Sozialversicherten, BGBl 1992/832).........244 Constitutional Law on the Guarantee of the Independence of Broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, BGBl 396/1974)......................................................................238 Constitutional Law on the Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (Bundesverfassungsgesetz zur Durchführung des Internationalen Übereinkommens über die Beseitigung aller Formen rassischer Diskriminierung, BGBl 390/1973)................................................... 212, 227 Constitutional Law on the Limit of Salaries of Public Functionaries = Constitutional Law on the Limitation of Public Functionaries Income (Bundesverfassungsgesetz über die Begrenzung von Bezügen öffentlicher Funktionäre, BGBl 64/1997)................................. 73, 101, 165 Criminal Procedure Code (Strafprozessordnung, StPO, BGBl 631/1975) Art 363a..........................................................................................................190 Data Protection Act 2000 (Datenschutzgesetz, BGBl 1999/165) Art 1................................................................................................................212 Art 35(2).........................................................................................................109 Federal Budget Act (Bundeshaushaltsgesetz, BGBl 213/1986) Arts 17a–17f..................................................................................................140 Federal Law Gazette Act (Bundesgesetzblattgesetz, BGBl 100/2003)......142 Federal Ministries Act (Bundesministeriengesetz, BGBl 76/1986)............126 Federal Tax Penal Act (Finanzstrafgesetz, BGBl 129/1958).......................185 Finance Acts (Bundesfinanzgesetze).........................................96, 108, 138–40 Finance Framework Acts (Bundesfinanzrahmengesetze)............................139



Table of Legislation  xxi

Fiscal Equalisation Act (Finanzausgleichsgesetz).........................................159 Fundamental Rights Application Act (Grundrechtsbeschwerde-Gesetz, BGBl 864/1992)...........................................................................................190 Incompatibility Act (Unvereinbarkeitsgesetz, BGBl 545/1980), Art 2(4)......57 Industrial Code 1859 (Reichsgewerbeordnung 1859, RGBl 227/1859)........................................................................28, 160–2, 169 Initiative Act (Volksbegehrengesetz, BGBl 344/1973)..................................80 Law on the Establishment of a German-Austrian Constitutional Court (Gesetz über die Errichtung eines deutschösterreichischen Verfassungsgerichtshofes, StGBl 48/1919)..........................................6, 177 Law Establishing Principles for the Regulation of Communal Administration (Gesetz vom 5. März 1862, womit die grundsätzlichen Bestimmungen zur Regelung des Gemeindewesens vorgezeichnet werden, RGBl 18/1862)..............................................................................171 Law on the Emoluments and Pensions of the Highest Federal Office Holders and Other Functionaries (Bundesgesetz über die Bezüge und Pensionen der obersten Organe des Bundes und sonstiger Funktionäre, Bezügegesetz, BGBl 273/1972)....................................................................73 National Socialism Reactivation Act 1945 (Verbotsgesetz, BGBl 127/1945)........................................................................................................50 Nationalisation Act 1946 (Verstaatlichungsgesetz, BGBl 1946/168)........144 Nationalisation Act 1947 (2. Verstaatlichungsgesetz, BGBl 1947/81)......144 Nuclear Power Prohibition Act (Atomsperrgesetz, BGBl 1978/676).........86 Parliamentary Club Financing Act (Klubfinanzierungsgesetz, BGBl 1985/156)........................................................................................ 54–5 Political Parties Act 1975 (Parteiengesetz, BGBl 404/1975)......40, 49–52, 55 Art 1............................................................................................................49, 51 Art 1(2).............................................................................................................49 Art 2..................................................................................................................53 Art 2a................................................................................................................53 Private Radio Broadcasting Act 2001 (Bundesgesetz, mit dem Bestimmungen für privaten Hörfunk erlassen werden, BGBl I 2001/20)........................................................................................................239 Private Television Broadcasting Act 2002 (Bundesgesetz, mit dem Bestimmungen für privates Fernsehen erlassen werden, BGBl I 2002/84)........................................................................................................239 Protection of Personal Liberty Act (Gesetz zum Schutz der persönlichen Freiheit, RGBl 87/1862)..................................................................... 209, 211 Protection of the Rights of the Home Act (Gesetz zum Schutz des Hausrechts, RGBl 88/1862)............................................................... 209, 211

xxii  Table of Legislation Recognition Act 1874 (Anerkennungsgesetz, RGBl 68/1874)......195–6, 229 Referendum Act (Volksabstimmungsgesetz, BGBl 79/1973)......................84 Reform of the Organisation of the Austrian Administration (Verwaltungsorganisationsreform BGBl I 65/2002)...............................185 Registered Religious Communities Legal Status Act (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, BGBl I 1998/19)...........................................................................................229 Regulation of Market Prices Act (Preisgesetz, BGBl 1992/145)...................56 Representative Body of the People Act 1919 (Gesetz über die Volksvertretung, StGBl 179/1919) Art 1(9)...............................................................................................................7 Road Traffic Act (Straßenverkehrsordnung, BGBl 159/1960).....................92 Roads Act 1971 (Bundesstraßengesetz, BGBl 286/1971) Arts 4, 7 and 7a................................................................................................91 Rule of Procedure of the State Government 1918........................................125 Rules of Procedure of the National Council Act = Standing Orders of the National Council (Geschäftsordnungsgesetz, BGBl 410/1975)........................................................................... 63–4, 81–3, 97–8, 118 Art 2(8).............................................................................................................69 Art 57................................................................................................................81 Tenancy Agreements Act (Mietengesetz, BGBl 872/1922)........................232

Other National Instruments France Declaration on Human Rights.............................................................................2 Germany Basic Law (Grundgesetz)..............................................................................14, 30 Art 21................................................................................................................51 Law on Political Parties (Parteiengesetz) Arts 6 and 9......................................................................................................51 Art 25................................................................................................................55 Weimar Constitution...........................................................................................14 Italy Constitution Art 117............................................................................................................167 United States Constitution...........................................................................................................2



Table of Legislation  xxiii

Virginia, Bill of Rights of 1776.........................................................................208

European Union Lisbon Treaty................................................................................ 27, 95, 136, 240 Art 2................................................................................................................213 Art 3(3)...........................................................................................................213 Art 3a................................................................................................................27 Protocol on the Application of the Principles of Subsidiarity and Proportionality................................................................................................95 Protocol on the Role of National Parliaments............................................95 TFEU (Treaty on the Functioning of the European Union) Art 18..............................................................................................................227 Art 126............................................................................................................141 International Instruments European Convention on Human Rights (ECHR)............. 1, 16, 30, 130, 135, 175, 180–2, 184–5, 187, 191, 194, 207, 211, 214, 221, 231, 241, 246, 250 Art 2................................................................................................................220 Art 5.......................................................................................180, 185, 231, 244 Art 6...........................................129–30, 153, 175, 180–5, 197, 205, 231, 244 Art 7....................................................................................................... 120, 122 Art 8............................................................................................... 194, 214, 226 Art 9....................................................................................................... 195, 230 Art 10..............................................................................................................226 Art 10(1).........................................................................................................239 Art 10(2).................................................................................................... 238–9 Art 11..............................................................................................................195 Art 11(2).........................................................................................................227 Art 13..............................................................................................................191 Art 14..............................................................................................................230 Protocol No 1 Art 3............................................................................................................. 65–6 International Convention on the Elimination of All Forms of Racial Discrimination..................................................................................... 212, 227 State Treaty of St Germain 1919................................................. 2, 7, 9, 151, 211 State Treaty of Vienna 1955...............................................................................15 Art 7................................................................................................................212 Art 8..................................................................................................................65



Table of Legislation  xxiii

Virginia, Bill of Rights of 1776.........................................................................208

European Union Lisbon Treaty................................................................................ 27, 95, 136, 240 Art 2................................................................................................................213 Art 3(3)...........................................................................................................213 Art 3a................................................................................................................27 Protocol on the Application of the Principles of Subsidiarity and Proportionality................................................................................................95 Protocol on the Role of National Parliaments............................................95 TFEU (Treaty on the Functioning of the European Union) Art 18..............................................................................................................227 Art 126............................................................................................................141 International Instruments European Convention on Human Rights (ECHR)............. 1, 16, 30, 130, 135, 175, 180–2, 184–5, 187, 191, 194, 207, 211, 214, 221, 231, 241, 246, 250 Art 2................................................................................................................220 Art 5.......................................................................................180, 185, 231, 244 Art 6...........................................129–30, 153, 175, 180–5, 197, 205, 231, 244 Art 7....................................................................................................... 120, 122 Art 8............................................................................................... 194, 214, 226 Art 9....................................................................................................... 195, 230 Art 10..............................................................................................................226 Art 10(1).........................................................................................................239 Art 10(2).................................................................................................... 238–9 Art 11..............................................................................................................195 Art 11(2).........................................................................................................227 Art 13..............................................................................................................191 Art 14..............................................................................................................230 Protocol No 1 Art 3............................................................................................................. 65–6 International Convention on the Elimination of All Forms of Racial Discrimination..................................................................................... 212, 227 State Treaty of St Germain 1919................................................. 2, 7, 9, 151, 211 State Treaty of Vienna 1955...............................................................................15 Art 7................................................................................................................212 Art 8..................................................................................................................65

1 History and Character of the Austrian Constitution

O

Introduction – History of the Austrian Constitution – Character of the Austrian Constitution – Basic Principles of the Constitution – Conclusion I. Introduction

T

he Republic of Austria, a small, alpine state situated in the heart of Europe, draws on a great cultural tradition, suffers from some severe traumata and struggles with the dark side of its past and its heritage. All this is reflected in its constitution and both the way this constitution is read and lived. This chapter aims to provide the historical background for understanding Austria’s written as well as its efficient constitution. Both, the constitutional law and the constitutional doctrine are still strongly influenced by Austria’s monarchical past. The public law courts, the administrative system and the judicial system were basically established under the monarchy and adopted by the republic. The 1920 Constitution (in its 1929 version) was re-enacted after WWII which decisively affected its interpretation. Austrian scholars often used retrospective methods of reading the constitution. Only Austria’s accession to the ECHR and European Union challenged these traditional methods. The last section of this chapter deals with the core elements of the Austrian constitution. These core elements are held to be basic principles underlying the constitution such as the democratic principle, the federal principle or the principle of Rechtsstaat. They can only be amended by means of a referendum. The accession to the European

2  History and Character of the Austrian Constitution

Union was considered to severely affect these principles as a large set of legislative powers was transferred from the Austrian parliament to the EU’s political bodies. Therefore, a referendum seemed to be necessary. II. The History of the Austrian Constitution

The small republic emerged after the downfall of the Austro-Hungarian Monarchy in 1918 at the end of WWI. Its borders, established by the State Treaty of St Germain in 1919, mark the territory that ‘remained’ after national states like the Czechoslovakian Republic, Hungary, Yugoslavia and others broke away from the monarchy and Italy’s territorial demands were met. What ‘remained’ were mainly the German speaking parts of the empire, without those of Bohemia, of course, which became part of the newly formed Czechoslovakian Republic, thus neglecting their right to national self-determination otherwise seen as the principle of restructuring Europe. Reduced to approximately one tenth of its previous territory and population, and deprived of vast economic resources (both agricultural and industrial) and its traditional markets, hardly anyone believed in the viability of the republic. Nevertheless, in this traumatic and desperate situation a new constitution was enacted and, despite its provisional character, its core elements are still in force today. Thus, it may be addressed as one of the eldest constitutions in Europe, albeit it has always been a ‘constitution in the making’. A.  The Absolute Monarchy At the time when the US Constitution was adopted in 1788 and the French Declaration on Human Rights was pronounced in 1789, the term ‘Austria’ denominated two arch-dukedoms – one upon and one under the river Enns – which found themselves in a more or less loose union with other kingdoms and principalities under the House of Hapsburg, which also was referred to as the House of Austria.1 The term ‘Austria’ itself is alleged to be the Latin version of the old German 1  R Hoke, Österreichische und deutsche Rechtsgeschichte, 2nd edn (Wien, Böhlau, 1996) 198.



The History of the Austrian Constitution  3

‘austar’ meaning ‘eastern’; that is to say, a country in the east.2 How far in the east they were, Austrians could feel during several wars against the Muslim Turks. In the course of these wars Vienna was besieged twice, in 1529 and in 1689. These wars, especially the second siege of Vienna, must have been traumatic events and the experience of being an eastern outpost of Christendom may be regarded as one of the reasons why this country became a stronghold of the so-called counter-reformation and, consequently, the Roman Catholic Church. 1789 saw almost the end of the reign of Joseph II, son of Mary Therese. Not only did he rule over Hapsburg’s ‘hereditary dominions’ like his mother, but like his father he was also the crowned Emperor of the ‘Holy Roman Empire of the German Nation’. Vienna, the capital of the Hapsburg dominions, formed the political and cultural centre of large parts of Europe. Joseph II reigned as an absolute monarch, albeit ‘enlightened’. He, therefore, accepted use of his absolute powers to achieve the commonwealth of his subjects and his nations respectively. Of course, it depended on the monarch’s prudence and the prudence of his government to define the commonwealth of his nations and it was unthinkable to debate this issue in a (democratic) assembly. Thus, an ‘enlightened absolute monarch’ became a loving and caring father-figure to all his subjects. The great German philosopher Kant described such a relationship between a monarch (government) and the people as ‘paternalistic’.3 Personal freedom, with the exception of freedom of religion (denominations other than the Roman Catholic were officially tolerated), was not an overall issue: as an example, university professors were only entitled to literally read from books officially approved by the government. Nevertheless, the idea of a caring government became very powerful in this part of Europe, certainly more powerful than the idea of a free market and this is still felt today. Not only did it support the establishment of one of the world’s most elaborated social welfare systems, but it is also present in everyday language when a Governor of a state is sometimes referred to as ‘Landesvater’ or ‘Landesmutter’ (the state’s father or mother). Joseph II continued the transformation of the more or less loose union of kingdoms and principalities under the House of Hapsburg to 2

 E Zöllner, Der Österreichbegriff (Wien, Böhlau, 1988) 18.   I Kant, Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis, 5th edn (Hamburg, Meiner, 1992) 20ff. 3

4  History and Character of the Austrian Constitution

a modern territorial state, a process that had been initiated by his mother Mary Therese and that only excluded Hungary. It was Joseph II who particularly introduced reforms that shaped the Austrian administrative system for the upcoming centuries. Their effects are still present today. In 1792, Ferdinand II, who had succeeded his brother Joseph II only in 1790, died and his son Franz inherited the Hapsburg throne and also became elected Emperor of the Holy Roman Empire of the German Nation. This Empire ended in 1806 for various reasons; already in 1804, Franz II claimed the title Emperor of Austria (and thus became Franz I) to equal Napoleon I, who crowned himself Emperor of France in 1804. At that time, the Austrian Monarchy was amongst the most reactionary countries in Europe. While constitutions were introduced in several southern German principalities following the Napoleonic wars, Austria remained an absolute monarchy and introduced an even more oppressive system based on censorship after the 1815 Congress of Vienna. This system is deeply linked with the name of Metternich. It lasted until March 1848 and is, therefore, also known as the pre-March period (Vormärz). In 1848, however, the revolutions that swept through Europe also reached the Austrian Monarchy and forced the Austrian Emperor to concede to the formation of a ‘Reichstag’ (a general assembly), which was entrusted with drafting a constitution. To avoid it being impeded by insurgents, it was relocated from Vienna to Kremsier. Although it produced a draft constitution, the attempt eventually failed. The Emperor Ferdinand I, who was said to be ill (and probably was mentally incapable), had to abdicate and his young nephew Franz Joseph took the throne, dissolved the Reichstag and thus prolonged the absolute monarchy for more than another decade. Ferdinand, who lived on for quite some time, must have had a rather cynical view of his successor and the 1848 events. As Franz Joseph dramatically failed to win the war against Prussia, Ferdinand allegedly remarked that he could easily have managed that as well.4 Nevertheless, in 1848 one sustainable reform was achieved: jurisdiction over peasants by their feudal lords was abolished and a new judicial system was introduced in the fields of criminal and civil law. It featured a Supreme Court and several criminal and civil law courts – amongst others provincial courts and provincial courts of 4  F Herre, Kaiser Franz Joseph von Österreich – sein Leben, seine Zeit (Köln, Kiepenheuer & Witsch, 1992) 80.



The History of the Austrian Constitution  5

appeal. These courts still exist today. 1848 also saw the introduction of municipalities administering their affairs partially in an autonomous sphere. Municipalities still enjoy a substantive right to self-administration. B. The Constitutional Monarchy In the 1860s, at last, liberal movements succeeded in establishing a constitution based on the separation of powers and on fundamental rights. Starting in 1861 and continuing, above all, in 1867, following the defeat at the battle of Königgrätz (1866)5 and a constitutional compromise with Hungary (the so-called ‘Ausgleich’),6 Basic Laws (Staatsgrundgesetze) came into force in the Austrian part of the monarchy. These laws transformed the absolute monarchy into a constitutional monarchy. One of the main characteristics of the constitution was the right of the Imperial Council (Reichsrat) to participate in the legislative process. Furthermore, the Basic Laws included provisions concerning jurisdiction and fundamental rights. The Basic Law on the General Rights of Nationals (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger, RGBl 142/1867) is still in force today, remaining at the heart of the guarantees of fundamental rights in Austria. Another 1867 Basic Law (Staatsgrundgesetz über die Einsetzung eines Reichsgerichtes, RGBl 143/1867) established an Imperial Law Court (Reichsgericht) which was furnished with various powers, especially to pronounce on alleged infringements of constitutionally guaranteed political rights after exhaustion of all other stages of legal remedy offered by the administrative system. Thus, only administrative 5

 The defeat against the Prussian Army had a devastating effect on the empire and its population for various reasons. Consequently, in the carnival season 1866– 67 many parties and balls were cancelled. The ‘Wiener Männergesangsverein’ (a men’s choir) nevertheless gave a concert in which it performed a piece that offered a rather cynical and satirical view on the war events. The tune had been written by Johann Strauß jr. Initially not very popular, it became a great success in its instrumental version. Nowadays, it is known throughout the world as the ‘Blue Danube Waltz’. 6  Such a constitutional compromise was not reached with the Czechs: cf Z Kárník, ‘Attempts to Achieve a German-Czech Ausgleich in Habsburg Austria and the Consequences of its Failure’ in U Ra’anan, M Mesner, K Armes and K Martin (eds), State and Nation in Multi-Ethnic Societies (Manchester-New York, Manchester University Press, 1991) 89.

6  History and Character of the Austrian Constitution

rulings could be contested at the Imperial Law Court. In 1875 the Administrative Court (Verwaltungsgerichtshof ), already foreseen in Article 15 of the Basic Law on Judicial Power (Staatsgrundgesetz über die richterliche Gewalt, RGBl 144/1867), was established. It was entitled to review administrative decisions insofar as they violated substantial rights. The Administrative Court developed an impressive jurisprudence especially with regard to administrative procedural law, which it derived from pre-legal principles rather than from codified statutes.7 Both central law courts formed a system of public law review in the monarchy that was adopted by the republic. The Administrative Court still exists and the Imperial Law Court was transformed into the Constitutional Court (Verfassungsgerichtshof) by a 1919 law already.8 It was additionally furnished with the power to review laws. Consequently, the Constitutional Court nowadays exercises powers that – in a comparative view – are rather uncharacteristic and surprising.9 The Austrian court system, with respect to both private and public law courts, was developed over more than five decades and never re-organised in a systematic approach. C.  The First Republic, the Civil War and the Authoritarian Regime As already mentioned, the end of WWI also marked the end of the monarchy. As more and more nations declared their independence, the Austro-Hungarian Empire broke up. In the remaining German speaking part of Austria a Provisional National Assembly (Provisorische Nationalversammlung) took over state affairs. It consisted of members of the Imperial Council, who represented different political parties, mainly German Nationals, Conservatives and Social Democrats with the Social Democrats probably having the most elaborated plan to found a republic.10 The Assembly elected a State Council (Staatsrat) and drew up a provisional constitution in which the ‘Republic of German     7   eg C Jabloner, ‘Rechtskultur und Verwaltungsgerichtsbarkeit’ (2001) Juristische Blätter 137ff; R Machacek, Verfahren vor dem VfGH und VwGH, 6th edn (Wien, Manz, 2008) 130ff.     8  StGBl 48/1919.     9  See chapter six. 10  R Saage, ‘Die deutsche Frage – Die Erste Republik im Spannungsfeld zwischen österreichischer und deutscher Identität’ in H Konrad and W Maderthaner (eds), Das Werden der Ersten Republik . . . der Rest ist Österreich (Wien, Gerold, 2008) 65, 75.



The History of the Austrian Constitution  7

Austria’ was declared part of the recently formed German Republic. Questions concerning the participation of German Austria in the legislation and administration of the German Republic were to be addressed in further regulations provided by special laws. The desire to join Germany was widespread because of the pessimistic view that the small country that ‘remained’ after the former monarchy had no chance of surviving on its own. Not only the German Nationals, but foremost the Social Democrats also supported this idea and pressed ahead with it. The Conservatives became reluctant due to the initial success of left wing parties in Germany. The Germans, on the other hand, did not show an overall enthusiasm either.11 Mainly on the initiative of the French delegation,12 the State Treaty of St Germain13 prohibited Austria from merging with Germany. German Austria was thus transformed into the Republic of Austria, nevertheless the German language was proclaimed the official language – without prejudice to the rights provided by law to linguistic minorities, as the St Germain treaty forced Austria to respect the rights of minorities. Subsequently, a Constituent National Assembly (Konstituierende Nationalversammlung) was elected. Its main task was to draft a new, Federal Constitution (B-VG) which was passed by parliament on 1 October 1920 and entered into force on 10 November 1920. Interestingly, Article 1 paragraph 2 of the 1919 Law on the Representative Body of the People (Gesetz über die Volksvertretung) stipulated that the new constitution should foresee that amendments could only be passed with a referendum. Probably because almost everybody believed in the provisional nature of the constitution (even after the 1919 St Germain Treaty), it was decided otherwise. Constitutional amendments were foreseen to be passed on the basis of a two-thirds majority of the National Council and to be denominated accordingly. Even more important, amendments were not necessarily to be incorporated in the original document. This supported the effect that the constitution became a most flexible one. Although the republic insisted that it could not be regarded as the successor state to the monarchy, there is remarkable continuity between 11

 See Saage, ibid, 77.  L Mikoletzky, ‘Saint-Germain und Karl Renner’ in Konrad and Maderthaner (eds), Das Werden der Ersten Republik . . . der Rest ist Österreich, n 10, 179, 180. 13  See also B Jelavich, Modern Austria: Empire and Republic, 1815–1986 (Melbourne, Cambridge University Press, 1987) 155, 162. 12

8  History and Character of the Austrian Constitution

the 1920 Constitution and the constitution of the nineteenth century. The administrative system and the judicial system, for example, both systems established under the monarchy, were adopted by the 1920 Federal Constitution. The crucial difference between the monarchy and the republic basically lay in two fields. For one, the republic was based on a democratic structure. Parliament was no longer restricted to participation in the legislative process, but became the central organ and the (former monarchic) administration was made subordinate to the law. The place of the former monarch was taken by a Federal President (Bundespräsident), who was initially elected by and accountable to the Federal Assembly (Bundesversammlung) and who represented Austria internationally. The sovereignty of the Austrian people was expressed by parliament’s legislation. As long ago as 1920, Article 1 of the Federal Constitution read: ‘Austria is a democratic republic. Its law emanates from the people’. Interestingly, however, the Austrian people were never given the opportunity to hold a vote on the new constitution. It was adopted only by their representatives who were also representatives of the political system; it therefore essentially meets the requirements of the political system. Further, the centralised State of the monarchy was transformed into a federal republic. The provinces (Kronländer), which had the legal status of self-governing bodies, became states of their own right and joined the republic. In two conferences, their representatives expressed their view on the constitution in the making and clarified their points of interest. From the very beginning, the political parties were in charge of building the new state and drafting the constitution. Founded in the late nineteenth century, there were basically Social Democrats (Sozialdemokratische Arbeiterpartei – SDAP) and Christian Socials (Christlich-soziale Partei – ‘CSP’) which formed the centre of so-called ‘camps’ (Lager).14 These ‘camps’ were based on fundamentally different moral concepts, ideologies and ideas about the state. German nationalist parties, often referred to as ‘third camp’, supported the Christian Socials in coalition governments. Amongst the parties forming the ‘third camp’, a party could be found which, originating from Northern Bohemia and founded in the early 1900, renamed itself German National Socialist Labour Party in 1918 (Deutsche Nationalsozialistische Arbeiter Partei

14

 See chapter two.



The History of the Austrian Constitution  9

– DNSAP).15 Although the concept of National Socialism was successful later in Germany and supported largely by unemployed former soldiers, army representatives and civil servants, the idea and the concept dates back to the early 1900s and has its roots (also) in the AustroHungarian Monarchy, where national conflicts could not be solved.16 The atmosphere between these ‘camps’ can be described as highly neurotic and mischievous, and there was one point all three camps had in common: democracy as proclaimed in Article 1 of the Constitution was seen merely as a transitional phase that should be replaced by an authoritarian regime. The consequence of the parties’ fundamental differences could be felt in basic issues of the new constitution, such as federalism and fundamental rights. Whereas the Social Democrats wanted to establish a centralised state, the Christian Social Party stood for a strong position of the states (Länder). The result was (and still is) a federal state with most powers vested in the Federation and very little left to the states. As it was not yet possible to pass the provisions containing the division of powers between the Federation and the states, in 1920, they only entered into force on 1 October 1925. In 1920, the main political groups could not agree on a new catalogue of fundamental rights, basically because the Social Democrats demanded the incorporation of social rights that were emphatically rejected by the Conservatives. As a consequence, the 1867 Basic Law on the General Rights of Nationals (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger, RGBl 142/1867) remained in force. A possible reform of both the Austrian federalism and the fundamental rights charter, which is deemed to be desirable, still seems impossible because of the traditional differences.17 The conflict between the parties dragged on and became even more violent during the 1920s. Part of the violence can be attributed to the fact that the 1919 State Treaty of St Germain had limited Austrian 15   G Jagschitz, ‘Die Nationalsozialistische Partei’ in E Tálos et al (eds), Handbuch des Politischen Systems Österreichs – Erste Republik 1918–1933 (Wien, Manz, 1995) 230, 233f. 16   G Stourzh, ‘Problems of Conflict Resolution in a Multi-Ethnic State: Lessons from the Austrian Historical Experience, 1848–1918’ in U Ra’anan, M Mesner, K Armes and K Martin (eds), State and Nation in Multi-Ethnic Societies (Manchester, Manchester University Press, 1991) 67, 80. 17   cf A Pelinka, Out of the Shadow of the Past (Oxford, Westview Press, 1998) 38, 39.

10  History and Character of the Austrian Constitution

forces to 100,000 troops. As a consequence, private armies were established – the ‘Heimwehr’ siding with the Conservatives and the ‘Republikanischer Schutzbund’ supporting the Social Democrats. While the Conservatives dominated on the federal level (mostly) in coalition governments with the German Nationals, the Social Democrats were especially strong in Vienna where they favoured elements of a social welfare state, predominantly in the field of public housing.18 Fortresslike council estates still leave their mark on Vienna’s townscape. While Social Democrats may have prided themselves that they solved the housing problem after WWI, Conservatives may point to the fact that the private housing market collapsed under heavy taxation and may question if membership to the Social Democratic Party was a prerequisite for obtaining a (fairly small) flat in one of the council estates. With more than 700,000 members, the Viennese Social Democratic Party was the largest political party of that time.19 While the Social Democrats might have dreamed of establishing a Soviet system in Austria (in their ‘Linzer Programm’ they even voted for violence to push it through), the Conservatives drifted more and more towards fascism. Following their serious armed clash in 1927, which saw files being burnt and thrown out of the Palace of Justice, home to the Supreme Court, a thorough amendment to the constitution was discussed and set into force in 1929. To maintain law and order, the position of the Federal President was strengthened in 1929 (direct election by the people, power to appoint the Federal Chancellor, right to issue provisional ordinances amending laws). These changes resulted again from a compromise between two totally opposed positions: whereas the Conservatives would have preferred to restore the monarchy, the Social Democrats wanted to maintain or even strengthen the position of parliament.20 As is generally known, attempts to stabilise Austria’s domestic political situation by reforming the Federal Constitution did not succeed. The experiment of establishing a democracy without democrats was bound to fail. And there were not many democrats in the 1920s. One of the 18  H Konrad, ‘Das rote Wien – Ein Konzept für eine moderne Großstadt?’ in H Konrad and W Maderthaner (eds), Das Werden der Ersten Republik . . . der Rest ist Österreich (Wien, Gerold, 2008) 223, 232f. 19   W Maderthaner, ‘Die Sozialdemokratie’ in Tálos et al, Handbuch des Politischen Systems Österreichs, n 15, 177, 180. 20   cf Pelinka, Austria: Out of the Shadow of the Past, n 17, 39.



The History of the Austrian Constitution  11

most prominent was Hans Kelsen, law professor and member of the Constitutional Court, who published a book on the intrinsic value of democracy.21 In his book, he emphasises that democracy is not just a means to autocratic ends (which was the common view of many Austrian politicians), but an end in itself. Introducing the compromise as the core element of a democratic government, the book became the script for the Second Republic after 1945, when everything had to be built around a compromise between the Conservatives and the Social Democrats, even if it were a shabby one. Sometimes the impression was given that compromises were made even before conflicts were established. Anyhow, Kelsen’s ideas on democracy did not influence the course of history in the late 1920s and 1930s. Armed confrontations between the political camps, which led to a civil war, resulted in the dissolution of parliament and the introduction of an authoritarian-corporate constitution. This constitution was underpinned by a new Austrian patriotism that drew on the great past of the monarchy. Supported by the Christian Socials, it led to a catholic authoritarian regime that dissolved all political parties only to form the ‘Vaterländische Front’, which introduced symbols similar to those of the German Nazis.22 Contemporary witnesses emphasise that Mussolini exercised pressure on the Austrian government to form an authoritarian state in order to prevent Austria from occupation by Hitler’s Germany.23 The 1934 so-called authoritarian-corporate constitution abolished the idea of elections. It attributed legislative powers to a Federal Diet (Bundestag) consisting of delegates, which were nominated by ‘councils’ – a State Council (Staatsrat), a Federal Council of Culture (Bundeskulturrat), a Federal Council of Commerce (Bundes­ wirt­ schaftsrat) and a council representing the states (Länderrat). Members of these councils were either appointed by the Federal President or by 21

 H Kelsen, Vom Wesen und Wert der Demokratie, 2nd edn (Tübingen, Mohr, 1929); parts of this book have been translated into English, see H Kelsen, ‘On the Essence and Value of Democracy’ in AJ Jacobson and B Schlink (eds), Weimar: A Jurisprudence of Crisis (Berkeley-Los Angeles, University of California Press, 2002) 84. 22  Sometimes, this authoritarian regime is referred to as ‘austro facist’, emphasising the similarities between Austria, Italy and Germany. But as the term ‘fascism’ usually describes an ideology which also serves as a religion, it has to be stressed that the Austrian regime was strictly catholic. 23   J Deutsch, Ein weiter Weg (Wien, Amalthea, 1960) 196.

12  History and Character of the Austrian Constitution

various corporations (Berufsstände) and churches. These councils had to pre-discuss all laws which were to be passed by the Federal Diet. This system was only partly effective – many laws were just pronounced by the government. In cases when the new system worked, it could be observed that laws that were pre-discussed and sanctioned by the councils were passed by the Federal Diet without further amendments (as the Federal Diet was only entitled to either pass the bill or reject it). It is interesting to see that this procedure became part of the efficient constitution after WWII under the system of social partnership, although any similarity between the 1934 Constitution and the social partnership is emphatically denied by advocates of the social partnership.24 Even if the introduction of a genuine Austrian authoritarian regime was designed to save Austria from seizure by Germany, this attempt failed. In March 1938, the small country became part of Nazi-Germany thus ending a period that was later called ‘The First Republic’. According to the official Austrian doctrine after the war, the seizure of Austria (‘Anschluss’) was an occupation rather than an annexation.25 As Hitler’s troops did not experience any resistance from Austrian forces very much to their surprise it is still under discussion how willingly the Austrians surrendered to their fate. The truth probably has more than one answer. Of course, the ideas of fascism and anti-semitism26 were not in general alien to the Austrian population. As already said, fascist concepts had their roots in Austria and anti-semitism was already quite common in the monarchy, fuelled by the then view of the Roman Catholic Church. Unemployment rates in Austria were very high, so there was hope Hitler could improve the economic situation, also the desire to join Germany had already been expressed in 1918. Many Austrians, therefore, identified themselves with the Nazi regime. Some even 24

  K Korinek, ‘Idee und Entwicklung der Sozialpartnerschaft in Österreich’ in G Ress (ed), Rechtsfragen der Sozialpartnerschaft (Köln-Berlin-Bonn-München, Carl Heymanns, 1987) 9, 30. 25  Offering a different view on the annexation of Austria by Germany see H Wright, ‘The Legality of the Annexation of Austria by Germany’ (1944) 4 The American Journal of International Law, 621, 635. 26   cf RS Wistrich, ‘Social Democracy, Antisemitism and the Jews of Vienna’ in I Oxaal, M Pollak and G Botz, Jews, Antisemitism and Culture in Vienna (London-New York, Routledge and Kegan Paul Inc, 1987) 111, 120. Also cf B Marin, ‘Antisemitism Before and After the Holocaust: the Austrian Case’ in I Oxaal et al, Jews, Antisemitism and Culture in Vienna, above 216, 233.



The History of the Austrian Constitution  13

became high profile party members and were heavily involved in the horrible concept of the ‘Final Solution’ (Endlösung), the systematic murder of the Jewish part of the population. Others, and this is also part of the truth, loathed the Nazis. Thousands died in concentration camps, were deported, emigrated or went underground. Austria lost vast parts of its intellectual elite in the 1930s and 1940s – a loss the country has not yet recovered from. D.  The Second Republic After WWII and the breakdown of the German Empire, mainly under the influence of the Soviet occupying power, in a first step political parties were formed: the SPÖ (Socialist Party of Austria, renamed Social Democratic Party of Austria after the fall of the Iron Curtain), representing the former social democratic camp and the ÖVP (Austrian People’s Party), the former Christian social camp. Because of the fact that the Christian Socials were seen as guilty of introducing the catholicauthoritarian regime in 1933/34, the Conservatives abstained from their old name and adopted the ideologically rather neutral ‘People’s Party’, although they never denied their Christian-catholic roots. The KPÖ (Communist Party of Austria) completed what initially was a three party system. The Communist Party was basically a Soviet invention – it never gained large support amongst the Austrian population. In the first election it won five per cent of the vote only to become more and more insignificant. Since 1959, it has never held a seat in the federal parliament. The three parties issued a declaration of independence (Unabhängig­ keitserklärung) in which they promised to rebuild the democratic republic of Austria in the spirit of the 1920/1929 Constitution (Art 1). As already in 1918, the political parties built or re-built the state. Therefore, it might be understandable that the political parties – SPÖ and ÖVP – adopted the attitude that the republic was their inheritance. Both parties gained an unprecedented influence not only in genuine political matters, but also in society and the economy. Not only were the ‘camps’ restored, large parts of Austria’s industry and banking sector were nationalised to avoid those assets being deemed ‘German property’ and taken over by the occupying Allied powers (mainly the Soviets). The two parties have been described by Austrian political scientists – quite frankly – as ‘feudal

14  History and Character of the Austrian Constitution

lords’.27 The main difference to the First Republic, of course, was that these two parties – splitting the country in ‘red’ and ‘black’ halves28 – vowed to co-operate. Disputes came into disrepute and were mainly conducted behind closed doors and Kelsen’s idea of compromise ruled the country. ‘Grand coalition’ governments were the logical consequence. Although the mutual distrust between the two parties never really subsided, harmony was largely feigned in public and supported by the system of the so-called ‘social partnership’.29 Even today, Austrian political scientists emphasise that the ability to manage conflicts in an argumentative way, something parliamentarianism might suggest and the constitution might have intended, is still underdeveloped.30 Nevertheless, the Second Republic saw a remarkable change in the parties’ attitudes and the politics that ensued. This was all done in the spirit of the 1920/1929 Constitution. Contrasting this approach, in Germany the former Weimar Constitution (Weimarer Verfassung ) was held responsible for the failure of democracy, so the drafters of the new constitution (the Bonner Grundgesetz ) made a conscious effort to avoid what was seen as the mistakes and weaknesses of the Weimar Constitution, thus placing great emphasis on the safeguarding of human dignity and fundamental rights. In Austria, however, the debate took a different turn, for various reasons. Austrians did not blame the constitution for the demise of democracy and the establishment of an authoritarian regime. And as the Austrian example may prove – democratic constitutions need to be implemented with a democratic attitude. A document by itself cannot hinder armed forces and the will of people to establish a dictatorship. Further, the Austrian situation was decisively different to that of Germany. While the ‘Bonner Grundgesetz’ was drafted as a provisional constitution for the zones occupied by Western forces taking into account the imminent division of Germany, Austria desperately sought to avoid the same fate. Debates over a new constitu27  See A Pelinka, ‘Abstieg des Parteienstaats – Aufstieg des Parlamentarismus’ in A Pelinka and F Plasser (eds), Das österreichische Parteiensystem (Wien-Köln-Graz, Böhlau, 1988) 35, 39. 28   A Pelinka, ‘Austrian Political Culture: from Subject to Participant Orientation’, in KR Luther and P Pulzer (eds), Austria 1945–1995. Fifty Years of the Second Republic (Aldershot, Ashgate, 1998) 110, 112. 29  See chapter two. 30   A Pelinka, ‘Eine Verwestlichung Österreichs? Zum Wandel des Politischen Systems durch den EU-Beitritt’ (1995) Zeitschrift für Parlamentsfragen (Sonderband) 279.



The History of the Austrian Constitution  15

tion thus might have triggered the danger of either dividing Austria into two parts or involving the Communist Party and the Soviets in the drafting of a new constitution. The best solution was therefore seen as reenacting the 1920 Federal Constitution in the revised version of 1929.31 Austria succeeded in doing so despite some mild resistance by the Soviets. This procedure enabled Austrians to eradicate the years 1933– 1945 from their memories. Consequently, this period easily fell into oblivion. Thus Austria failed to deal with its authoritarian past and the genuine Austrian roots of National Socialism accordingly. It was reminded of that failure by the world, which started to ask questions decades later. Of course there was a reaction to the Nazi regime. Austria enacted a constitutional law that provided for the severe punishment for the reactivation of National Socialism (Nationalsozialistische Wiederbetätigung). It might even be argued that the constitution was thereby enriched by a moral (anti-fascist) concept. Further, former members of the NSDAP and its subdivisions had to register. Former members of the NSDAP, the SS and the SA were excluded from the first general election after the war in 1946, only to be re-admitted in 1949. Former members of the NSDAP were free to join other parties and in doing so they were held to have regained their integrity. In 1949 a new party was formed – the ‘Verband der Unabhängigen’ (VdU – Union of Independents) that started to rebuild the third camp and that merged into the FPÖ (Austrian Freedom Party) in 1956. Initially, the ‘third camp’ gained approximately 16 per cent of the vote, only to drop to 5–8 per cent in the following elections. From the second half of the 1980s onwards the third camp raised its share of the vote to more than 20 per cent and might even hold the relative majority nowadays. It could be more influential if it had not split into three parties only recently. The signature of the 1955 State Treaty (Staatsvertrag) brought an end to the control of the Allied forces over Austria and restored its sovereignty. The State Treaty came at a price Austria was more than willing to pay: according to the Moscow Memorandum, Parliament enacted the federal constitutional law of 26 October 1955 on Austrian Neutrality (Bundesverfassungsgesetz über die Neutralität Österreichs, BGBl 211/1955). All 31

 E Loebenstein, ‘Verfassungspolitische Zielvorgaben des Jahres 1945 und ihre Verwirklichung aus der Sicht eines Zeitzeugen’ in E Weinzierl and O Rathkolb et al (eds), Justiz und Zeitgeschichte, Vol 2 (Wien, Verlag Jugend & Volk, 1995) 808, 820ff.

16  History and Character of the Austrian Constitution

relevant political powers were strongly in favour of this status, which has shaped the character of the Second Republic. As a consequence, Austria had a very specific position during the Cold War, which largely became obsolete with the fall of the Iron Curtain.32 Austria’s membership of the European Union and the evolution of the Common Foreign and Security Policy have cast doubt on the concept of neutrality: many question whether the concept has changed or whether neutrality has de facto already been given up.33 In 1958, Austria adopted the European Convention on Human Rights in the form of a constitutional law and made it directly applicable. After an initial period of reluctance, the Constitutional Court followed the continuously evolving jurisprudence of the ECtHR, which had substantial effects on the Austrian legal system, especially regarding the incapability of the Social Democrats and the Conservatives to agree on a new fundamental rights charter until today, although various commissions and committees were set up to draft a new version. While it was impossible to agree on major issues like a new charter of fundamental rights, the fact that the Social Democrats and the People’s Party enjoyed a two-thirds majority in parliament for most of the Second Republic (during some legislative periods these two parties held about 95 per cent of the seats) enabled them to amend the constitution almost at will, especially in times of grand coalition governments. As long as ‘compromise’ between the two camps was the leitmotiv of domestic politics, the main function of the constitution was to uphold this idea. As not only rules of substantively ‘constitutional’ character, but also provisions relating to any other matter may be enacted as constitutional laws in Austria, each point considered essential by one of the two parties could be regulated by means of constitutional provisions to protect it from easy changes (regardless of whether this point would be essential for the political system as a whole). The system was based on reciprocity and worked even in periods when a single party controlled the government (the ÖVP in the 1960s and the SPÖ in the 1970s). 32

 See G Bischof, A Pelinka and R Wodak (eds), Neutrality in Austria (New Brunswick, Transaction Publishers, 2000). See also O Rathkolb, ‘Superpower Perceptions of Austrian Neutrality’, in Luther and Pulzer, Austria 1945–1995, n 28, 67. 33  See, for example, S Griller, ‘Verfassungsfragen der österreichischen EU-Mitgliedschaft’ (1995) Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung 107, 110ff.



The History of the Austrian Constitution  17

Numerous amendments of the constitutional document ensued and numerous constitutional laws and even constitutional provisions in simple laws were enacted. While the 1920 Federal Constitution that was drafted and designed under the influence of Hans Kelsen was short and clear in language as well as in structure, these amendments led to a situation that was already described as a ‘shattered constitution’34 in the 1960s. Further – and especially recent – amendments have aggravated this situation rather than relieved it. Major amendments have related to the constitution of the municipalities and the school system (1962), the extension of the powers of the Administrative Court (Verwaltungs­ gerichtshof) and the Constitutional Court (Verfassungsgerichtshof; both in 1975), the establishment of the Ombudsman Board (Volksanwaltschaft), the strengthening of the position of the Federal Council (Bundesrat), the creation of Independent Administrative Tribunals (Unabhängige Verwaltungssenate) and many more. In 1994, Austrians voted in favour of joining the European Union, which came into effect on 1 January 1995. Fifteen years later, this can be regarded as the biggest constitutional change in substance, at least since the end of WWII. Not only did it further constrain parliament’s powers by shifting legislative competencies to the government, but it also had an even more centralising effect on the separation of powers between the Federation and the states. Furthermore, it significantly curtailed the power of the Constitutional Court. This all happened as a mere consequence of adopting the EU treaties without amending the wording of the 1920 Constitution. Provisions that were meant to counterbalance the shift of powers between parliament and government enacted in the aftermath of the accession to the EU have remained vastly ineffective.35 Roughly a month before the European Union closed its Convention on a European Constitutional Treaty, Austrian politicians established a Constitutional Convention for Austria, as a reform of the Austrian constitution seemed to be desirable. Austrian federalism, a system of public administration that seemed far too costly along with a new charter of fundamental rights and other issues were targeted. The Convention had already finished its work in 2005 and presented a draft for a new constitution. The attempt to enact a new constitution 34  H Klecatsky, ‘Hat Österreich eine Verfassung?’ (1965) Juristische Blätter 544; H Klecatsky, ‘Zur Neukodifikation des österreichischen Bundesverfassungsrechts’ (1995) Juristische Blätter 406 (‘Ruinenfeld der Verfassungstrümmer’). 35  See chapter three.

18  History and Character of the Austrian Constitution

failed because of probably the same ideological gaps between the political parties that made clear solutions almost impossible in the 1920s. However, following the general election of October 2006 a commission of experts (Expertengruppe) was established at the Federal Chancellery to draft a comprehensive reform based on the work of the Constitutional Convention. Only parts of the commission’s work have led to constitutional amendments enacting new provisions regarding, for example, the electoral system (BGBl I 27/2007), the federal budget (BGBl I 1/2008) and the Ombudsman Board, independent authorities, autonomous public bodies and international treaties (BGBl I 2/2008) and the establishment of an Asylum Court (BGBl I 2/2008). In addition, a draft by the Commission of Experts on clearing up the vast body of constitutional laws has been adopted by parliament (Bundesverfassungsrechtsbereinigungs­ gesetz).36 III. The Character of the Austrian Constitution

The 1920 Federal Constitutional Law (Bundes-Verfassungsgesetz , B-VG – the hyphen is essential when referring to this law) is the core document in Austrian constitutional law.37 It established a federal republic and the constitutional system may be described as a constrained parliamentarianism,38 albeit featuring elements of a presidential system due to the 1929 amendment. A.  Main Features of the Constitution According to the constitution, the centre of state authority is the federal parliament which consists of two chambers, the National Council 36  E Wiederin, ‘Verfassungsbereinigung’ in G Lienbacher and G Wielinger (eds), Öffentliches Recht Jahrbuch 2008 (Wien-Graz, Neuer Wissenschaftlicher Verlag, 2008) 45, 49. 37   It is available in its German version as well as in an English version on the website of the Federal Chancellery, www.ris.bka.gv.at. The English version may be regarded as a more or less official translation albeit the text is not authentic. 38  See B Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633, 663.



The Character of the Austrian Constitution  19

(Nationalrat) and the Federal Council (Bundesrat). While the National Council is directly elected by the people, members of the Federal Council are elected by the State Parliaments (Landtage). Both were established to perform legislation work and exercise control over the executive branch of government. The authority of the legislator is limited in several respects. One limit is set by the Federal President, who is also elected directly by the people and who appoints the Federal Cabinet. The Federal Cabinet (Bundesregierung) is the head of the federal administration and is answerable to the National Council, thus limiting presidential powers to the appointment of cabinet members. The administration is organised hierarchically: Higher administrative authorities may give directions (Weisungen)39 to lower administrative authorities. In theory, the democratic legitimacy of the Austrian administration is guaranteed in two ways: It may only act on the basis of laws enacted by parliament and its heads are answerable to parliament. The Federal Council is part of the architecture of Austrian federalism, which also limits state authority by dividing legislative powers (vertically) between the federal parliament and State Parliaments. State Parliaments are directly elected by the people of the states. State administration is provided by State Cabinets (Landesregierungen), which form the head of a hierarchically organised state administration and which answer to the respective State Parliament. Like the federal administration, administration of the states must be based on law. Apart from that, there are various self-governing or autonomous bodies (Selbstverwaltungskörper). They are not incorporated into the hierarchical system of administration. The characteristic feature of selfgoverning bodies is that they are free from directions from the general federal or state authorities in their areas of autonomy. Self-governing bodies thus lack one source of democratic legitimisation, as their heads are not answerable to any parliament. To compensate for this perceived deficit, the organs of an autonomous body have to be elected. Another type of entity that is not integrated into the hierarchical system is an independent authority that might be established in accordance with Article 20 paragraph 2 of the Federal Constitution. To counterbalance the lack of directions, the constitution provides for the supervision of 39  The official translation of the Austrian constitution uses the term ‘instruction’ instead of ‘direction’. As ‘direction’ is obviously more common with English administrative law and probably also the more accurate translation of the German ‘Weisung’, it is used throughout this book.

20  History and Character of the Austrian Constitution

independent authorities by the highest authorities of the Federation and the states and, in some cases, for the dismissal of their members. Furthermore, the heads of (federal) independent authorities are answerable to committees of the National Council. The Federal Constitution adopted the monarchical dual court system as it distinguishes between civil and criminal law courts, on the one hand, and public law courts on the other. In Austria, three highest Courts exist at a single level: the Constitutional Court (Verfassungs­ gerichtshof), the Administrative Court (Verwaltungsgerichtshof ) and the Supreme Court (Oberster Gerichtshof ). The Constitutional Court and the Administrative Court are defined as the Courts of Public Law (Gerichtshöfe des öffentlichen Rechts). The major task of the Administrative Court is to review the legality of administrative acts. Within the field of asylum law, these powers were transferred to a newly established Asylum Court (Asylgerichtshof) by a constitutional amendment in 2008. The Constitutional Court examines administrative acts for compliance with fundamental rights and reviews the constitutionality of laws and the legality of ordinances. The Constitutional Court’s power to review laws represents a significant limitation to parliamentary authority: although introduced in 1920, this power is still theoretically and politically controversial. The Supreme Court is the highest judicial authority in civil and criminal law cases. Subordinate to the Supreme Court are the Provincial Courts of Appeal (Oberlandesgerichte), the Provincial Courts (Landesgerichte)40 and the District Courts (Bezirksgerichte). These courts form part of the so-called general jurisdiction (ordentliche Gerichtsbarkeit). B.  Written Constitution and Efficient Constitution The system of dividing state powers and attributing them to different constitutionally established institutions, as it is seen in the context of the written constitution, is overlapped by the party system. The efficient constitution of the Second Republic tells the story of initially two par40

 Notably, these Provincial Courts are not state courts but federal courts. Therefore the term ‘provincial’ which clearly dates back to the times of the monarchy may be kept.



The Character of the Austrian Constitution  21

ties that form the focus of two camps and the social partners, who are more or less affiliated with these camps. This affects mainly the position of parliament that, other than the written constitution suggests, is less powerful than the Federal Cabinet. The accession to the European Union has only added to this situation. Although the third camp was strengthened during the 1990s and a Green Party was established during the late 1980s, the two traditional camps still dominate and, consequently, parliamentarianism may still be considered as underdeveloped.41 The following chapters will show how the electoral system, the legal framework for political parties and other parts of the constitution effectively work together to sustain the dominance of the political parties. Due to the fundamentally opposed ideologies of the two camps (which has basically lasted until the present), no compromise could be reached on the moral concepts that might underlie the constitution. Therefore, the text of the Austrian constitution is rather sober compared with other constitutions. In contrast to the US, German, French or Swiss constitution, just to name a few, the Austrian constitution does not include a preamble and therefore no references to ‘the people’, ‘the nation’, a higher authority, any aims or values. In this respect the republican constitution stands in the tradition of the constitutional laws of the monarchy – they were all completely lacking the solemn and elevated language typical of so many other constitutions. They reflect the impression that the ‘constitutional moments’ were forced on the lawmaking authorities from outside rather than people taking their fate into their own hands. As sobriety is a characteristic element of the style of legal texts throughout Austria, this tradition clashed with the style of EU law. Not only the EU treaties, but also regulations and directives sometimes carry excessive preambles. The role these preambles have in interpreting the law was completely alien to the Austrian administration. This initially has created some misunderstandings.42 The Austrian constitution is praised as a particularly ‘legal’ or ‘instrumental’ document. Despite the pride of Austrian lawyers, it therefore has never played a part in emotionally uniting Austrian society. Moreover, it has also become one of the most flexible constitutions of the world. 41

 M Stelzer, ‘Neuere Tendenzen im österreichischen Parlamentarismus: Zur Entwicklung oppositioneller Rechte’ (1997) 9 European Review of Public Law 1079. 42  See, for instance the decision of the Administrative Court, VwSlg 14592 A/ 1997. The decision is discussed in G Loibl and M Stelzer, Nationale Souveränität im Gentechnikrecht (Wien, Bundeskanzleramt, 1997) 62ff.

22  History and Character of the Austrian Constitution

The fact that it takes a two-thirds majority and the denomination of ‘constitutional law’ to create a constitutional provision that does not necessarily have to be incorporated into the core document has paved the way for the enactment of numerous constitutional laws (Bundesverfassungsgesetze, in this case cited without a hyphen) and even constitutional provisions incorporated in simple laws. The decisive reason for that, of course, did not primarily stem from the legal framework but from the domestic political situation already described above. As long as the two major parties, the Social Democratic Party and the People’s Party, enjoyed the joint two-thirds majority in parliament that is required to pass constitutional laws and work together in grand coalition governments (Große Koalition), they more or less amended the constitution at will. According to the widespread formal understanding of the term ‘constitution’, meaning a law that has been passed by parliament in due process, not only rules of substantively ‘constitutional’ character but also provisions relating to any other matter – often covering the single interest of a party – were enacted as constitutional laws. This is the reason why Austrian constitutional law is ‘overloaded’ with provisions that in many other countries would not be considered to be constitutional laws. Therefore, the constitution failed to become an integral part of Austrian society. Not only that, it has hardly promoted common ideas and values. Even constitutional lawyers were unable to overlook all the constitutional laws and provisions that literally went into the hundreds and thousands. The 2008 amendment has brought some relief in rescinding quite a number of these provisions. Nevertheless, Austrians never were nor will be able to have ‘their’ constitution presented in a handy little book. The domestic political situation, as well as the history of the constitution, has also decisively influenced its interpretation. For a long time, scholars adhered strongly to structural theories and argued in a rather formalistic sense without taking into account teleological considerations. Austrian constitutionalists would emphasise that there is a typical Austrian way of reading the constitution that is primarily to be distinguished from the way Germans read their constitution (modus austriacus).43 As Austrian lawyers usually read German legal literature and are influenced by it, there is obviously the need for upholding a specific Austrian 43  E Wiederin, ‘Denken vom Recht her: Über den modus austriacus in der Staatsrechtslehre’ (2007) Die Verwaltung 293.



The Character of the Austrian Constitution  23

tradition. In particular, the writings of Kelsen and Merkl, the protagonists of Pure Law Theory, have become part of a new Austrian patriotism in interpreting and analysing the law. It is nowadays jeopardised by the European influence, both the jurisprudence of the ECtHR and the ECJ. C.  The Hierarchy of Norms The main structural theory that underlies the Austrian constitution is the ‘Lehre (doctrine) vom Stufenbau’. There is probably no proper English word for ‘Stufenbau’, but this term evokes the image of a ziggurat, a terraced step pyramid where every terrace represents the level or the rank on which a norm might sit. Therefore, there are higher and lower ranked norms, thus creating a hierarchy of norms.44 Scholars also speak of superordinate (übergeordnet) and subordinate (untergeordnet) norms. As a consequence, ‘Stufenbau’ might translate as ‘hierarchy’ or ‘step pyramid’. The criterion that is used to assess a higher or lower rank is the simplicity or complexity of the procedure it takes to create and/or amend the norm.45 The more complex or more demanding this procedure is designed to be, the higher is the rank of the norm. The simplicity or complexity of the procedure itself is assessed according to – and only to – the legal prerequisites. As the enactment of a constitutional law would need a two-thirds majority in the National Assembly which is regarded to be a more complex or demanding prerequisite than the need for the simple majority it takes to enact a simple law, constitutional laws hold a higher rank than simple laws. Further, the Austrian constitution provides for a specific procedure if a ‘total revision’ (Gesamtänderung) of the constitution is envisaged. In this case, a referendum is additionally needed. By ways of interpretation, Austrian scholars as well as the 44  The basic ideas that underpin this doctrine were, of course, not genuinely designed by Austrian constitutional scholars. That laws may rank on different levels, which again may be organised in a hierarchy, can at least be traced back to the writings of Thomas Aquinas (c 1225–74) and the idea that constitutional law may be supreme to other laws has already been enshrined in the US Constitution and brought to life by the US Supreme Court. Typical for the Austrian constitutional doctrine is the accuracy with which these ideas are applied and the structural approach they eventually offer. 45  The term ‘norm’ as it is used here is in a theoretical sense. In reality, it could be a law, an ordinance or even an administrative ruling.

24  History and Character of the Austrian Constitution

Constitutional Court believe that the constitution is ‘totally revised’ whenever principles of the constitution, such as the democratic principle, the federal principle or the principle of Rechtsstaat are amended or seriously affected.46 Therefore, it can be said that constitutional principles are superordinated even to constitutional law. These principles sit on the top of the pyramid.47 The pyramid may be extended downwards and comprise ordinances, administrative acts or court rulings and, based on the latter ones, executive acts. Even the law of the states may be included in this pyramid. The question of simplicity or complexity of amending a norm does not necessarily reflect the political reality. A grand coalition government that controls up to 95 per cent of the seats in parliament may find it rather easy to amend the constitution if this amendment meets the political needs of both parties, but may fail to issue an ordinance by the Federal Cabinet, where unanimity is needed, because both parties strongly disagree on the subject. The only threshold even a grand coalition government would not have been able to overcome on its own would have been set up by the principles of the constitution as their amendment needs a referendum. On the result of such a referendum, even a grand coalition government could only have speculated. The complexity of amending a principle of the constitution as set out by the law would therefore have been felt in reality. Apart from the aforementioned criterion, the constitution may sometimes explicitly or implicitly express that a type of norm is subordinated to another one. For example, when Article 18 of Austria’s Federal Constitution states that the entire public administration has to be based on law, consequently, all administrative acts and ordinances are generally subordinated to laws, exceptions may be provided by the constitution. As Article 140 of the Federal Constitution attributes the power to review statutes as to whether they adhere to the Constitution to the Constitutional Court, it implicitly assumes that constitutional laws are superordinated to statutes which in this sense are called ‘simple laws’. The essential impact of the doctrine of the step pyramid is multifold; only a couple of aspects may be discussed here. Every lower ranked norm is supposed to be partly determined by the higher ranked norm 46

 See chapter one IV.   Agents of Pure Law Theory might emphasise that the principles are topped by the ‘Grundnorm’, which is not part of the law but a necessary theoretical prerequisite to comprise the whole system as ‘normative’. 47



The Character of the Austrian Constitution  25

and partly by the free will of the issuing authority. Within this doctrine, it might be said that a simple law enforces the constitution in the same way as an administrative act enforces a statute. Although the leeway in which the administrative authority exercises its free will is generally much smaller than the leeway in which the legislator acts freely, there are no structural differences. On the one hand, this theory emphasises that even administrative acts are not completely determined by law, on the other hand it insists that also laws are not only the product of the free (political) will of the legislator, but determined by the constitution. As it was and still is a widespread belief in Austria that the content of the law can be assessed by ‘legal interpretation’, the concept of the hierarchy of norms became a decisive argument for introducing constitutional review: between every two steps of this pyramid legal arguments play an important part as they determine the margin the lower ranked authority might not exceed.48 If two norms are in conflict with each other, the more highly ranked norm will prevail, mostly because the constitution has established a court that has the power to rescind the lower ranked norm. Lower ranked norms do not have the power to repeal or invalidate higher ranked norms, even if they are issued much later. The reverse, however, may well be the case. The hierarchy of norms was, of course, originally designed on the basis of domestic law. Austrian scholars therefore have puzzled over the question of how international law49 and European law,50 as far as both are directly applicable, could fit in. With regard to international law, Article 9 of the Federal Constitution stipulates that generally recognised rules of international law are regarded as integral parts of federal law. These generally recognised rules include customary international law, and customary international law is thus transformed into federal law. Article 9 of the Federal Constitution is considered to be a ‘permanent transformer’ or receptor. This means that it continuously transforms international law 48  H Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ (Berlin-Leipzig, Walter de Gruyter & Co, 1929) 30. 49  HP Rill, ‘Der Rang der allgemein anerkannten Regeln des Völkerrechts in der österreichischen Rechtsordnung’ (1960) Zeitschrift für Öffentliches Recht 439. 50  G Baumgartner, ‘Der Rang des Gemeinschaftsrechts im Stufenbau der Rechtsordnung’ (2000) Journal für Rechtspolitik 84; S Griller, ‘Der Stufenbau der österreichischen Rechtsordnung nach dem EU-Beitritt’ (2000) Journal für Rechtspolitik 273.

26  History and Character of the Austrian Constitution

into domestic law, thus including it in the Austrian legal system.51 If the legislator attempts to enact a law that conflicts with the generally recognised rules of international law, international rules will almost instantly be transformed again into federal law, thereby repealing the contradicting legal provision. A law that contradicts generally recognised rules of international law can therefore not come into existence. That has provoked the crucial question of which rank those generally recognised rules of international law would have within the hierarchy of norms triggering an extensive debate in Austrian constitutional law theory.52 It has been suggested that their rank should depend on their precise subject matter.53 In other words, an international norm whose subject matter, according to domestic law, requires regulation by means of a simple law, would take the rank of (domestic) simple law. According to this notion, the generally recognised rules of international law may rank at any level in the Austrian hierarchy of norms and may thus even have the same rank of constitutional law. Consequently, not even constitutional law could abrogate those generally recognised rules of international law that had the rank of constitutional law. As some scholars – for different reasons – disliked this idea, they have suggested that the generally recognised rules of international law should be ranked between simple law and constitutional law. In an allusion to the architecture of nineteenth century Viennese apartment houses (in which a floor between the ground floor and the first floor is known as a ‘mezzanine’), this theory has been termed the ‘Mezzanintheorie’.54 Anyhow, the discussion has remained academic so far. When Austria joined the European Union, unsurprisingly, it was a big issue whether European Law could be incorporated into the hierarchy of norms and, again, at what level. According to the European Court of Justice (ECJ), European law has supremacy over national law (European law takes precedence over, but does not invalidate, national law). Most Austrian scholars of constitutional law hold the view that European law 51

 HF Köck, ‘Die Internationalen Beziehungen’ in H Schambeck (ed), Das österreichische Bundes-Verfassungsgesetz und seine Entwicklung (Berlin, Duncker & Humbolt, 1980) 739, 760. 52  See Köck, ‘Die Internationalen Beziehungen’, ibid, 739, 758ff. 53  R Walter, H Mayer and G Kucsko-Stadlmayer, Bundesverfassungsrecht, 10th edn (Wien, Manz, 2007) 113f. 54  See Rill, ‘Der Rang der allgemein anerkannten Regeln des Völkerrechts in der österreichischen Rechtsordnung’, n 49, 439, 450f; R Thienel, Österreichische Staatsbürgerschaft, Vol 2 (Wien, Österreichische Staatsdruckerei, 1990) 45ff.



The Character of the Austrian Constitution  27

should be incorporated into the hierarchy of norms below the level of constitutional principles.55 They justify this view with the argument that Austria’s accession to the European Union was subject to a mandatory referendum, as the accession was seen as a total constitutional revision. The total revision, however, only extended as far as the acquis communitaire at the time of Austria’s accession. As a consequence, each further amendment of European law that could possibly amend the principles of the constitution and, therefore, represent a total revision of the Austrian constitution would require a further referendum. It remains an open question whether the ECJ would concur with this argument in the case of a dispute. It is possible that the ECJ would grant supremacy to European Law over all levels of national law, although the Lisbon Treaty stipulates that the European Union would respect its Member States’ ‘national identities in their fundamental structures, political and constitutional’.56 This provision can be interpreted as a guarantee that Member States might uphold core elements of their constitutions that cannot be overridden by EU Law. In that case, the principles of Austrian constitutional law would form the core element of the constitution. Although the doctrine of the hierarchy of norms may seem to be very formalistic and ‘ivory-towered’, it has a strong political impact: As every state action is primarily thought of as a ‘political’ action, a consequence of the hierarchy of norms is that political activities are subject to judicial review. Questions concerning the ‘correctness’ of state actions must be answered not only politically, but also legally. Not only is it important that a state action is politically useful and desirable – that it complies with the government’s programme or helps the government to win more votes in subsequent elections – it is also required that the action lies within the leeway provided by the norms at the higher level. How wide or narrow the margin created by superordinated norms is depends largely on the interpretation of the relevant provisions.

55

 G Baumgartner, ‘Der Rang des Gemeinschaftsrechts im Stufenbau der Rechtsordnung’ (2000) Journal für Rechtspolitik 84; S Griller, ‘Der Stufenbau der österreichischen Rechtsordnung nach dem EU-Beitritt’ (2000) Journal für Rechtspolitik 273. 56   Art 3a of the Lisbon Treaty.

28  History and Character of the Austrian Constitution

D.  Interpreting the Constitution Traditionally, Austrian constitutional scholars look either for the clarity or unambiguity of the phrasing or favour ‘retrospective’ methods of interpretation that rely on explanatory material provided with draft government bills (Gesetzesmaterialien) or even on the ‘petrification’ of constitutional terms.57 Originally designed to interpret the provisions pertaining to the division of powers between the Federation and the states, the petrification doctrine became a general method of reading the constitution.58 According to this doctrine, a constitutional term must be understood in the light of the simple laws that were in force when the constitutional law including the term in question was enacted. Thus, the meaning of the constitutional term is ‘petrified’. This doctrine works best with certain terms that define the competence of the Federation vis-à-vis the states. Whenever the federal parliament, for instance, wishes to extend the requirement for industrial permission to businesses that have not been regulated under the Industrial Act (Gewerbeordnung), it would only be allowed to do so if the competence for ‘industrial matters’ (Art 10 para 1 no 8 Federal Constitution) would cover this issue. To establish whether this is the case, the competence has to be interpreted in the light of simple laws that were in force on 1 October 1925 (the day when the provisions pertaining to the division of powers between the Federation and the states came into force). On 1 October 1925, the 1859 Industrial Code governed the matters in question. If the interpreter may establish that the specific business was exempted from the 1859 Industrial Code for one reason or the other, the term ‘industrial matters’ did not cover it according to the petrification doctrine. Consequently, the federal parliament would not be allowed to regulate this business under this Industrial Act today.59 Although this doctrine was mellowed by the idea of the so-called ‘intra-systematic development’ (intrasystematische Fortentwicklung) that allowed the legislator to go beyond the borders of the legal setting in 1925 if the regulation planned to be introduced had similar aims or intentions to those pursued by the historic legislator, it triggered quite a 57   cf E Wiederin, ‘Denken vom Recht her: Über den modus austriacus in der Staatsrechtslehre’ (2007) Die Verwaltung 293, 311. 58  H Schäffer, Verfassungsinterpretation in Österreich (Wien, Springer, 1971) 97ff. 59  For further details on the petrifaction doctrine see chapter five.



The Character of the Austrian Constitution  29

lot of constitutional amendments shifting competences from the states to the Federation. In a similar retrospective manner, a doctrine was developed that emphasised the ‘responsive character’ of the constitution (Antwort­ charakter der Verfassung). This doctrine draws on the fact that the constitution adopted various institutions from the monarchy. It suggests a continuity between the monarchy and the republic, accepting the republican constitutional legislator’s full power to regulate differently whenever he wished to do so. The republican constitution therefore ‘responded’ to the given legal system. In cases where the constitution was silent, it was only consequent to assume that it had adopted the traditional legal system.60 Very often, Austrian constitutional scholars have to analyse the legal situation of the monarchy in order to interpret the republican constitution. The reason for these so-called ‘retrospective’ methods of interpreting the constitution are at least twofold. At first glance, they might be seen as a consequence of the historical fact that the Second Republic was built in the spirit of the 1920/1929 Constitution and the 1920 Constitution (in its 1929 version) was re-enacted. It could easily be argued that building the Second Republic in the spirit of the 1920/1929 Constitution meant more than just re-enacting the constitution – it meant also interpreting it in the light of its historical background.61 Looking a little bit deeper, these retrospective methods of interpretation met the interests of the political parties foremost and helped to maintain the idea of the ‘legal’ (and not political) interpretation of the constitution and thus the authority of the Constitutional Court. In a world where two political ‘camps’ fundamentally disagreed on moral concepts the only possibility was to adhere to an interpretation that favoured formal and historical aspects. In particular, the petrification doctrine savours the historic moment of a consensus between these two camps being reached and – at least in theory – demands a new consensus to overcome the status quo. These methods of interpretation therefore enhanced the function of the constitution – to guarantee the need of compromising. 60  For some good examples how this method of reading the constitution works see Thienel, Österreichische Staatsbürgerschaft, Vol 2, n 54. 61  See E Wiederin, ‘Denken vom Recht her: Über den modus austriacus in der Staatsrechtslehre’ (2007) Die Verwaltung 293, 311.

30  History and Character of the Austrian Constitution

On the other hand, these methods ensured that the belief in an autonomous legal doctrine could be upheld. Only such a doctrine could exercise at least some authority within a legal system that lacked an underlying consensus with regard to moral concepts. It therefore seemed important that the Constitutional Court (which was always part of this system, of course), initially adhered to these methods. Further, they are also decisive in upholding the concept of the step pyramid of norms. Only if the interpretation of norms can be exercised by pure ‘legal’ reasoning, can it be argued that the enactment of a norm has a political and a legal basis. Any theory that would argue that interpretation of a norm is based on pre-legal (and in this way also political) assumptions would jeopardise the Austrian constitutional and political system to its very foundations and would be, therefore, emphatically rejected or – more likely – simply ignored. However, with Austria’s increasing integration into Europe, the retrospective way of reading the constitution has been challenged. The accession to the European Convention on Human Rights has already led to a different perception of freedom rights in the same way as the ECtHR has unfolded its jurisprudence case-by-case. As will be shown in detail in chapter seven, the jurisprudence of the ECtHR, as well as the case law of the German Federal Constitutional Court and provisions of the Bonner Basic Law (the German post-war constitution), which were taken into consideration in a comparative view, enhanced earlier approaches of the Constitutional Court leading to an overall assumption of the principle of proportionality exercising a binding effect (also) on the legislator. This principle did, therefore, not only work for the freedom rights enshrined in the ECHR but also for those guaranteed by the domestic 1867 charter of fundamental rights, especially the right to free employment (Erwerbsfreiheit, Art 6 of the General Rights of Nationals). Apart from some hints in the traditional jurisprudence of the Constitutional Court, the full power of the proportionality principle was not felt in Austria until the late 1980s. As applying that principle implies a different theoretical underpinning than the traditional retrospective methods of reading the constitution62 and refers to more substantial, even moral concepts, the Austrian government, as well as the administration, had huge difficulties in 62  See M Stelzer, Das Wesensgehaltsargument und der Grundsatz der Verhältnismäßigkeit (Wien, Springer, 1991).



The Character of the Austrian Constitution  31

understanding the ideas of the Court’s rulings and in reacting accordingly. In some cases, the government failed in its attempt to enact a law or a legal provision that adhered to the constitution in response to a rescission by the Constitutional Court, as this law was scrutinised again by the Court and finally rescinded for the very same reason.63 In other cases, however, constitutional provisions were passed by parliament in order to counter the Court’s case law only to raise questions under the principle of Rechtsstaat. The Court’s methodological turnaround, therefore, did not only challenge the traditional approach of reading the constitution64 but also parts of the political system.65 Although this turnaround was also modelled on the jurisprudence of the German Constitutional Court, as already mentioned, this did not mean that the Austrian Constitutional Court has also adopted all the views and standards of the German Court in applying the proportionality principle. Especially with regard to pre-legal concepts that might influence the balancing of fundamental rights and public interests, it can be observed that the German Court puts more trust into the regulating powers of a free market than the Austrian Court does. The latter, therefore, is much more reluctant to strike down interventions by the State.66 Nevertheless, it might be argued that the Constitutional Court helped to prepare Austria’s legal system for the accession to the European Union as the principle of proportionality was already deeply woven into the fabric of the European law in the 1990s. The accession to the European Union, which was preceded by a referendum in 1994, further jeopardised traditional methods of interpretation, as European law forces scholars to reason teleologically, which means duly considering the aims and purposes behind a disposition when applying it. Apart from that, Austria’s legal system had to be further adopted to the principles of the free market. The Austrian administration is still struggling with all these effects.67 63

 See, eg, VfSlg 10179/1984.  The harshest criticism was probably aired by Heinz Mayer, Das österreichische Bundes-Verfassungsrecht, 3rd edn (Wien, Manz, 2002) V. 65  See chapter seven. 66  See chapter seven. 67  See, for instance, the ruling of the ECJ on the access to Austrian universities (Case C-147/03 Commission of the European Communities v Republic of Austria [2005] ECR I-05969). The problem has not been solved yet. 64

32  History and Character of the Austrian Constitution

IV. Basic Principles of the Constitution

Article 44 paragraph 3 of the Federal Constitution demands a mandatory referendum only in the case of a ‘total revision’ of the Federal Constitution. This article begs the question of what constitutes a total revision. A strictly formal interpretation would be a revision or new enactment of the complete Federal Constitution. Remarkably and contrary to its adherence otherwise to formal reasoning, Austrian constitutional doctrine has never assumed this position. A historical point of view, however, would even have suggested such a position as the Austrian total revision was modelled on the Swiss ‘Totalrevision’. Instead, the term ‘total revision’ always has been interpreted in a more substantive way. From the first textbooks and commentaries on the Austrian constitution the term ‘total revision’ has been connected with Articles 1 and 2 of the Federal Constitution68 and thus with the democratic principle and the federal state principle. After the experiences of WWII, legal scholars pronounced a third principle: the principle of Rechtsstaat. The argument given was the assumption that the Austrian constitutional system was founded on the principle although it was not explicitly mentioned within the constitution because it was already present in the monarchy’s constitution. It was argued that the 1920 Constitution only listed those principles that sharply contrasted with the monarchy’s constitution. In truth, the 1920 Constitution adopted the court system already established during the monarchy. But this system, developed between 1848 and 1876, was based on coincidence rather than systematic considerations, especially in the light of a principle that righteously bears the name of Rechtsstaat. It was never discussed whether the monarchical courts system met the requirements of a Rechtsstaat then or after WWII. Instead of scrutinising the constitutional provisions in the light of such a principle, problems were ignored by assuming that the principle of Rechtsstaat silently underlay the constitution. The consequences can still be seen today in the archaic structure of the review of public law by both the Administrative Court and the Constitutional Court. Nevertheless, these three principles of the constitution have been accepted by the Constitutional Court.69 In addition, Austrian legal the68

 See, eg H Kelsen, G Fröhlich and A Merkl, Die Verfassungsgesetze der Republik Österreich (Wien-Leipzig, Franz Deuticke, 1922) 124. 69  See, eg VfSlg 17340/2004, VfSlg 16241/2001, VfSlg 11669/1988.



Basic Principles of the Constitution  33

ory has postulated a number of further principles after WWII, such as the liberal principle, the separation of powers,70 the separation of state and church71 and many more. The creation of these principles may be better explained from the political and sociological circumstances than from dogmatic considerations. It reflects the post-war grand coalition governments relying on a two-thirds majority (sometimes up to 95 per cent, as already mentioned) of the members of the parliament, thus threatening the function of the constitution as a framework for simple legislation. Whenever it was feared that a law may be deemed unconstitutional, the grand coalition government could propose and pass an amendment to the constitution. Austrian constitutional doctrine therefore responded by creating lots of constitutional principles that, at least on a rhetorical level, attempted to set limits for amending constitutional law. All these principles never became effective. Although the Constitutional Court accepted the democratic principle, the federal state principle and the principle of the Rechtsstaat, the precise meaning of these three principles and their possible effects were still a matter of further debate. The Constitutional Court has thus far had few opportunities to clarify its point of view about the substance of the principles. However, the few decisions it has issued allow at least some further basic considerations. The democratic principle primarily protects certain constitutional institutions and their powers. At the heart of this principle sits the Austrian parliament and its legislative powers. Alterations to the position of the Austrian parliament, especially the National Council, and its legislative powers may be seen as a modification of the democratic principle. Correspondingly, Austria’s accession to the European Union was considered to be a total revision to the constitution, as a large set of legislative powers were transferred from the Austrian parliament to the EU’s political bodies. The position of the Austrian parliament would also be affected by the introduction of a ‘plebiscite’, which would entitle the Austrian people to pass laws without the agreement or against the will of parliament. According to the opinion of many scholars72 (and presumably of the Constitutional Court),73 a plebiscite would severely 70

  Walter et al, Bundesverfassungsrecht, n 53, 88f.   I Gampl, Österreichisches Staatskrichenrecht (Wien, Springer, 1971) 12ff. 72  See, for example, HP Rill, Möglichkeiten und Grenzen des Ausbaus direktdemokratischer Elemente in der österreichischen Bundesverfassung (Wien, Orac, 1987). 73   VfSlg 16241/2001. 71

34  History and Character of the Austrian Constitution

affect the position of the Austrian parliament and its legislative powers and for that reason its introduction would violate the Austrian Federal Constitution. Therefore it could only be introduced by ways of a ‘total revision’. It seems peculiar that the introduction of further direct-democratic elements should violate the democratic principle. But this is only the consequence of the view that the democratic principle protects certain institutions and their powers. Although the term ‘total revision’ was read in a mere substantive way and identified as ‘amending the principles of the constitution’, the principles themselves were assessed in the more formal, traditional manner. With regard to the federal state principle and the principle of Rechtsstaat, the Constitutional Court has adhered to a theory presented by Austrian scholars according to which successive partial amendments could amount to a ‘total revision’. In the view of the Constitutional Court and Austrian constitutional law doctrine, the core element of the federal state principle is the division of powers between the Federation and the states.74 Selective transfers of powers from states to the Federation – as they frequently happened as a consequence of the retrospective interpretation of the Constitutional Court – are rated as partial revisions (Teiländerungen) of the constitution. Only if a large set of powers were to be transferred in a single act, could this reach the level of a total revision. The transfer of powers one by one has been termed a ‘creeping total revision’ (schleichende Gesamtänderung) by Austrian constitutional lawyers.75 As it is almost impossible to determine the point at which the partial revision turns into a total revision, the Court never rescinded a constitutional law for that reason. Similar considerations underlay the Constitutional Court’s interpretation of the principle of Rechtsstaat. According to the reading of the Constitutional Court, a Rechtsstaat must guarantee legal certainty (Rechtssicherheit) and, above all, legal protection (Rechtsschutz), for example by establishing institutions like the Administrative Court and the Constitutional Court for the judicial review of administrative decisions. 74

  VfSlg 11669/1988.  HP Rill, ‘Die österreichische Bundesstaatlichkeit und die Gesamtänder­ ungsschwelle des Art 44 Abs 3 B-VG’ in M Akyürek (ed), Staat und Recht in Europäischer Perspektive (Wien, Manz, 2006) 717; E Wiederin, ‘Gesamtänderung, Totalrevision und Verfassunggebung’ in M Akyürek (ed), Staat und Recht in Europäischer Perspektive (Wien, Manz, 2006) 961. 75



Basic Principles of the Constitution  35

Thus the Constitutional Court has accepted the principle of Rechtsstaat in its formal sense. This can be clearly distinguished from the idea of the rule of law which is a much broader, more dynamic concept.76 From the Constitutional Court’s point of view, the principle of legal protection was endangered when regulations were enacted as constitutional law so that the Constitutional Court subsequently was prevented from assessing whether these laws adhered to the constitution. That happened, as already pointed out, primarily during the 1980s as the legislator responded to court rulings that rescinded provisions disproportionately inhibiting the establishment of private business by creating constitutional provisions. The Constitutional Court noted that such measures could potentially undermine its powers if taken (too) frequently and thus interfere with the principle of Rechtsstaat.77 But, again, it was almost impossible to determine the point at which the measures accumulated to the extent that they infringed the principle of Rechtsstaat. It was ultimately parliament which gave the Constitutional Court grounds for rescinding a constitutional law based on the arguments outlined above. In the field of public procurement law the federal parliament had adopted a constitutional provision that stated that the public procurement laws of the states that were in force on a certain day, should be deemed constitutional. Although parliament only intended to address certain specific constitutional requirements, the Constitutional Court understood the provision as an abrogation of its power to review statutes in the field of state public procurement law. The Constitutional Court declared this to be incompatible with the principle of Rechtsstaat and rescinded the provision,78 noting that a referendum would have been required to introduce it. It is quite obvious that a referendum would never have been held on this kind of constitutional law – not only for financial reasons, but even more importantly for political ones: who would explain to the people why it might be necessary to undermine the principle of Rechtsstaat? By means of this decision the Constitutional Court set an effective limit for amending the constitution. 76  See, for instance Lord Bingham, ‘The Rule of Law’ (2007) Cambridge Law Journal 67ff and P Leyland, The Constitution of the United Kingdom (Oxford-Portland, Oregon, Hart Publishing, 2007) 48ff, for a discussion of Dicey’s concept of the rule of law. 77   VfSlg 11756/1988. 78   VfSlg 16327/2001.

36  History and Character of the Austrian Constitution

Austrian scholars have recently begun to consider whether the basic principles of the constitution may be subject to amendments of any kind simply by holding a referendum.79 The majority of Austrian scholars80 would hold this view and some voices claim that it is a peculiarity of the Austrian democracy that democracy can be abandoned if the legislative procedure laid down in Article 44 paragraph 3 of the Federal Constitution is observed. This clearly reflects the view of the political parties at least between the wars, all of which believed that democracy was only a transitional concept. Nevertheless, this view is not necessarily to be derived from the Austrian constitution. It is crucial to determine which amendments to the legal system may legitimately be based on a constitution. If the aim of a ‘constitution’ is to provide a general framework for a society of free and equal people, regulations that deny these qualities to any human beings cannot be based on a ‘constitution’. Consequently, barbarian acts such as the introduction of slavery, other denials of human dignity or the abandonment of democracy still might occur, but never could be legitimised by a ‘constitution’. To which view the Constitutional Court may adhere is open and hopefully will never have to be decided. The therefore academic discussion may serve as an example that constitutional lawyers in Austria are more and more struggling over the methods of interpreting the constitution. V. Conclusion

Although Austrian politicians emphatically denied that the small republic was the successor to the Austro-Hungarian Monarchy, its constitutional and legal system was built on the heritage of the former empire. This was emphasised by a constitutional doctrine which, especially after WWII, applied retrospective methods in reading the constitution. From the very beginning, the constitutional debate was overshadowed by the deep conflict between dominant political camps, foremost the Conservatives and the Social Democrats, based on fundamentally opposed ideologies. That explains the comparatively ‘legal’ or ‘technical’ 79

 P Oberndorfer, ‘Artikel 1’ in K Korinek and M Holoubek (eds), Österreichisches Bundesverfassungsrecht (Wien-New York, Springer, 2000) 1, 9f; P Pernthaler, Der Verfassungskern (Wien, Manz, 1998). 80  See recently H Mayer, ‘Gibt es ein unabänderliches Verfassungsrecht’ in M Akyürek (ed), Staat und Recht in Europäischer Perspektive (Wien, Manz, 2006) 473.



Further Reading  37

character of the constitution which lacks an underpinning moral concept. While the conflict between these camps led to a civil war in the First Republic, Kelsen’s idea of compromise became the script the Second Republic, at least initially. The process of European integration has continuously jeopardised the monarchical heritage, the dominant role of the political parties and the traditional methods of reading the constitution. Further Reading Jelavich, B, Modern Austria: Empire and Republic, 1815–1986 (Melbourne, Cambridge University Press, 1987). Kann, RA, A History of The Habsburg Empire 1526–1918 (London, University of California Press, 1974). Konrad, H and Wolfgang, M (eds), Das Werden der Ersten Republik . . . der Rest ist Österreich, Vol 1 (Wien, Gerold, 2008). Mason, JW, The Dissolution of the Austro-Hungarian Empire 1867–1918, 2nd edn (London-New York, Longman, 1997). Pelinka, A, Austria: Out of the Shadow of the Past (Oxford, Westview Press, 1998). Reiter, I, Texte zur österreichischen Verfassungsentwicklung 1848–1955 (Wien, WUV, 1997). Richard, KL and Pulzer, P (eds), Austria 1945–1995 (Aldershot, Ashgate Publishing Limited, 1998). Roháˇc, D, ‘Why did the Austrian Empire Collapse? A Public Choice Perspective’ (2008) 2 Constitutional Political Economy 160, 176. Stadler, KR, ‘ The Disintegration of the Austrian Empire’ (1968) 3 Journal of Contemporary History 177, 190. Weinzierl, E et al (eds), Justiz und Zeitgeschichte, Vol 2 (Wien, Jugend und Volk, 1995).

2 Political Parties and Social Partnership

O

Introduction – Development of the Party System – Law on Political Parties – Social Partnership – Conclusion I. Introduction

I

n general, it may be said that political parties are essential in representative democracies as they act as intermediaries between the state and society. Their most important function is focusing and articulating the political views of various groups of people and thus making them heard. In addition, political parties select a large number of officials to carry out public functions. Even though they are private associations, they perform ‘public’ duties that are indispensable for a representative democracy. Traditionally, Austrian political parties were far more than that. Predominantly the conservative People’s Party and the Social Democratic Party formed the centre of political camps that constituted societies within the society which followed different cultural and moral patterns. A characteristic feature of these camps was and, to a certain extent, still is their coverage of almost all aspects of their supporters’ and/or members’ lives. Together with their affiliated associations, they did not only dominate the political sphere, but almost all parts of socialisation such as sports clubs, hiking associations and car driver clubs. Nationalised industry, banks, public social insurance companies and the school system – they all were dominated by the two political parties. The republic was almost shared between those two parties. Party membership paved the way to a better job or an affordable flat or house. Needless to say, all constitutional institutions were penetrated by party members or at least party affiliates. A late former Federal

40  Political Parties and Social Partnership

Chancellor allegedly once remarked that without the party, he and his fellows would be nobodies. Austrian political scientists quite frankly speak of these political parties in terms of ‘feudal lords’.1 Thus, it is impossible to understand Austria’s efficient constitution without a comprehensive knowledge of its party system. In its first part, this chapter examines the emergence of Austria’s party system. It will be emphasised that almost all of the relevant political parties bear a legacy that dates back to the time of the AustroHungarian Monarchy. Further, it will be shown that the political parties, although the framers of the constitution, were not even mentioned by the constitution. Nevertheless, they were and they are the main and most important actors under the efficient constitution. In its second part, the chapter will deal with the 1975 Political Parties Act which regulates the founding of political parties and provides for their public funding. Both issues will be discussed intensively. The last part of this chapter introduces the so-called ‘social partnership’, an Austrian peculiarity which allegedly was responsible for the peaceful development of this country and its prosperity after WWII. Nevertheless, this institution will be critically analysed. II. The Development of the Party System

A.  Political Parties versus Electoral Parties Political parties, although arguably the founders of the First, as well as the Second Republic, were not mentioned in the constitution in 1920, albeit incorporated. Quite obviously, they seemed to be in a quite satisfactory position to act outside (and sometimes also above) the law and to use the institutions of the constitution to exercise their power. The 1929 amendment made references to political parties, but only in a negative way as party officials were banned from the bench of the Constitutional Court. Even the laws providing for the electoral system, albeit based on the principle of proportional representation, did not mention political parties and did not rely on political parties until today. This may be very hard to understand, as political parties are the entities 1

  See A Pelinka, ‘Abstieg des Parteienstaats – Aufstieg des Parlamentarismus’ in A Pelinka and F Plasser (eds), Das österreichische Parteiensystem (Wien-Köln-Graz, Böhlau, 1988) 35, 39.



The Development of the Party System  41

that are represented proportionally. But as the electoral system in force in 1918 dated back to the monarchy, it only provided for so-called electoral parties, which is still the case today. The electoral system of the monarchy was based on the majority principle; hence its territory was divided into many fairly small constituencies. Electoral candidates in these constituencies had to be backed by supporters. The supporters and candidates formed electoral parties – their only aim being victorious in an election. As soon as the election was concluded, the electoral party ceased to exist.2 Even today, it is still the electoral parties and not the political parties that compete at elections, even though in most cases electoral parties are formed by political parties. This legal distinction is not generally apparent to the public as electoral parties usually use the same names as the political parties that back them. B.  The Emergence of the Party System Most of the contemporary political parties bear a legacy that dates back to the nineteenth century, the times of the Austro-Hungarian Monarchy. In fact, the contemporary party system was, with one exception, developed in the late 1800s. As in many other countries, in Austria the emergence of political parties was deeply linked with the development of parliamentarianism and the electoral system. In the 1848 Reichstag, that attempted to draft a constitution, but was dissolved in the same year, a distinction between the political ‘right’ and ‘left’ could be made according to the seating order: the German speaking ‘Liberals’ sat on the left hand side, while the German speaking Conservatives and the Slavic delegates sat on the right hand side.3 This seating order was resumed in 1861, when a new parliament, the Reichsrat, was formed. The German speaking Liberals, who again sat on the left side, pressed for a constitution which they eventually got in 1867. Also called the Constitution Party or the Constitutionalist’s Party, it had to redefine its political aims. It carried on 2  F Koja, ‘Die Rechtsfähigkeit der Wahlparteien un der Politischen Parteien’ (1958) 19 Juristische Blätter 487, 488; M Stelzer, ‘Akzeptanz oder Inkorporation? Zur Einbindung der Politischen Parteien in die österreichische Rechtsordnung’ (2007) Österreichische Juristenzeitung 807, 809. 3  L Höbelt, Kornblume und Kaiseradler. Die deutschfreiheitlichen Parteien Altösterreichs 1882–1918 (Wien-München, Oldenbourg, 1993) 18.

42  Political Parties and Social Partnership

mainly as a representation of the German speaking majority in a multiethnic parliament.4 Thus, liberal and German-national elements are closely linked to each other in Austrian party history. This might be the reason why a party that is largely seen as a right-wing party with a close affinity to German nationalism, may bear the name ‘Freedom Party’ and still may pride itself for its liberal past and its merits in developing parliamentarianism and democracy. The first period of parliamentarianism, lasting roughly until the 1870s saw parties only as loose unions of delegates that formed parliamentarian ‘clubs’.5 They had no thorough political programme and no organisation outside parliament. As long as the members of the Imperial Council were elected by the Diets (Landtage) there was no need for political parties in the modern sense. This all changed with the introduction of direct elections in 1873.6 New parties emerged, forming a party system that survived not only the monarchy but was re-established after WWII and remained stable until the 1980s. Today, in their core elements, the three camps7 are still present: a Christian conservative, a social democratic and (a much smaller) German national. Nevertheless, mass-party movements were not to be observed before the beginning of the twentieth century.8 But then, they were rather overwhelming. The Viennese organisation of the Social Democratic Party could pride itself on being the largest party organisation world-wide in the late 1920s, counting more than 700,000 members (between 35 and 40 per cent of the entire Viennese population).9 i.  The Social Democrats For the social democratic camp it became decisive that it was unified already at a party convention at Hainburg in 1888/89 and re-organised 4   WF Czerny, ‘Parteien und Parlamentsfraktionen’ in Pelinka and Plasser, Das österreichische Parteiensystem, n 1, 588. 5  Czerny, ‘Parteien und Parlamentsfraktionen’, ibid, 588. 6   K Berchtold, ‘Die Politischen Parteien und ihre parlamentarischen Klubs bis 1918’ in H Schambeck (ed), Österreichs Parlamentarismus – Werden und System (Berlin, Duncker & Humblot, 1986) 137, 147; Czerny, n 4, 579, 588. 7  Czerny, ‘Parteien und Parlamentsfraktionen’, n 4, 579, 589. 8  eg W Maderthaner, ‘Das Werden der disziplinierten Massenpartei – Die Entwicklung der Organisationsstruktur der deutschen Sozialdemokratie in Österreich 1889–1913’ (1989) 4 Österreichische Zeitschrift für Politikwissenschaft 347. 9   W Maderthaner, ‘Die Sozialdemokratie’ in E Tálos et al (eds), Handbuch des Politischen Systems Österreichs – Erste Republik 1918–1933 (Wien, Manz, 1995) 177, 181.



The Development of the Party System  43

in 1892.10 The Social Democrats succeeded in avoiding splitting into two parties – a social democratic and a communist party. For that reason communist parties have never played a part in Austrian domestic politics. The communist party that was established after WWII on the initiative of the former Soviet Union merely served as an instrument for the Soviets in controlling or partly influencing Austria’s re-emerging republic. The Communist Party lost all its seats in parliament shortly after the post-war occupation by Allied forces came to an end in 1955. On the other hand, the early unification of the social democratic camp may also explain why traditionally it comprises a left or even Marxist wing that has to be satisfied from time to time. Thus, socialist ideas play a more effective part in Austrian domestic politics. Social Democrats experienced persecution during the monarchy – their effective rise began only with the introduction of the general right to vote (at least for the male part of the population) in 1907.11 Although they probably had the clearest idea of establishing a republic in 1918, they were an opposition party during the First Republic that saw the Christian Socials in coalition government with the German Nationals. The Social Democratic Party was dissolved following the authoritarian revolution in 1933. Because of that and the persecution during the monarchy, they developed a strong distance towards the state and state organs, especially the (ordinary) courts, which were seen to be in the hands of the Conservatives. This ‘state within a state’ feeling may still be observed even nowadays, although the Social Democrats have served in government for most of the time during the Second Republic. It shines through in provisions in their party statute which, for instance, punish every member with the immediate loss of her or his party membership if she or he brings a party-dispute to an ordinary court after an arbitration hearing.12 The right to challenge arbitration rulings on specific grounds is, of course, foreseen by the Austrian Civil Procedure Code and can be estimated as part of the principle of Rechtsstaat. The referred to provision in the party statute expresses a deep distrust of the state and of law courts in particular and shows how historic traumata 10   Maderthaner, ‘Das Werden der disziplinierten Massenpartei’, n 8; Maderthaner, ‘Die Sozialdemokratie’ in Tálos et al, Handbuch des Politischen Systems Österreichs, ibid, 178. 11   Maderthaner, ‘Das Werden der disziplinierten Massenpartei’, n 8, 347. 12   M Stelzer, ‘Innerparteiliche Demokratie’ in M Akyürek et al (eds), Staat und Recht in Europäischer Perspektive (Wien, Manz, 2006) 779, 791.

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are deeply woven into the fabric of the mindsets of Austrian political parties (and probably of its population as a whole). After the war the Social Democratic Party re-emerged but under the new name of the ‘Socialist’ Party of Austria, only to be renamed as ‘Social Democratic’ after the fall of the iron curtain when the term ‘Socialist’ seemed to be outdated. However, no significant amendment of their programme ensued. Until the 1960s the Social Democrats were the so-called ‘junior partner’ in grand coalition governments (meaning they held fewer seats in parliament than the Conservatives), albeit they felt some disadvantages from the electoral system, such as in 1953 and 1959 when they won more votes than the Conservatives but still gained less seats in parliament. This all changed in the 1970s when the Social Democrats took advantage of an amendment of the electoral system and, with the sole exception of the 2002 elections, have always won more votes and seats than any other party. ii.  The Conservatives The Christian Social Party, the centre of the conservative camp, was founded in 1890–91 in Vienna merging several political associations and groups affiliated to Catholicism and the Catholic Church.13 From the beginning, their policy was strongly influenced by the pontifical social encyclical ‘Rerum Novarum’.14 To understand Austrian domestic politics it is important to know that the Conservatives have, thus, never been strong embracers of the idea of a free market society. Merging with the Catholic Conservative Party, the Christian Socials were integrated in the Hapsburg Empire and proved to be one of its strongest pillars.15 Therefore, some Christian Socials had a strong inclination to maintain the monarchy after WWI and/or restore it in the late 1920s. On the basis of this inclination, the Christian Socials developed a new Austrian patriotism and only reluctantly supported the idea of joining Germany. But they were also responsible for establishing a catholic 13

 A Staudinger, WC Müller and B Steininger, ‘Die Christlichsoziale Partei’ in Tálos et al, Handbuch des Politischen Systems Österreichs, n 9, 160. See also KR Luther, ‘Consociationalism, Parties and the Party System’ in KR Luther and WC Müller (eds), Politics in Austria: Still a Case of Consociationalism? (London, Frank Cass Limited, 1992). 14   Staudinger, Müller and Steininger, ‘Die Christlichsoziale Partei’, ibid 160. 15  Ibid.



The Development of the Party System  45

authoritarian government in 1933–34, even if this was (partly) meant as saving Austria from being annexed by Germany. After WWII the Conservatives accepted their responsibility insofar as they renounced their old name ‘Christian Socials’, but adopted the name ‘People’s Party’, although their programme was still based on ChristianCatholic ideas and the Catholic Church and the People’s Party are strong allies on many issues still today. Catholic students and/or academic associations play an important part in the academic world and the entire administration representing the conservative camp. The People’s Party, traditionally strong in the rural parts of Austria, was the ‘senior partner’ in grand coalition governments after WWII until the mid 1960s. From the 1970s onwards its share in general elections became gradually less with the only exception of the 2002 election so far. iii.  The German Nationals The German national camp, the ‘third camp’, is the smallest and its influence (especially after WWII) cannot be compared to that of the Social Democrats and the Conservatives. Nevertheless, it is the oldest camp as its roots date back to liberal parties in favour of the 1867 Constitution. Traditionally, this camp was (and still is) highly affected by fragmentation; the 1860s Liberals were already split into various parliamentary clubs.16 During the First Republic this camp was mainly represented by the Grand German People’s Party (Großdeutsche Volkspartei – GDVP) that initially failed to include those farmers who were attracted by German-national ideas. They formed their own party, the ‘Country Union’ (Landbund).17 The supporters of the German Nationals were probably most likely to sympathise with the German Nazis and for many it might have been fairly easy to join the NSDAP after the German occupation in 1938. Therefore, it was impossible to restore the third camp immediately after the war. Most of its supporters were excluded from the 1945 elections; others were welcomed by the Social Democrats, as well as the People’s Party. (Only a couple of years ago the Social Democrats at least showed some courage and opened the files, especially of the Union of Social Democratic Academics, to prove that after the war they had 16  Berchtold, ‘Die politischen Parteien und ihre parlamentarischen Klubs bis 1918’ in Schambeck, Österreichs Parlamentarismus – Werden und System, n 6, 142. 17  GR Burkert, ‘Der Landbund für Österreich’ in Tálos et al, Handbuch des Politischen Systems Österreichs 207.

46  Political Parties and Social Partnership

accepted membership applications from people who were politically active in Nazi associations during the war).18 The 1949 elections saw the first step to restoring the third camp with the Union of Independents (Verband der Unabhängigen) running for the elections and winning more than 10 per cent of the vote. In 1956, the Freedom Party was founded and it merged with the Union of Independents, thus becoming the sole representatives of the third camp for more than three decades. It gained about 5–8 per cent of the vote in general elections until the mid 1980s and from 1959 to 1986 it was the only party in addition to the Social Democrats and the People’s Party to be represented in the National Council, thus forming the ‘opposition’ to the grand coalition governments. Despite some local success, the role it had in the states and the Federal Council was only marginal. This started to change in the 1970s when the then chairman of the Social Democrats, Bruno Kreisky, brought the Freedom Party and, thus the third camp, back into the game.19 In the aftermath to the 1970 elections in which the Social Democrats gained a relative majority and toppled a conservative government, he assured the support of the Freedom Party to form a minority government. The price he was more than willing to pay was a redrafting of the law on general elections to the National Council. While until then the electoral system favoured larger parties (and especially the People’s Party) as they needed fewer votes for a seat than smaller parties, the system was completely turned around so that smaller parties needed fewer votes to win a seat than larger parties. The new system clearly favoured the Freedom Party mainly over the People’s Party which paid the highest price. It was part of Kreisky’s strategy to strengthen the Freedom Party and in doing so to weaken the People’s Party as in the 1970s they were both considered to appeal to conservative voters. This was all done with the aim of ensuring at least a relative majority for the Social Democrats in the years to come. This strategy worked for about two decades with the Freedom Party even supporting the Social Democrats in a coalition government from 1983 to 1986.20 18

  W Neubauer and P Schwarz, Der Wille zum aufrechten Gang – Offenlegung der Rolle des BSA bei der gesellschaftlichen Reintegration ehemaliger Nationalsozialisten (Wien, Czernin, 2005). 19  cf D Art, The Politics of the Nazi Past in Germany and Austria (New York, Cambridge University Press, 2006) 113, 115. 20   S Puntscher-Riekmann, ‘The Politics of Ausgrenzung, the Nazi-Past and the European Dimension of the New Radical Right in Austria’ in G Bischof, A Pelinka



The Development of the Party System  47

C.  From the 1980s Onwards Political scientists described the Austrian party system as ‘very stable’ until the mid 1980s.21 It consisted of two big parties that shared the political power of the country and a small party that was of no importance or significance until the 1970s. The system was organised along different lines – between labour and property, between pro-cleric and anti-cleric and between centralistic and federal. In this system, drawn by Austrian political scientists, the Social Democrats sided with labour, anti-cleric and centralistic tendencies, the People’s Party with property, clerical and federal tendencies and the third camp traditionally with property, anti-cleric and centralistic tendencies. This all changed in the 1980s – at least on the surface.22 The 1986 elections saw the emergence of a fourth party, the Green Party as well as the beginning of the rise of the Freedom Party under its charismatic leader, the late Jörg Haider. This was, of course, for various reasons. One reason offered by Austrian political science is that the traditional divisions (‘cleavages’) lost their importance and new ones occurred: questions concerning environmental protection, the gender issue, immigration, the accession to the European Union and others.23 Different groups having some experience in organising mass demonstrations in favour of the environment merged to found a Green Party that was successful at general elections for the first time in 1986. It became an inventive opposition party, gaining between their initial 4.8 and 11 per cent of the vote in general elections. Taking into consideration that Austria’s electoral system is based on the principle of proportional representation, the rise of the Freedom Party can only be described as dramatic: with 9.7 per cent in the 1986 election, 16.6 per cent in 1990, 22.5 per cent in 1994, 29.9 per cent in 1999 – in the early years of the twenty-first century Austrian political and F Karlhofer (eds), The Vranitzky Era in Austria, Contemporary Austrian Studies, Vol 7 (New Brunswick, Transaction Publishers, 1999) 78, 85. 21   WC Müller, ‘Austria: Tight Coalitions and Stable Government’ in WC Müller and K Strom (eds), Coalition Governments in Western Europe (New York, Oxford University Press, 2000) 93. 22  MA Sully, ‘Winds of Change in the Austrian Party System’ in Pelinka and Plasser, Das österreichische Parteiensystem, n 1, 739. 23   H Dachs, ‘Grünalternative Parteien’ in H Dachs et al (eds), Politik in Österreich, Das Handbuch (Wien, Manz, 2006) 389.

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scientists observed a fundamental change in the party system: instead of two large parties and two small parties they spoke of three ‘mid-sized’ parties24 as the rise of the Freedom Party was combined with the demise of the People’s Party and, from 1994 onwards, also the Social Democrats. But this clarification only takes into account the percentage of the vote the parties collect at general elections. It has to be stressed that the Freedom Party experienced no significant rise in party members nor did the Green Party attract a lot of people who wanted to join them. While the People’s Party claims to have more than 600,000 members and the Social Democrats nowadays are down to 270,000, the Freedom Party has 50,000 and the Green Party an estimated 4,000.25 The yearly statements of all these parties show that only the Social Democrats and the People’s Party obtain a significant amount of money from membership fees or private donations. The whole party system in its contemporary design is basically publicly financed. It can be shown that the technique chosen to support political parties with taxpayers’ money has had a strong influence on the development of the party system.26 The tradition of fragmentation caught up with the third camp rising: in 1993 five members of parliament broke away to found a new party, the Liberal Forum (Liberales Forum – LIF) that only survived two elections. More seriously, in 2005, under the leadership of Jörg Haider, members of parliament supporting the coalition government with the People’s Party broke away to found the Alliance (for the) Future of Austria (Bündnis Zukunft Österreich – BZÖ) that has survived two elections so far and had become a regional party especially strong in Carinthia. In early 2010 a large group of the Carinthian part of the BZÖ re-established itself as the Carinthian part of the Freedom Party (Die Freiheitlichen in Kärnten – FPK). Internal differences and disputes have proved costly so far: the third camp is split again into two or almost three parties minimising the influence of all of them.

24  See M Gehler, ‘Die zweite Republik – zwischen Konsens und Konflikt. Historischer Überblick (1945–2005)’ in Dachs et al (eds), Politik in Österreich. Das Handbuch, ibid, 47; A Pelinka, ‘Wachsende Autonomie und Differenzierung: Parteien und Fraktionen im Parlamentarischen System Österreichs’ in L Helms (ed), Parteien und Fraktionen. Ein internationaler Vergleich (Opladen, Leske & Budrich, 1999) 219, 222ff. 25   H Sickinger, Politikfinanzierung in Österreich (Wien, Czernin, 2009) 93. 26  Sickinger, Politikfinanzierung in Österreich, ibid, 455ff.



The Law on Political Parties  49

III. The Law on Political Parties

In 1975, political parties were incorporated into the constitution. Typically enough, this was not done by amending the core document, but by enacting the Political Party Act (Parteiengesetz, BGBl 404/1975). Its first article, a constitutional provision, regulates the founding of political parties. All other articles relate to public financing of political parties, which was the reason for this act of legislation. As a result, the act contains only very limited regulations regarding the organisation of political parties. The Political Parties Act thus leaves many questions unanswered. For example, it remains unclear what a political party is by law. Instead of defining political parties, Article 1 paragraph 2 merely states that political parties participate in the policy making process. But according to Austrian law, the right to participate in the policy making process is not solely reserved for political parties. As this is only one of their tasks, political parties obviously have other tasks to perform, on which the law remains silent. Because the term ‘political party’ is not defined by law, it may come as no surprise that there are more than 800 organisations that have registered as ‘political parties’. Of course, the overwhelming majority do not play a part in Austria’s domestic politics. A.  The Founding of Political Parties According to Article 1 of the Political Parties Act, there are no restrictions on the founding of political parties unless a federal constitutional law states otherwise. Hence the founding of political parties is ‘free’. To form a political party it is sufficient to decide on a statute that determines the party’s bodies, who it represents and what rights and obligations its members have. The statute must be published in a periodical and submitted to the Minister of the Interior. Once this happens, the political party acquires its legal status. The Constitutional Court has ruled that the Minister of the Interior does not have the power to prohibit the founding of a political party nor should he or she confirm that a political party has been founded.27 The only legal consequence of an 27

  cf VfSlg 9648/1983.

50  Political Parties and Social Partnership

unsuccessful attempt at founding a party is that the party does not acquire legal identity. This is also the consequence if a constitutional law restricts the formation of the party. The argument the Constitutional Court gives is based on the parliamentary debate that led to the enactment of the Political Party Act. Clearly, the representatives of the political parties wanted as much freedom as possible and no administrative authority or court to decide on the matter. The idea may not totally be rejected that the Social Democrats were especially haunted by their history and the distrust they developed towards state organs, especially the courts. But the outcome of the Constitutional Court’s ruling was completely contrary to the reasoning of the court and to the aims of parliament. Hence, it only ruled that the Minister of Interior did not have the power to prohibit the founding of a party and/or to confirm it. But by insisting that a group that aims to register as a political party without meeting the legal requirement does not acquire legal status, it fell into the hands of all courts and all administrative authorities to – implicitly – decide on this matter once such a group starts to operate in a legal context. Arguably, different courts and different administrative authorities might produce different decisions which would jeopardise the principle of legal certainty and thus the principle of Rechtsstaat. The jurisprudence of the Constitutional Court regarding the founding of political parties has one decisive political consequence – the way the legal system deals with the formation or re-formation of national socialist or fascist organisations. According to a constitutional law, the 1945 National Socialism Reactivation Act (Verbotsgesetz ),28 any kind of national socialist activity is prohibited by law. According to the commonly shared opinion among legal scholars, this constitutional law is the only one that restricts the formation of a political party.29 Federal constitutional law thus prohibits the formation of a party with national socialist aims. If someone in Austria tried to found a party that followed national socialist (or maybe also fascist, the distinction not always being clear) ideas, the attempt would be ‘legally’ unsuccessful. If the resulting ‘party’ nevertheless appears in a legal context, the relevant courts and public authorities must review its statutes and programmes 28

  BGBl 127/1945.  VfSlg 10705/1985; R Walter, H Mayer and G Kucsko-Stadlmayer, Bundesverfassungsrecht, 10th edn (Wien, Manz, 2007) 622; Stelzer, ‘Innerparteiliche Demokratie’ in Akyürek et al, Staat und Recht in Europäischer Perspektive, n 12, 788. 29



The Law on Political Parties  51

and assess whether they are similar enough to those of the NSDAP and its sub-organisations to be called ‘national socialist’. Typical features the courts and administrative authorities might be scrutinising are the use of Nazi terminology, the degradation of parliamentarianism and the call for a strong leader (‘Führer’), the aim to abolish democracy, the glorification of Austria’s 1938 annexation by the German Reich (‘Anschluss’), the attempt to legitimise the crimes committed by the Nazi regime, the denial of the Holocaust as well as strong elements of xenophobia and racism, such as the call for expulsion of all migrant workers.30 If there were enough or striking similarities to be found, the group could never become a party, which means that it could not acquire legal identity. It therefore could not be subject to rights and obligations and could not operate in a legal context. Clearly, this regulation works best in theory. Theoretically, no national socialist party may exist, nor may any party that revives national socialist ideas. Therefore, it might be argued that Austria has got the strictest law on National Socialism: from a legal point of view it is absolutely impossible for such a party to exist. In practise, of course, this is subject to the interpretation of the statutes and programmes that may be viewed differently by different courts and authorities as they may apply varying standards. For instance, some may look to more formal standards, others to more substantial similarities and others may even neglect the problem. The law may have an appeasing effect, but at the end it fails to draw a clear line under Austria’s authoritarian past. Of course, one may always argue that prohibiting parties that follow undemocratic programmes and concepts does not work. Instead of using legal methods, they should be fought on a political battleground. Even if this argument is true in general, there still might be questions asked if a country that experienced (and partly supported) one of the most dreadful regimes in history should have drawn a clearer line between its Nazi past and its democratic future. Article 1 of the Political Parties Act that states that party-pluralism is essential to democracy has provoked the discussion whether there is a need for political parties to be organised democratically, a requirement the Germans have explicitly incorporated in their Political Parties Act.31 Austrian lawyers are split over this issue. The traditional answer would 30

  See VfSlg 11258/1987.   cf Article 21 of the Bonner Basic Law and especially Articles 6 and 9 of the German Law on Political Parties (Parteiengesetz). 31

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be that there was no legal requirement for political parties to be organised democratically. The traditional point of view is still backed by the idea that Austria’s democracy is a status in transition and it may be abolished by a (compulsory) referendum.32 As it may be legally possible to abolish Austria’s democracy – thus runs the argument – it must be allowed to form a political party to that end (which predominantly will be a Marxist or Stalinist party as fascist or even national socialist parties are banned by law). This argument has been challenged by some Austrian scholars,33 but the common view would still be that Austrian parties do not need a democratic organisation. In reality, as political scientists emphasise, the political parties in Austria are organised as oligarchies34 rather than democracies, which does not only follow from their statutes but predominantly from the way these statutes are lived. Political scientists therefore question, for instance, the democratic value of an election of a chairperson when there is only one candidate. It therefore may be said that ‘democracy’ in Austria is restricted to the competition between parties rather than lived within the parties.35 Although parties welcome all members, the main philosophy is that members should pay their fees (and receive a better job or an affordable flat in return) rather than participate in the political process. B.  The Public Funding of Political Parties As mentioned above, the main purpose of the Political Parties Act was to enable public funding of political parties or at least, to give it a legal basis. The legitimate reason for funding political parties out of taxpayers’ money may be seen in the fact that political parties have a decisive 32  P Kostelka, ‘Politische Parteien in der österreichischen Rechtsordnung’ in O Martinek, Arbeitsrecht und Soziale Grundrechte (Wien, Manz, 1983) 37, 49ff; H Schambeck, ‘Politische Parteien und österreichische Staatsrechtsordnung’ in H Mayer (ed), Staatsrecht in Theorie und Praxis – Festschrift Walter (Wien, Manz, 1991) 603, 612. 33  Stelzer, ‘Innerparteiliche Demokratie’ in Akyürek et al, Staat und Recht in Europäischer Perspektive, n 12, 779. 34  W Müller, W Phillip and B Steininger, ‘Wie oligarchisch sind Österreichs Parteien? Eine empirische Analyse, 1945–1992’ (1992) 2 Österreichische Zeitschrift für Politikwissenschaft 117. 35   K von Beyme, Parteien in Westlichen Demokratien, 2nd edn (München-Zürich, Piper, 1984) 432; Sickinger, Politikfinanzierung in Österreich, n 25, 93.



The Law on Political Parties  53

role in a representative democracy and make the system work. In Austria, public funding of political parties is granted not only on the federal level, but also on state and municipal levels (sometimes even without a legal basis). It is extremely generous assessed when compared with the financing of political parties in other OECD countries. A notable characteristic of the Austrian party financing system is that it is basically concentrated on those parties which are represented in parliament.36 On the federal level, a party that is not represented in the National Council may receive money only in the year of a general election and only if it has gained more than one per cent of the votes. Interestingly, this money is paid under the title of supporting ‘public activities’, while money that is made available under the title of supporting the election campaign is only given to parties which have gained seats in parliament.37 Questions on this provision possibly violating the principle of equality have not been raised by the Constitutional Court which has already scrutinised this provision. 38 The severe restriction on parties represented in the National Council in Austria leads to the creation of an exclusive club of political parties which receive abundant public support.39 Consequently, new political parties face severe economic difficulties in gaining access to the political scene. Notably, only the Green Party has managed to come from outside and gain seats in parliament – it was backed by several organisations and movements in the spirit of environmental protection and achieved this at a time when the system of public funding was less generous. The Liberal Forum and the Union (for the) Future of Austria, however, were both breakaway parties formed by members of parliament which guaranteed public money from the first moment of their existence. There are two features of the system of publicly financing political parties that had an influence on the shape of the party system and especially on the development from the 1980s onwards. First, political parties do not receive money entirely according to their strength. Parties which are represented in the National Council with at 36

  See WC Müller, ‘Political Parties’ in V Lauber (ed), Contemporary Austrian Politics (Oxford, Westview Press, 1996) 66, 68. 37   cf Articles 2 and 2a of the (Austrian) Political Parties Act, BGBl 404/1975. 38  VfSlg 14803/1997; see M Stelzer, ‘Parteienfinanzierung und Chancengleichheit’ in P Häberle, M Morlok and V Skouris (eds), Festschrift für Dimitris Th Tsatsos (BadenBaden, Nomos, 2003) 656. 39  Sickinger, Politikfinanzierung in Österreich, n 25, 461ff.

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least five members, who therefore may form a ‘Parliamentary Club’, receive a basic amount out of the total money that is shared between the parties. The rest is divided according to the number of seats a party has gained. This has two effects: for one, the strongest party still gets the largest amount of money. Losing an election may therefore literally prove costly. But the decisive effect for the development of the party system was that smaller parties that are allocated a basic amount still obtain relatively more money than larger parties. This is due to the fact that the basic amount is higher than it would be if it were calculated only on the basis of just five members. One of the main reasons for smaller parties benefitting from the system was to deny them the chance to take this to the courts. According to the jurisprudence of both public law courts, the Administrative Court and the Constitutional Court, someone who only benefits from a system has no standing if she or he raises questions on the legality or constitutionality of the said system. Bearing in mind that the People’s Party and the Social Democrats, both of which have hundreds of thousands of members, need the money predominantly to feed their large bureaucracies, the Freedom Party with its small organisation could use most of the money for public activities and election campaigns. Already in the 1990s, the electorate could have got the impression that in fact there were three parties of almost the same size. Second, other than in Germany the level of public funding is not related to the social role of the relevant party. In one of its decisions regarding the public funding of political parties, the German Federal Constitutional Court has ruled that political parties may receive public funding only to the extent that they are financed privately.40 In Austria, however, small parties – based on their statements of account – are almost exclusively publicly funded. Political scientists in Austria have pointed out correctly that the development of the Austrian political system was and is possible only because of the way in which political parties receive public funding.41 Further, political parties may receive public funding for their academies as long as they are represented in the National Council with at least five members. The formation of a parliamentary club is also decisive for receiving money under the Parliamentary Club Financing 40

  BVerfGE 85, 264 – Parteienfinanzierung II.   Sickinger, n 25, 455ff.

41



The Social Partnership  55

Act (Klubfinanzierungsgesetz, BGBl 1985/156 in the applicable version). In 2010, political parties and parliamentary clubs received a total of €171 million in public funding by the Federation and the states.42 When the Political Party Act was enacted there was a large discussion as to how to deal with private donations. As it was revealed that German industry secretly financed the Nazis in the 1930s, legislating on this subject was a big issue in Germany and German laws are rather strict in demanding disclosure on donators should their donation exceed a certain sum.43 While in Austria the Social Democrats tried to enact similar provisions, the People’s Party emphatically tried to prevent them. The political discussion picks up this topic every now and then and the view the parties take are easy to detect: those which cannot expect any larger donations are strongly in favour of disclosing donators and those which are regularly supported by the wealthier part of the population strongly oppose it. Nevertheless, a typical Austrian compromise was reached: all political parties that receive public funding and are therefore obliged to publish a statement of account every year have to disclose the sum of all those donations that exceed €7,260. Such donations are classified as ‘grand donations’. Each grand donation and the donor have to be specified in an appendix to the yearly statement, which is only revealed to the President of the Public Audit Office who is not allowed to publish it. As the yearly statements of account only comprises the public funding according to the Political Party Act and not also the money political parties receive from the states or municipalities and as only grand donations to the party itself have to be included (and not to sub-divisions or associations affiliated with the party) it is absolutely impossible to assess how much private and public money political parties have at their disposal. IV. The Social Partnership

Austria’s party system is complemented by the renowned system of social partnership. The social ‘partners’ are chambers or associations 42

  Der Standard, 19.01.2010, 8.   cf Article 25 of the German Law on Political Parties; see further M Morlok, ‘Spenden – Rechenschaft – Sanktionen – Aktuelle Rechtsfragen der Parteienfinanz­ ierung’ (2000) Neue Juristische Wochenschrift 761. 43

56  Political Parties and Social Partnership

strongly related to and/or intertwined with the political parties, predominantly the People’s Party and the Social Democrats. A chamber is basically a self-governing or autonomous body, established by law and based on compulsory membership. Its organs are elected by its members. There are a number of chambers representing different professions such as a chamber for pharmacists, one for medical doctors, one for solicitors and barristers. They pursue the professional interests of their members and exercise disciplinary power over them. Politically more interesting are the Federal Chamber of Commerce (Bundeswirtschaftskammer), the Chamber of Labour (Arbeiterkammer) and the Conference of the Presidents of the Chambers of Agriculture (Landwirtschaftskammer) that together with the Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund) form the system of social partnership.44 While the Federal Chambers of Commerce and the Chambers of Agriculture are traditionally dominated by the Conservatives, the Chamber of Labour and the Austrian Trade Union Federation are social democratic strongholds. By law, all employees (civil servants are the exception) are members of the Chamber of Labour and are obliged to pay fees which are deducted from their wages by the employer and transferred to the chamber. Every self-employed person is a member of the (regional) Chamber of Commerce, every farmer a member of the (regional) Chamber of Agriculture. They are all obliged to pay their fees by law. (The aforementioned chambers do not exercise disciplinary powers over their members). The Austrian Trade Union Federation is a private association which means that membership is not compulsory. Nevertheless, in some fields, for instance among railway workers, membership is seen as a moral or social obligation and the Austrian Trade Union Federation is by far Austria’s largest association. The Federal Chamber of Commerce and the Chamber of Labour employ a lot of experts in various fields, so they are seen as the ‘brain trust’ of the People’s Party and the Social Democrats respectively. The main activity of the social partners lies in counselling the parties, the administration and the legislation. For example, the Law on the Regulation of Market Prices (Preisgesetz, BGBl 1992/145 in the applicable version) that allows government to fix prices for consumer goods 44   See also E Tálos, ‘Corporatism – The Austrian Model’ in Lauber, Contemporary Austrian Politics, n 36, 123.



The Social Partnership  57

that are justified from a macro-economic point of view establishes a commission to advise the responsible ministers. In this commission, representatives of the Federal Chamber of Commerce, the Conference of the Presidents of the Chambers of Agriculture and the Chamber of Labour co-operate. But social partners are not restricted to the economic field; they operate practically in all fields of politics. Nevertheless, some fields are more dominated by social partners’ compromises than others depending on how closely they are related to the basic interests of their clientele. Predominantly, they assess every draft bill filed by the Federal Cabinet. In case they agree on a specific version and/or reach a compromise, parliament will hardly change anything. Lawyers who were eager to improve the linguistic quality of the laws found that social partners’ compromises were cast iron also in this respect.45 The main reasons why this system could produce such ‘cast iron’ compromises was that the social partners and the two main political parties were also intertwined on a personal basis. For decades, it was absolutely normal that officials of the Chamber of Labour and leading representatives of the Trade Union Federation sat in parliament on a social democratic ticket while officials of the Chambers of Commerce and the Chamber of Agriculture did the same on a conservative ticket. And they were also part of the Federal Cabinet especially in grand coalition governments. Conventionally, the officials of the Trade Union Federation claimed the Ministry for Social Affairs while officials of the Chamber of Commerce and the Chamber of Agriculture claimed the Ministry of Economy and the Ministry of Agriculture respectively. Interestingly, the law that forbids every minister’s pursuit of any other job during her or his tenure makes one exception: it allows combining the job of a minister with a job in a social partner institution.46 In this way, representatives of the social partners who were at the same time influential members of the Federal Cabinet and/or parliament could guarantee that their compromises were never jeopardised. The social partnership embraced consensus and compromise oriented strategies to solve social conflicts.47 It was the main reason why no 45

  cf F Schönherr, ‘Gedanken zur Gesetzessprache’ in T Öhlinger (ed), Methodik der Gesetzgebung (Wien-New York, Springer, 1982) 190. 46  Art 2 para 4 Incompatibility Act (Unvereinbarkeitsgesetz). 47   See A Pelinka, Austria: Out of the Shadow of the Past (Oxford, Westview Press, 1998) 91.

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serious labour disputes were observed in Austria in the post-war period and it contributed to Austria’s image of an ‘Island of the Blessed’ as it was once called by Pope Paul VI.48 The price it paid, of course, was a lack of transparency as all compromises were reached behind closed doors and all those who were not integrated in this system stayed outside with their needs often disregarded. The system therefore worked best during the times of rapid economic growth when almost everybody could have her or his share and as long as the two main parties represented about 90 per cent of the population.49 With the changes in the party system, the Green Party emerging and the Freedom Party raising its share in general elections, the social partnership lost some of its influence. It was one of the strategies of the Freedom Party under its late chairman Jörg Haider to constantly attack the social partnership, questioning if the compulsory membership to the various chambers was (still) justified. Consequently, during the coalition government formed by the People’s Party and the Freedom Party (2000–06) techniques were implemented to minimise the influence of the social partners, especially those affiliated with the Social Democrats.50 For decades, the social partnership worked completely outside the constitution, apart from the fact that the chambers are mentioned in the provisions that divide legislative power between the Federation and the states. Only a 2008 amendment of the constitution incorporated the social partnership into the constitution, even in its core document. According to that amendment, the republic now appreciates the role of the social partners, respects their autonomy and supports their dialogue by establishing self-governing bodies. As these self-governing bodies are basically all established, the provision might be understood as a constitutional guarantee to leave the system untouched and might therefore serve as a safeguard against ambitions a younger generation might have not to adhere to the same techniques of solving social conflicts that their grandparents have developed.

48

  Arbeiterzeitung 19.11.1971, 16; cf Pelinka, Out of the Shadow of the Past, ibid, 29.   See also P Gerlich‚ ‘A Farewell to Corporatism’ in Luther and Müller (eds), Politics in Austria: Still a Case of Consociationalism? n 13, 132, 146. 50   cf chapter three. 49



Further Reading  59

V. Conclusion

Although the political parties only seem to play a marginal role according to Austria’s constitution, they effectively dominate not only the political system, but also everyday life. The major contemporary political parties emerged from political camps that date back to the nineteenth century: The Social Democratic Party (SPÖ), the People’s Party (ÖVP), a conservative party which emerged from the Christian social camp, the Freedom Party (FPÖ) and the Alliance (for the) Future of Austria (BZÖ), which both are a result of a recent split-up of the successors of the so-called ‘third camp’, the German Nationals. Only the Green Party, which emerged out of environmental movements in the 1980s, has no such history. The formation of a political party is fairly easy and quite unbureaucratic and only restricted by the prohibition of national socialist activity. In theory, no national socialist party may exist in Austria. In reality, of course, it is up to the discretion of courts and authorities to assess whether a party can be called national socialist. The lavish public funding is almost exclusively reserved for parties represented in the National Council. By favouring smaller parties, this system was also responsible for the rise of the Freedom Party. Strongly related to the political parties are the chambers and associations that form the system of social partnership. These social partners play an important part in the law-making proceedings. Notwithstanding the fact that they lost some of their influence during the last few decades, the social partnership was incorporated into the Austrian constitution by a 2008 amendment; this could be seen as an attempt either to close the gap between the written and the efficient constitution or to preserve the current system. Further Reading Bischof, G and Plasser, F (eds), The Changing Austrian Voter (New Brunswick-London, Transaction Publishers, 2008) 12, 53. Bischof, G, Pelinka, A and Karlhofer, F (eds), The Vranitzky Era in Austria, Contemporary Austrian Studies, Vol 7 (New Brunswick, Transaction Publishers, 1999).

60  Political Parties and Social Partnership Cornwall, M (ed), The Last Years of Austria-Hungary (Exeter, University of Exeter Press, 1990). Dachs, H et al (eds), Politik in Österreich. Das Handbuch (Wien, Manz, 2006). Luther, KR and Müller, WC (eds), Politics in Austria: Still a Case of Consociationalism? (London, Frank Cass Limited, 1992). Müller, WC, ‘Austria: Tight Coalitions and Stable Government’ in Müller, WC and Strom, K (eds), Coalition Governments in Western Europe (New York, Oxford University Press, 2000). ——, ‘Political Parties’ in Lauber, V (ed), Contemporary Austrian Politics (Oxford, Westview Press, 1996) 59, 102. Pelinka, A, Austria: Out of the Shadow of the Past (Oxford, Westview Press, 1998). Pelinka, A and Plasser, F (eds), The Austrian Party System (Boulder-San Francisco-London, Westview Press, 1989). Sickinger, H, Politikfinanzierung in Österreich (Wien, Czernin, 2009).

3 The Legislative Branch of the Federal Government

O

Introduction – Institution of the Federal Parliament – Electoral System and the Composition of Parliament – Assembly and Legal Status of the Federal Council – Parliamentary Functions I: Legislation – Parliamentary Functions II: Overseeing the Executive Branch – Conclusion I. Introduction

A

ccording to the concept of the 1920 Constitution, the centre of state authority is taken by the federal parliament which consists of two chambers: the National Council and the Federal Council. The first part of this chapter will provide a brief overview on the position of parliament within the written constitution and the role it has under the efficient constitution. While the National Council is elected by the Austrian people, the members of the Federal Council are delegated by the State Parliaments. The electoral system and the legal status of members of the National Council and the Federal Council will be discussed accordingly. The remaining parts of this chapter will deal with parliament’s responsibilities. One main business is, of course, legislation. It will be demonstrated how the executive branch of government plays a decisive part in law-making proceedings. As the entire public administration has to be based on parliamentary statutes, all laws enacted by parliament must be sufficiently clear and detailed according to the jurisprudence of the Constitutional Court. The effects of this jurisprudence will be thoroughly analysed.

62  Legislative Branch of Federal Government

The other main function of the federal parliament is overseeing the executive branch of (the federal) parliament. The heads of the federal administration, the Federal Ministers, are legally and politically accountable to parliament. It will be argued that, in reality, the system of ministerial responsibility is rather ineffective. The last part of this chapter will deal with the Public Audit Office and the Ombudsman Board. Both support parliament in its task to oversee the executive branch of government.

II. The Institution of the Federal Parliament

According to the original design of the 1920 Constitution, the federal parliament was established as the most powerful institution of the republic thus, finally replacing all the political authority of the monarch. It introduced a parliamentary system as the entire administration (the executive branch of government) had to be based on laws enacted by parliament and the Federal President, as well as the Federal Cabinet were elected by and answerable to parliament. Amendments to the constitution curtailed parliament’s powers. The 1929 amendment already strengthened the position of the Federal President at the expense of parliament, which lost the power to elect the Federal Cabinet and the Federal President. The latter was to be elected by the people and the former to be appointed by the Federal President. More recently, parliament lost considerable legislative competence as a result of Austria’s accession to the European Union. Nevertheless, it might be argued that parliament still seems to be the central political organ of the republic at least according to the text of the constitution. Elements of direct democracy, such as popular petitions (Volksbegehren), referenda (Volksabstim­mung) and consultations of the people (Volksbefragung) merely complement this system. The federal parliament consists of two chambers: the National Council (Nationalrat) and the Federal Council (Bundesrat). The National Council is directly elected by the Austrian people. The members of the Federal Council are elected by the State Parliaments. The two chambers work together on federal legislation and on controlling the Federal Cabinet, which is answerable to both chambers. The National Council and the Federal Council together form the Federal Assembly (Bundes­



The Institution of the Federal Parliament  63

versam­mlung). Apart from its power to declare war on other nations, the responsibilities of the latter relate to the Federal President.1 Under the efficient constitution, though, the federal parliament assumes a less prominent role. Formally, of course, every law has to be passed by parliament. But the decisions on the substance of the law are more often than not taken somewhere else: outside parliament and far off from the official parliamentary procedure. Political scientists describe a ‘world of legislation’2 that, to their profound astonishment, works completely differently to what the constitution might suggest. The main actors in the law-making procedure are the Federal Cabinet, chambers and unions, associations, parties and the ministerial bureaucracy reducing parliament sometimes to the mere role of a ‘state notary’ as it was once called.3 Additionally, in its other function, exercising control over government, parliament did not excel. During the times of grand coalition governments, when the People’s Party and the Social Democrats enjoyed a majority of 90 per cent and more, the ‘opposition’ was barely visible. Neither had it the legal instruments nor the personal and financial capacities to exercise efficient control over the grand coalition government. The constitutionally intended distribution of powers was simply set aside. ‘Control’ in grand coalition governments was exercised by one coalition party over the other. They developed techniques like pairing a conservative Minister with a social democratic State Secretary and vice versa. (A State Secretary is a governmental official, provided for by the constitution, who may be appointed to support and deputise for a Minister. Although listed in Article 19 of the Federal Constitution as a highest authority, she or he is nevertheless bound by directions of the relevant Minister. She or he, therefore, must not be confused with the US Secretary of State who would rather be a Minister of Foreign Affairs under the Austrian system. In fact, the Austrian State Secretary is a sort of junior minister). Further, the Standing Orders of the National Council do not attribute any rights to the opposition as such. They merely speak of ‘minority rights’, which are attributed to groups of representatives, usually 1

  See chapter four.   H Gottweis, Die Welt der Gesetzgebung: Rechtsalltag in Österreich (Wien, Böhlau, 1988). 3  H Neisser, ‘Planung der Gesetzgebung aus der Sicht des Parlaments’ in T Öhlinger (ed), Methodik der Gesetzgebung: Legistische Richtlinien in Theorie und Praxis (Wien-New York, Springer, 1982) 108, 111. 2

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consisting of five members at least. As these rights, one example being the right to interrogation, are not merely opposition rights, members of the governing party may always provide a stage for the Cabinet to shine by simply asking the appropriate questions. Small parties, if they are the only opposition parties, do not have many possibilities to make themselves heard. Even when the Social Democrats (from 1966 to 1970) and the People’s Party (from 1970 to 1986) experienced the role of the opposition party, not much was changed. Although they both agreed that the instruments available to opposition parties were rather poor, they were more interested in upholding the consensual conflict-regulating methods of the social partnership than in antagonistic parliamentary interaction. The role of the opposition was interpreted in a more lively way by the Green Party in the late 1980s, as they were newcomers to parliament and to the political system. Since opposition parties still lacked effective instruments, most action turned out to be cabaret (like wearing funny hats). Whenever opposition parties exploited some of the available instruments (and the Freedom Party growing stronger and stronger had more instruments available) amendments to the Standing Order of the National Council were enacted, depriving the opposition of their instruments or at least limiting their use. When the Green Party, eg, discovered that the Standing Orders of the National Council did not prevent filibustering, one of its members spoke for more than eight hours to delay a parliamentary voting on a statute.4 As a reaction, the coalition government amended the Standing Orders by introducing time limits to prevent any further attempt at filibustering. This was possible for two reasons: first, as it needs a two-thirds majority to amend the Standing Orders, the People’s Party and the Social Democrats could easily pass such amendments at that time. Secondly, the Austrian electorate had never been used to lively parliamentarianism. With the fear that public disputes might lead to situations experienced throughout the First Republic still lingering around, people were happier with what political scientists in Austria called a ‘consensual democracy’.5 Parliament was thus reduced to what was seen as its core function: passing bills. 4

  M Stelzer, ‘Neuere Tendenzen im österreichischen Parlamentarismus: Zur Entwicklung oppositioneller Rechte’ (1997) 9 European Review of Public Law 1079, 1093. 5  R Knoll and A Mayer, Österreichische Konsensdemokratie in Theorie und Praxis (WienGraz, Böhlau, 1976); H Neisser, ‘Konkurrenzdemokratie und Konkordanz­ demokratie’ (2010) 3 Wiener Blätter zur Friedensforschung 1, 4.



The Electoral System and the Composition of Parliament  65

However, the 1920s experience is often cited as one of the main reasons why parliamentarianism did not live up to western standards even after WWII. Its development still may be described as ‘belated and often interrupted’. Although there were some efforts made during the 1990s, it may still be described as ‘underdeveloped’.6 III. The Electoral System and the Composition of Parliament

The way both chambers of parliament are composed has strongly influenced the role it had under the efficient constitution. While the National Council is directly elected by the Austrian people, the Federal Council is elected by the parliaments of the states. However, both electoral systems are strongly influenced by the political parties as it is basically up to them to nominate candidates for both chambers. A.  The Electoral System The 183 seats of the National Council are allocated on the basis of a general election conducted nationwide. Interestingly, the constitution extensively regulates the main features of the electoral system in its Article 26. Elections are based on the principles of proportional representation and the general, equal, direct, secret and personal vote. In addition, Article 8 of the State Treaty of Vienna (1955) and Article 3 of the Protocol No 1 of the European Convention on Human Rights provide for ‘free’ elections. All citizens, men and women, who are at least sixteen years old on the election day are entitled to vote. Citizens who are at least eighteen years old on this day may stand as candidates. In Austria, the general right to vote was introduced in 1907 for the male part of the population and was extended to the female part in 1918. Austria was the first and so far only European Union country to lower the voting age in national elections to sixteen. There are only restrictions on the right to vote for people 6

 A Pelinka, ‘Eine Verwestlichung Österreichs? Zum Wandel des Politischen Systems durch den EU-Beitritt’ (1995) Zeitschrift für Parlamentsfragen (Sonderband) 279.

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imprisoned for certain crimes.7 People who may not be able to exercise their right to vote because of a physical or mental disability may call on assistance in the act of voting. People who are hospitalised on the election day may be visited by so-called ‘flying’ electoral commissions. Only in 2007, a general right to postal voting was introduced.8 This had to be done by amending the constitution as the Constitutional Court had held that any form of postal voting violated the constitution, namely the principles that voting had to be secret and personal.9 The introduction of postal voting still faces fundamental criticism as concerns are expressed that people might be forced into voting by friends and/or family members. Should such fears be justified, only a lack of democratic standards within the Austrian society would be revealed. Although the electoral system of the republic was based on the principle of proportional representation in the 1920 Constitution, some elements of the former majority-system, however, survived. So did the idea that representatives should primarily be elected in constituencies.10 These elements initially favoured the stronger parties, especially the conservatives, over the weaker or smaller parties. Still in the 1950s and 1960s smaller parties needed about three times as many votes to win a seat in parliament as the two major parties. The People’s Party was especially favoured because seats were allocated to constituencies according to the number of inhabitants rather than the number of people who had a right to vote. In constituencies which were inhabited by families with comparatively more children, it needed fewer votes to gain a seat. As these (mostly rural) constituencies were traditional strongholds for the conservatives, they were systematically favoured by the electoral system. This might explain why in 1953, as well as in 1959, the People’s Party gained fewer votes than the Social Democrats, but nevertheless won the majority of the seats in parliament.     7

 Only recently the ECtHR (First Section) found that Austria violated its obligations under Art 3 Protocol No I by denying a prisoner his right to vote (Frodl v Austria (App no 20201/04) ECtHR 8 April 2010). The reasoning of the court suggests that the phrasing of the relating law may be too broad thus allowing disenfranchisement of prisoners in cases that would not stand the proportionality test performed by the court. Although the government seems to be determined to challenge the ruling, amending the law may prove to be inevitable.     8   Bundesverfassungsgesetz, mit dem das Bundes-Verfassungsgesetz geändert wird BGBl I 27/2007.     9   VfSlg 10412/1985. 10  G Strejcek, Das Wahlrecht der Ersten Republik (Wien, Manz, 2009) 17f.



The Electoral System and the Composition of Parliament  67

The 1970 electoral reform, which the Social Democrats promised to the Freedom Party in exchange for their support of the minority government that the Social Democrats had formed, completely altered this system and benefited minor parties. Some figures may illustrate this effect. While the Freedom Party needed more than 40,000 votes to gain a seat in parliament in the 1970 election (compared to the approximate 27,000 votes the Social Democrats and the approximate 26,000 votes the People’s Party needed), they needed only 20,000 votes to win a seat in the 1983 election (compared to the 25,000 votes the Social Democrats and the almost 26,000 votes the People’s Party needed). It took a further electoral reform in 1992 to balance the allocation of seats according to the principle of proportional representation. This was effected by introducing a final distribution procedure at the federal level that, mathematically speaking, re-distributed all 183 seats according to principles developed by the Belgian mathematician and lawyer Victor d’Hondt. Today, a party needs about 25,000 to 26,000 votes to win a seat. These figures are very important for understanding Austrian domestic politics: groups that exceed these numbers are treated with much more care than smaller groups. Measures adverse to a group of people that exceeds this number are probably considered twice before they are implemented. Since the principle of proportional representation was fully implemented in 1992 and almost all majority effects were eradicated, the Social Democrats and the People’s Party were losing their comfortable majority more and more, leaving room for coalitions other than the grand coalition. Hence, in 2000 a coalition government between the People’s Party and the Freedom Party came into being, as the negotiations between the People’s Party and the Social Democrats to form a grand coalition government failed to succeed. In 2006, when the Social Democrats, the Freedom Party and the Green Party (all three opposing the government supported by the People’s Party and the Alliance for the Future of Austria) succeeded in toppling the government, they proved to be unable to form a government. Again, negotiations dragged on and on. They ended with the Social Democrats and the People’s Party, which had actually lost the elections, joining in a grand coalition government. Complicated and long negotiations to form a government are seen in Austria as features of an unstable political system and often referred to as ‘Italian conditions’. Consequently, a debate emerged to introduce the majoritarian principle instead of the principle of proportional

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representation.11 Two systems are in discussion: The Italian system that merely allocates additional seats to the party which has won the relative majority of seats in order to obtain an absolute majority and the Westminster system. At the present moment, any suggestion whether the majority principle will be introduced and/or which of the systems will be chosen is highly premature. The introduction of the Westminster system especially, where candidates literally have to win a seat in a constituency, would fundamentally change the Austrian political landscape. Actually, it is a decisive cornerstone of Austria’s party system and the social partnership that the electorate has only very little influence on the election of the candidates. Generally, voters can only choose which party list to vote for. The voter has only marginal influence on the order of candidates on that list; it is possible to cast a ‘priority vote’ (Vorzugsstimme) for one of the candidates. Candidates who receive a certain number of priority votes are given priority when seats are assigned. Only occasionally does this system show any effect in reality. The composition of the party lists is otherwise a matter for the parties. Some party statutes define the criteria according to which the lists should be composed. These criteria primarily meet the demands of different groups within the parties. The People’s Party, for instance, traditionally has to cope with the demands of the ‘federations’ (Bünde) it consists of and its subdivisions in the states, especially those with strong State Governors.12 The Social Democrats, on the other hand, traditionally have to meet the demands of the Trade Unions. Nevertheless, in recent years both parties tried to introduce more democratic procedures to compose the party list by carrying out so-called ‘pre-elections’ amongst party members. The Green Party, a party that is dedicated to grassroots democracy, has implemented a system of gender equality, according to which female and male candidates strictly alternate on the party list. The chairman of the Freedom Party has the last say on the composition of the party list for general elections. Whatever the procedures were in the past, they assured that it was the party that decided on the list of eligible candidates. In this way, it also 11  K Poier, Demokratie im Umbruch – Perspektiven einer Wahlrechtsreform (Wien, Böhlau, 2009). 12  This is an important aspect of Austrian Federalism, at least according to the efficient constitution.



The Electoral System and the Composition of Parliament  69

could be assured that the organisations that form the social partnership could place candidates in promising positions of the party lists, in that case, of the Social Democrats and the People’s Party. The presence of the social partner candidates in parliament assured for a long time that compromises agreed upon by the social partners were adopted by parliament without further amendments. The fact that it is basically the political party that decides on the composition of the list triggers a strong bond between the party and the elected candidate. Whoever wants to be re-elected has to please the party rather than the electorate. A certain independence from party headquarters may only be experienced with representatives who are backed by strong organisations – like the Trade Unions or the various chambers. Should a different electoral system (like the Westminster system) require that all candidates had to gain personal acceptance in constituencies, they would probably have to be selected by other criteria than representing a social partnership institution or a subdivision of the political party and might be more independent of their party. That would clearly change the current political system and effectively reduce the influence of the political parties. Further it would undermine one of the (legal) pillars of the social partnership. Because it lies in the hands of the political parties to compose the list of candidates it can be guaranteed that the social partners and their interests respectively are represented in parliament. B.  The Legal Status of Members of the National Council Members of the National Council enjoy a number of legal privileges. This status becomes effective when the newly elected National Council meets for the first time and generally ends with the assembly of the subsequently elected National Council, unless the member is re-elected.13 The Constitutional Court may pronounce on the loss of the seat on application by the National Council and only for the reason that the member has been absent from parliamentary sessions during a period of 13   See Arts 55 para 2 and 141 para 1 of the Federal Constitution and Art 2 para 8 of the Federal Law on the Rules of Procedure of the National Council (Geschäftsordnungsgesetz) for other grounds on which the legal status as a member of parliament may be terminated.

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at least 30 days without good reason. Such a decision was taken by the Constitutional Court in 1998 in the case of the delegate Rosenstingl who was held in prison in Brazil on the basis of an international search warrant issued in Austria.14 The Constitutional Court remarkably held that being in prison could have justified the absence from the sessions of the National Council, but as the delegate had refused the return to Austria once this possibility was given, his absence was no longer justified. Some years ago a constitutional amendment introduced a further reason for a National Council member to lose his or her seat, which remains highly controversial. In the parliamentary system, cabinet members normally hold seats in parliament but Article 56 of the Federal Constitution allows them to relinquish their seats temporarily, which has become a standard procedure from the 1970s onwards. If they do so, their seats are taken by subsequent candidates on the respective party lists. If the ministers leave office they have the right to return to their seats, thereby ending the mandates of the National Council members who have held them temporarily. In the Austrian constitutional doctrine, those members who are temporarily assigned to parliament are rated ‘second class members’.15 It might happen that a party is not happy to lose the standin member once the minister is set to return. In this case, it has the option to ‘persuade’ another member to resign instead. But in general, members of the National Council cannot be forced out of their position, as the right to be elected entails the right to remain in parliament.16 In particular, there is no procedure in case a National Council member becomes unpopular in his or her own party, which therefore wants him or her to resign. National Council members are not bound by any mandate in the exercise of their function (Art 56 para 1 of the Federal Constitution). Historically, the idea of a ‘free mandate’ was a reaction to medieval congregations when delegates were at least arguably bound by mandates from the group they represented which enabled them to endlessly delay voting procedures once the course of argument shifted in a direction that was not pre-discussed with the respective group.17 In these cases they 14

  VfSlg 15266/1998.  B Wieser, ‘Artikel 56’ in K Korinek and M Holoubek (eds), Österreichisches Bundesverfassungsrecht (Wien-New York, Springer, 1999) 4. 16   VfSlg 3426/1958, 3560/1959. 17   See for instance UFH Rühl, ‘Das “Freie Mandat”: Elemente einer Interpretations- und Problemgeschichte’ (2000) 39 Der Staat 23. 15



The Electoral System and the Composition of Parliament  71

could always claim that they had to refer back. To ensure a straight forward parliamentary procedure, delegates hereby may not be bound by mandates from the electorate. In theory, the idea of a ‘free mandate’ may also guarantee a free discussion in which it should be possible to convince the opponents in order to define the common wealth or the public good. Both ideas are of no practical relevance nowadays. The electoral system as described above ensures that the relationship between a member of parliament and her or his electorate stays remote in a way that instructions given by a group of voters are unthinkable; nevertheless, the bond between the representative and her or his party will be stronger anyhow. The idea that there might be a free discussion in parliament where opposition members are convincing members of the governing party and vice versa reflects a very idealistic concept of deliberation in parliament and, consequently, is betrayed by reality. The function of the principle laid down in Article 56 paragraph 1 of the Federal Constitution can nowadays be seen in the limiting effect it has on the control a party may exercise over its own delegates18 – especially whether and to what extent National Council members may be forced to vote in a certain way or may be ‘whipped into voting’ by their own party or group. (The term ‘whipped into voting’ draws on procedures used by Westminster Parliament. In Austria, however, there are no whips, as voting in parliament is done by simply rising or not rising from one’s seat. Pressure to vote in the way the party demands is therefore exercised in a different way). In fact, National Council members usually do not vote against the position of their own party. Thus, the outcome of a vote is generally clear from the beginning and genuine discussions during plenary sessions are rare. ‘Parliamentary clubs’ – having discussed a matter internally – and hence the political parties demand all their members to vote in the same way, irrespective of whether the internal discussions had produced consensus. Although a National Council member may be forced to vote against his or her initial view, it might be argued that this was the price for the advantages of being a member of a ‘club’: clubs are teams that can reach their goals only when co-operating. Questions can be raised on how open and ‘democratic’ internal discussions may be. As they are being held behind closed doors, a definitive 18  H Fischer, ‘Das Liberale Forum als parlamentarische Fraktion – eine Rechtliche und Rechtspolitische Betrachtung’ (1993) Journal für Rechtspolitik 3.

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answer is hard to give. Remarkably, a conservative member of parliament only recently described the discussion within the club of the People’s Party during the period of the coalition government with the Freedom Party (at the beginning of the twenty-first century) as receiving directions by the party leaders rather than openly discussing a matter. The general mood he felt was that the representatives were asked to keep their mouths shut and fold their hands in prayer.19 In the 1950s and 1960s parliamentary clubs had adopted rather strict methods to guarantee unanimous voting that in the end were considered as violating the constitution. Their members had to sign undated letters of resignation in advance that could be submitted to the electoral board whenever convenient. Thus, the majority of a group or even only its leaders could decide at any stage on termination of the mandate. This method was considered to be unconstitutional in the light of Article 56 paragraph 1 of the Federal Constitution.20 Nowadays, National Council members can be excluded from a ‘club’ (as well as from their political party), but not forced out of parliament. A member is also free to leave his or her club or party, join another club or party or even form a new club, provided that he or she finds at least another four members to join. As these things happen every now and then it therefore can be said that the principle of the ‘free mandate’ protects the individual member from being totally dependent on the political party that has provided her or him with a ticket. Members of the National Council may never be held to account for votes cast in the exercise of their function. They are also not subject to prosecution or other legal proceedings in respect of anything they say in parliament. Their actions are subject only to disciplinary measures taken by the National Council itself. The obvious sense of this provision is to ensure freedom of speech and an uninhibited debate. Furthermore, members of the National Council are also accorded protection from prosecution, especially from arrest and having their houses searched. These privileges date back to the monarchy and were nourished by the fear of the representatives that the administration could interfere with their deliberations and influence law-making procedures by simply hold19

 This statement was held against the People’s Party in various parliamentary discussions, obviously criticising its attitude. This is documented in the protocols recording parliamentary sessions, see 14. Sitzung des Nationalrates vom 7.März 2007, 23 GP, Stenographisches Protokoll, 175. 20   W Berka, Verfassungsrecht, 3rd edn (Wien, Springer, 2010) 164.



The Electoral System and the Composition of Parliament  73

ing some of them under arrest.21 The privileges still may have some importance, especially for members of the opposition, but have been nonetheless curtailed during the past decades. They now amount to the right of parliament to consent to prosecution or to interfere with it depending on how closely it is related to the members’ function. Publishing the account of proceedings in public sessions of the National Council can never be subject to accountability. Nevertheless, civil law courts have only recently and surprisingly ruled that members of parliament are not free to repeat outside parliament what they had already said during a parliamentary discussion, not even in the form of a mere report. They might still be liable for any offences.22 The function of a National Council member is incompatible with some other public positions, such as a member of the Federal Council or of the European Parliament, the Federal President or a member of the Supreme Court, the Constitutional Court or the Administrative Court. There may also be incompatibility with respect to positions in the private sector. Members of the National Council receive a public monthly salary of €8,160.00 (14 times a year; the figure relates to the latest announcement of the president of the Public Audit Office, May 2008). This sum is the reference unit of the so-called ‘Income Pyramid’ (Einkommenspyramide), which was introduced for public functionaries (‘Öffentliche Funktionäre’, which in this case means: politicians) in the 1990s. The Income Pyramid structures the income that is publicly awarded to the holders of certain public posts (members of the federal or State Government, the Federal President, the Chancellor, the ViceChancellor, members of the Federal Council and others) and is expressed in percentages of the monthly salary of a National Council member.23 The Income Pyramid may be seen as an Austrian peculiarity in many ways. First, as it has got to be a pyramid, it reflects the thinking in hierarchies that is deeply enshrined in Austria’s society. Second, it is neither shaped according to the constitution nor to the estimated workloads or responsibilities. Although according to the constitution parliament is the 21  C Kopetzki, ‘Art 57’ in Korinek and Holoubek (eds), Österreichisches Bundesverfassungsrecht, n 15, 4. 22  OGH 29.3.2000, 6 Ob 79/00m. 23   Bundesverfassungsgesetz über die Begrenzung von Bezügen öffentlicher Funktionäre (BezBegrBVG ) BGBl I 64/1997; Bundesgesetz über die Bezüge und Pensionen der obersten Organe des Bundes und sonstiger Funktionäre (Bezügegesetz) BGBl 273/1972.

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central organ of the republic and somehow superordinated to the executive branch of government, the heads of the administration, the Cabinet Ministers, receive a higher salary and are therefore higher ranked in the pyramid than ordinary members of parliament. This may be justified as it may be argued that cabinet members shift a higher workload and bear more responsibility. However, from this point of view it may be questioned why the Federal Chancellor receives a higher salary than all the other cabinet members, as the constitution does not confer special responsibilities on her or him. The Federal President, who therefore sits on top of the pyramid, receives the largest monthly pay. She or he most certainly does not bear more responsibilities than the members of the Federal Cabinet and has less political power than the Federal Chancellor. In a federal State, it may also be questioned why the two chambers of parliament are not seen as equal, for the members of the Federal Council receive only half of the money members of the National Council get. What the income pyramid therefore represents is – apart from the Federal President who is seen as an ‘elder statesman’ – the hierarchy of the governing party. Interestingly, public functionaries (öffentliche Funktionäre) are very well paid in Austria compared with other European countries. In fact, Austrian National Council members come second in Europe. Only the members of the Italian parliament are better paid.24 Of course, it can hardly be argued that governing Austria is such a tough job that the comparatively high salaries would be justified. One of the main reasons for the sums granted is that political parties would expect and demand holders of public posts to pay what is called ‘party taxes’ (Parteisteuer).25 This means that political parties receive a certain percentage of the income of public functionaries of the republic as a reward that they had put them on their list and supported them to get into these functions. This does not only represent a part of a truly feudal system, but also means that political parties are (also) funded indirectly out of the taxpayers’ money. IV.  Assembly and Legal Status of the Federal Council

The members of the Federal Council (Bundesrat) are elected by the State Parliaments and these elections are based on the principle of pro24

 H Sickinger, Politikfinanzierung in Österreich (Wien, Czernin, 2009) 50.  Sickinger, Politikfinanzierung in Österreich, ibid, 226ff.

25



Assembly and Legal Status of the Federal Council  75

portional representation. The number of members a State Parliament elects depends on the results of the last census and is defined by the Federal President by means of an ordinance. The state with the largest population delegates twelve members, the one with the smallest at least three. At present, Lower Austria delegates twelve members, Vienna and Upper Austria eleven, Styria nine, Tyrol five, Carinthia and Salzburg four and Vorarlberg and Burgenland three members each. The members are elected after every general election of the respective State Parliament. As a result, the Federal Council is never dissolved, but partially renewed. The states succeed one another in alphabetical order (based on the German spelling, of course) in chairing the Federal Council. Members of the Federal Council enjoy a legal status comparable to that of members of the National Council. They are also supposed to exercise their function without being bound by a mandate. Their immunity is governed by the provisions of the State Parliaments. They also draw public salaries, though they receive, as already mentioned, only 50 per cent of the salary of a National Council member. The constitution defines the Federal Council as a second chamber of parliament that is supposed to represent the interest of the states when participating in the legislation and administration of the Federation. According to the jurisprudence of the Constitutional Court, the Federal Council is a core element in Austria’s concept of federalism.26 Nevertheless, the reality is different. The way the members of the Federal Council exercise their functions is in accordance with the ideas, needs and demands of their political parties rather than with the possible interests of the state they represent. Remarkably, members of the Federal Council form parliamentary clubs together with those members of the National Council who belong to the same political party. Hence, the extent to which the Federal Council exercises its powers basically depends on whether the party (or the coalition) that has a majority in the National Council has a majority in the Federal Council or not. The Federal Council, thus, betrays its constitutional mission. Discussions of a possible reform have been going on for a fairly long time.27 The main reason why members of the Federal Council do not primarily pursue 26

  VfSlg 2455/1952.   See, for example H Schäffer, ‘Reformperspektiven für den Bundesrat’ (2007) Journal für Rechtspolitik 11. 27

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the interests of the states they represent is seen in the fact that they do not have to win a general election in their state as they are merely delegated by the State Parliaments. As they do not even have to be members of the State Parliament, political parties can practically choose them at will. It so happened that members of the Federal Council ‘represented’ a state to which they had no personal relation thus only serving the needs of the political party. Suggestions as to possible solutions to this problem are drawn from a comparative study of the German system. In Germany, however, the second chamber, also called the Federal Council (Bundesrat), represents the executive branch of the State Governments. Their heads, the socalled Presiding Ministers or Minister Presidents (Ministerpräsidenten) take a strong interest in their own re-election. Therefore, state interests are frequently given priority over interests of political parties. In Austria it has been suggested that the Federal Council could be transformed into a representation of the executive branch of the State Governments. In fact, the Conference of the State Governors (Landeshauptleutekonferenz), which in Austria works only on an informal basis, traditionally provides a much better forum for expressing the interests and needs of the states. Consequently, it came as no surprise that the states established a new body to represent their interests relating to European integration. Within the framework of the constitutional amendments designed to meet the requirements of Austria’s participation in the legislative procedures of the European Union, they put up an ‘Integration Conference of the States’ (Integrationskonferenz der Länder)28 in which the State Governors and presidents of the State Parliaments co-operate. The Presidency of the Federal Council is entitled merely to participate in its meeting. In fact, the way that the Federal Council presents itself is, in reality, in need of reform – this has been accepted by almost all public law scholars and political parties. But it is still under debate if the composition should be altered, if it should be allocated different powers or if it should be completely abandoned, thus transferring the powers to participate in the federal legislation directly to the states. 29 As any changes will affect the position of the political parties, nothing has ensued from this discussion so far. 28

  cf eg LGBl für Wien 29/1992.   Schäffer, ‘Reformperspektiven für den Bundesrat’, n 27, 11.

29



Parliamentary Functions I: Legislation  77

V.  Parliamentary Functions I: Legislation

According to the constitution, parliament has two main functions. First, it enacts laws. This is seen as parliament’s most important task, as the law is – ideally speaking – the central instrument to govern a democratic society. Second, parliament oversees the executive branch of government. With Austria’s accession to the European Union, the exercise of parliament’s functions had to be partly reshaped and adapted to the demand of Austria’s participation in EU legislation. In reality, it remains true that parliament has to pass every law, otherwise it would not be valid. But this does not mean that parliament necessarily may take a strong influence on its substance. On the contrary, it is primarily the Federal Cabinet in accordance with the political parties, social partners and other institutions that decide on the substance of a law. Parliament may be seen merely as the bottleneck through which laws have to pass.30 Additionally, as it will be shown throughout this chapter, neither parliament’s power to control the administration nor its power to participate in the EU law-making procedures are always exercised very effectively. A.  Legislative Procedures Formally, it takes several stages to pass a law. Only some parts of the procedure have to be carried out by parliament. Other steps may have to be taken by the executive branch of government and the electorate respectively. Initially, there must be a legislative proposal which must be considered and passed by the National Council and subsequently – at least in most cases – by the Federal Council. After a law has been passed by both, the National and Federal Council, it may be subject to a referendum, although this has only been the case twice. Usually, after being passed by the Federal Council, a law is submitted to the Federal President for authentication and is then counter-signed by the Federal Chancellor. Finally, the law must be published: publication is the basic condition for 30  Neisser, ‘Planung der Gesetzgebung aus der Sicht des Parlaments’ in Öhlinger, Methodik der Gesetzgebung: Legistische Richtlinien in Theorie und Praxis, n 3, 108.

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a law’s validity under the principle of Rechtsstaat. Authentication and publication are thus performed by the administration. i.  Legislative Initiative Legislative initiative can stem from several sources. A proposal can be made by the National Council itself or by at least five of its members. The Federal Council, or at least a third of its members, the Federal Cabinet (Regierungsvorlage) and a certain part of the electorate are also entitled to submit proposals. In reality, it is mainly the Federal Cabinet that submits a draft bill. In some legislative sessions almost 90 per cent of the laws enacted by parliament were based on so-called government bills (Regierungsvorlage). This is due to several facts. For once, the skills and information needed for drafting a bill are at the disposal of the Federal Ministers rather than parliament. Parliament, for instance, does not have its own legislative service, so that even in the case of members of the parliament drafting a bill they would rely on the support of civil servants provided by a ministry. The main reason, why the Federal Cabinet decisively influences the law-making process may be found in the sociology of the political parties.31 The leaders of the governing party will take positions in the Federal Cabinet – the chairman of the party will usually become the Federal Chancellor or the Vice Chancellor. Would the members of the National Council (or even the Federal Council) try to vote against the will of the Federal Cabinet that would trigger a party revolt. (In this respect it is worth pointing out that the only recent case of a party leader not playing a part in the Federal Cabinet for diplomatic reasons was that of Jörg Haider in the 2000 government. Only two years later a revolt within Haider’s Freedom Party terminated the coalition government). Government bills, and only government bills, are subject to an assessment procedure, during which a number of institutions may comment on the draft. Every association therefore, aiming to influence legislation in Austria, would try to get on the mailing list. Primary among these institutions are those that form the ‘social partnership’ as described 31

 A Pelinka, ‘Wachsende Autonomie und Differenzierung: Parteien und Fraktionen im Parlamentarischen System Österreichs’ in L Helms (ed), Parteien und Fraktionen – Ein internationaler Vergleich (Opladen, Leske & Budrich, 1999) 219ff.



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above:32 the Austrian Federal Economic Chamber (Österreichische Bundes-Wirtschaftskammer), the Chamber of Agriculture (Landwirts­ chafts­kammer), the Chamber of Labour (Arbeiterkammer) and the Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund). As already explained, their coordinated views and compromises are in general not overruled by parliament. Thus, it might be argued, this assessment procedure is another pillar of the social partnership system as it ensures that the social partners are already integrated in drafting parliamentary statutes. While this assessment procedure gained significant importance for peace and prosperity in the post-war period under successive grand coalition governments, it seemed to delay or jeopardise comprehensive reforms to various fields of legislation in the late 1980s/1990s. Notably, the coalition government formed by the Freedom Party and the People’s Party developed strategies to outmanoeuvre the social partner institutions, predominantly those that sided with the Social Democrats. Arguably, the main reason for this can be seen in the fact that the Freedom Party never was integrated in that system. However, two different strategies were applied. According to one strategy, very short time limits were set for the assessment procedure. This was possible because no legal provision had been setting a time limit. This strategy worked extremely well with rather complex and comprehensive bills as the social partner institutions were given no chance to analyse them properly and file a substantial statement. Alternatively, at least five members of the governing parties had to be persuaded to submit a motion – in such cases no assessment procedure is required.33 These motions were prepared by the administration, as members of the National Council would not have been able to draft them. Legislative proposals from the National Council are otherwise rather rare and usually pertain to particular matters such as the law on the National Council Standing Orders. 32

  cf chapter two.   Apart from the Austrian assessment procedure, which is only required in the case of a government bill, there is a notification procedure, established according to European Law, particularly for norms on technical standards. This means that the Commission has to be informed before a relevant law may be passed. The Austrian implementation of the European directive envisages notification only in the case of government bills. This may fail to meet the requirements of European law, especially in cases described above. 33

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ii.  Popular Initiative Thirty three times in the Second Republic so far,34 the electorate has exercised its right to submit a motion by means of an ‘initiative’ (Art 41 para 2 of the Federal Constitution, further detailed in the Initiative Act).35 For voters to initiate a motion, the support of one per mill of the electorate (currently about 8,000 votes) is required. In a subsequent procedure, voters supporting the legislative proposal have to register. It is truly remarkable that most of the initiatives were launched by opposition parties rather than by other members or groups of the electorate. This was originally facilitated as the initial support of one per mill of the electorate to start a registration procedure could be subsidised by the support of eight members of the National Council or a certain number of members of at least three different State Parliaments.36 Opposition parties have used this instrument instead of submitting a motion to parliament by (five of) its members to gain more publicity and to exercise pressure on the government over the relevant issue. According to the wording of the constitution, the legislative proposal must concern matters that may be settled by federal law. In practice, however, this restriction has been interpreted in a very loose way. Thus, initiatives have not been confined to simple federal law, but have also related to federal constitutional law and even to the strategies Austrian politicians should pursue at the European level.37 From the point of view of the administration, in this case the Federal Minister of the Interior, it seems to be difficult to uphold this legal requirement as any minister who would try to block an initiative on legal grounds would be branded as ‘undemocratic’ by the opposition parties. Every motion signed by at least 100,000 voters or by one sixth of the voters of three separate states must be submitted to the National Council, which has to discuss them, according to its Standing Orders. It does not necessarily mean that the initiative has to become law. Most initiatives of the above mentioned 33 have not lead to the release of 34  http://www.bmi.gv.at/cms/BMI_wahlen/volksbegehren/files/VB_alle_ Ranking.pdf. 35   Volksbegehrengesetz BGBl 344/1973. 36  cf M Stelzer, ‘Direkt-demokratische Elemente in der österreichischen Verfassung: ein rechtsvergleichender Blick’ in M Geis and D Lorenz (eds), StaatKirche-Verwaltung – FS für Hartmut Maurer (München, C.H. Beck, 2001) 1019, 1026. 37   See the initiative against the use of genetically modified crops – cf G Loibl and M Stelzer, Nationale Souveränität im Gentechnikrecht (Wien, Bundeskanzleramt, 1997).



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statutes, not even those that attained a particularly high degree of public support. From a sociological point of view, it can be observed that after initiatives were signed by about a million voters without being transferred into law, subsequent elections have resulted in a change of parliamentary majority and thus in a change of government. Initiatives may therefore act as an indicator of the people’s disagreement with the incumbent government.38 Recent years have seen a political discussion to make initiatives more effective. It has been suggested that if a motion is supported by a certain percentage of the electorate but parliament does not see fit to legislate, a referendum should enable the people to enact a law without parliamentary consent.39 As the Constitutional Court, as well as most constitutional lawyers, considers the introduction of such an instrument to be a total revision of the Federal Constitution,40 such a change would have to be submitted to a referendum. iii.  Deliberation and Voting Any legislative initiative that has been successfully launched, has to be considered by the National Council. There are basically two types of discussion. One is led during plenary meetings when the government is given the chance to substantiate its initiative and the opposition parties will be able to explain their views on it. This discussion is open to the public. Parties will therefore primarily try to address their clientele and the media. These discussions are rather strictly regulated by the National Council’s Standing Orders. In principle, no delegate is allowed to speak for more than 20 minutes. Only in exceptional cases the president of the National Council may suggest an extension. More often, the time is even further restricted as Article 57 of the Standing Orders provides for accordingly. Although officially motivated by the establishment of a more lively and focused discussion, as already mentioned above, the strict 38

  Stelzer, ‘Direkt-demokratische Elemente in der österreichischen Verfassung: ein rechtsvergleichender Blick’ in Geis and Lorenz, Staat-Kirche-Verwaltung – FS für Hartmut Maurer, n 36, 1019, 1027. 39  Bundesregierung, Zukunft im Herzen Europas: Österreich neu regieren (Wien, Bundespressedienst, 2000). 40  VfSlg 16241/2001 cf HP Rill, Möglichkeiten und Grenzen des Ausbaus direktdemokratischer Elemente in der österreichischen Bundesverfassung (Wien, Orac, 1987).

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regulations have at least partly to be seen as a reaction to the almost nine-hour speech of a member of the Green Party in the late 1980s. What might have been an attempt at filibustering led neither to a decisive delay nor the prevention of enactment of a law but gained much attention in the media. As a consequence, opposition parties were deprived of that instrument. In contrast to the plenary sessions of the National Council, consultations in the committees normally take place in camera. The idea of opening all committee meetings to the public has been discussed, but political scientists insist that the purpose of meetings in camera is to enable committees to work effectively without always having to pay attention to how statements might be read by the public and the media.41 Discussions led in committee meetings are said to be more informal and to focus more on substantive matters. Committees often consult members of the civil service and external experts. In practice, it may turn out that draft bills are amended according to these consultations, if these committees do not feel themselves to be bound by a compromise of the social partners or a strong commitment by the government. The legislation procedure in parliament ends with the voting on the bill. The majorities required for the approval of a law differ depending on the rank the law is intended to occupy. To approve ordinary or simple laws, a simple majority of the votes and the presence of only onethird of the members are needed. The approval of constitutional provisions requires a quorum of at least half of the members and a two-thirds majority in favour. There are some special cases for which the constitution requires the same quorum as for constitutional laws, although no constitutional law is involved, for instance in the case of the Standing Orders of the National Council. The Standing Orders provide for rather strict and clear rules on voting procedures. Sometimes it so happens that parliament (the Presidency) does not meet all the requirements. Such a law would be held as unconstitutional and may be subject to a rescission by the Constitutional Court.42 This adds an interesting – substantive – aspect to the otherwise formally constructed step pyramid of the law. As the procedures of voting are laid down in the Standing Orders, they are regulated by a simple 41

 H Sickinger, ‘Die Funktion der Nationalratsausschüsse im Prozess der Bundesgesetzgebung’ (2000) Österreichische Zeitschrift für Politikwissenschaft 157, 170. 42   VfSlg 16151/2001.



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law. Nevertheless, a failure to meet these requirements leads to a possible rescission as the law is held to be not in accordance with the constitution. The Standing Orders of the National Council are therefore seen in some parts as constitutional law in a substantive meaning of the term. iv.  The Role of the Federal Council The decision of the National Council is then passed to the Federal Council, if the latter has the right to veto or must approve the decision. In most cases the Federal Council is entitled to veto. In some cases, however, its approval is required, for example if the draft adopted by the National Council curtails the powers of the states or changes the legal framework of the Federal Council. There are also cases in which the Federal Council has no right to participate in the legislative process: the most important example being the Law on the Federal Budget. If the Federal Council does not have the right to approve but only the right to veto, it may delay the legislative process but cannot prevent the enactment of a law. ‘A reasoned objection’ from the Federal Council has to be raised within eight weeks, but only to the effect that the National Council may vote again on the draft bill. The idea is that the National Council will deal with the Federal Council’s arguments, but it is free to stick with its original opinion. Such a decision (‘Beharrungsbeschluss’) requires the presence of at least half the members of the National Council. It is up to the Federal Council to allow eight weeks to pass without taking any action or to decide positively not to veto a law. In either case, the legislative procedure continues and can only be stopped if the Federal Council is required to approve the law and refuses to do so. In reality, however, contributions of the Federal Council to the legislation of the Federation have been only of marginal importance. During the almost 55 years of the Second Republic a bill passed by the National Council was vetoed about 110 times. In only 12 cases a (slight) amendment of the bill ensued. Whenever the Federal Council was asked to approve a shift in power from the states to the Federation, it concurred.43 The reason why the Federal Council played almost no part in the legislation has already been pointed out above: it failed to become what the 43  The figures are taken from Schäffer, ‘Reformperspektiven für den Bundesrat’, n 27, 11.

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constitution obviously intended it to be – a body in which state interests are represented. Instead, party interests prevailed. Therefore, a veto by the Federal Council can only be expected when the governing parties in the National Council do not command a majority in the Federal Council. Otherwise, a veto would be almost unthinkable. Although officially substantive contributions of the Federal Council were rather rare, it would be impossible to disclose whether there might have been substantive contributions by members of the Federal Council in a more informal way. As the members of the Federal Council are members of the parliamentary clubs of their respective political parties, they participate in club meetings. Basically, it is therefore possible for Federal Council members to influence the discussion in the parliamentary clubs or their arguments to be heard and their suggestions to be met in the drafting or re-drafting of a bill. But as these discussions are held behind closed doors, possible contributions of members of the Federal Council cannot be assessed. Therefore, it comes as no surprise that there is an ongoing debate to reform the institution of the Federal Council with some scholars even demanding its dissolution.44 v. Referenda After the conclusion of proceedings at the Federal Council, it would be at this stage that the law might be subjected to a referendum which would be mandatory if it were to totally revise the constitution (Art 44 para 3 of the Federal Constitution), thus amending the principles of the constitution.45 If the National Council so decides, any other law may be submitted to a referendum.46 In either case, the referendum must formally be ordered by the Federal President.47 In exercising this power, the Federal President may only act on the recommendation of the Federal Cabinet. It is therefore legally impossible that the Federal President may order a referendum because she or he has a good reason to believe that the (constitutional) law in fact amends principles of the constitution and 44   For this debate see Schäffer, ‘Reformperspektiven für den Bundesrat’, n 27, 13 ff. 45   See chapter one. 46   For further details see Articles 43 and 44 of the Federal Constitution. 47  For further details see the Referendum Act (Volksabstimmungsgesetz BGBl 79/1973).



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represents a total revision. Other than the French President, the Austrian Federal President is not free to act on her or his own will. The use of her or his competences almost only on the recommendation of the Federal Cabinet (with some significant exceptions), thus severely curtails the power of the Federal President. This limitation results from the compromises that were made between the political parties in designing this constitutional institution. A totally different but so far only academic question arises whether a Federal President might deny the order of a referendum even if recommended by the Federal Cabinet and on which grounds she or he might be entitled to do so.48 Referenda play a marginal, albeit not uninteresting part in the history of Austrian legislation. Although Austrian scholars have argued numerous times that constitutional provisions had violated constitutional principles and therefore would have required a referendum for the reasons outlined above,49 there was only one situation when the government was willing to accept such arguments and to submit a constitutional law to a referendum: in the case of Austria’s accession to the European Union in 1995 more than 66 per cent of the electorate voted in favour of the accession which subsequently was concluded. The 1970s saw the first and so far only case in which parliament decided to submit a simple law to a referendum which in that case, of course, was not mandatory as no constitutional principles were affected. It did so for a highly strategic reason. When the first nuclear power station (in a village called Zwentendorf) was erected and ready to operate, a large public debate emerged on the safety of nuclear power stations in general and of ‘Zwentendorf ’ in particular. The then government led by Federal Chancellor Kreisky, who was strongly in favour of exploiting nuclear power, drew on the experience of the Swedish government that had lost an election over safety concerns of nuclear power stations. Therefore, he decided to submit this question to a referendum. A law was passed in parliament explicitly providing for the peaceful exploitation of nuclear power.50 Of course, such a law was absolutely superfluous for the power station to start the production of electricity as at that time erecting and operating it was perfectly legal. The law was only passed for the sole 48

 R Thienel, ‘Verfassungsfragen nach Art 49b B-VG – dargestellt am Beispiel der geplanten EU-Volksbefragung’ (2000) Journal für Rechtspolitik 327, 337. 49   See chapter one. 50   See 97. Sitzung des Nationalrates vom 28.Juni 1978, 14 GP, Stenographisches Protokoll.

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purpose of giving the people the chance to cast their votes in a referendum. Although the government and the Federal Chancellor personally strongly supported this law in public, the referendum was lost by a small margin. The nuclear power station never started to operate and quite a lot of money was wasted. Nevertheless, Kreisky’s Social Democrats won the en-suite 1979 elections and gained their best result ever. After the referendum, parliament passed a new law which forbade the ‘peaceful exploitation of nuclear power’ (Atomsperrgesetz , BGBl 1978/676). In 1999 (BGBl 1999/149), this law was transferred into the rank of a constitutional law. Consequently, there are no nuclear power stations in Austria. Moreover, fighting nuclear power stations became a big issue in Austria’s foreign politics. In the case of a mandatory referendum it is quite clear that a constitutional law amending the principles of the constitution cannot be enacted if the referendum is lost. Interestingly, a sometimes emotionally led dispute among constitutional scholars can be observed focusing on the binding effect of a negative non-mandatory (facultative) referendum. Advocates of a more formal interpretation of the constitution argue that the referendum is binding only within one and the same legislative process.51 Thus, a referendum that rejects a law just terminates that process, but has no further effect. Literally, parliament could restart the legislative process the following day and successfully pass the formerly rejected bill without submitting it to a referendum. Whether this would be politically advisable is, of course, a different matter which does not play a part in the formal approach of reading the constitution. Advocates of a more substantive interpretation of the constitution argue that such proceedings would be illegitimate and deceive the will of the people.52 Apart from that, for the purpose of exploring public opinion the constitution has foreseen another direct democratic instrument, the consultation of the people (Volksbefragung). According to Article 49b of the Federal Constitution, the National Council may decide to consult the people on a matter of fundamental and national importance which lies within the power of the federal leg51  R Thienel, ‘Gibt es einen Stufenbau der Bundesgesetze nach ihrer Erzeugungsnorm?’ (1983) Österreichische Juristen Zeitung 481; R Thienel, ‘Die Rechtswirkungen von Volksabstimmungen nach den Art 43 und 44 B-VG’ (1988) Österreichische Juristen Zeitung 673. 52  M Nowak, ‘Rechtswirkungen einer Volksabstimmung: konkretisiert am Beispiel Zwentendorf’ (1980) Österreichische Juristen Zeitung 36.



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islator. The result is not binding on parliament. (To date, no such consultation has been carried out). Anyhow, as there was only one non-mandatory referendum the results of which were duly implemented, the discussion is entirely academic albeit surprisingly emotional. When the procedures in parliament are terminated (and/or in the rare case of a referendum, the electorate has concurred), the bill must be authenticated by the Federal President and published by the Federal Chancellor. Both duties fall in the responsibility of the executive branch of government and will be discussed there. B.  Delegation of Legislative Powers Eventually, parliamentary systems face the question if and to what extent parliament may defer an issue to the administration as neither laws can foresee every single case they may be applied to, nor can they always be as clear and precise as may be desired. Sometimes it might even be necessary for the government to react more quickly to a deplorable state of affairs than to initiate a long lasting law-making procedure in parliament. The faster society moves, the quicker the legal system may be forced to adapt. This basic question was already raised by the Constitutional Court in the 1920s53 and over the decades it has developed a comparatively strict view rescinding various laws that seemed too generous in conferring regulative powers on the executive branch of government. Basically, the reasoning given focuses on Article 18 of the Federal Constitution which provides for the entire public administration to be based on law, or, to put it more precisely on statutes enacted by parliament. This ‘principle of legality’ (Legalitätsprinzip) as it is called in the Austrian constitutional doctrine is a cornerstone of the Austrian democratic system as it subordinates the entire public administration to parliament. Thus it is part of the legal design that establishes a parliamentary system in Austria, though with some exceptions: the constitution entitles the administration in some cases to take direct actions, for example, to release ordinances that are directly based on the constitution (verfassungsunmittelbare Verordnungen). 53   VfSlg 176/1923; the court’s ruling is based on a vote drafted by Kelsen, who was a member of the Constitutional Court in those days.

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The ‘principle of legality’ binds state administration in two senses. First, it establishes the supremacy of law. This means that all administrative acts must comply with the law. Second, it implies that the entire public administration may only take action on the basis of legal authorisation. Without any such authorisation, there is no legal possibility for the administration to act. This is known as the reservation of law (Vorbehalt des Gesetzes). By contrast, the administration of the monarchy was only selectively bound by law. The principle of legitimation by the monarch in the 1867 Constitution empowered the administration to act without specific legal authorisation provided it neither interfered with civil rights nor infringed on existing laws. The administration of the monarchy was thus restricted only by the condition that it had to act within the framework of law. The principle of legality is also seen to be relevant within the context of the principle of Rechtsstaat.54 Binding the administration to law should make administrative actions predictable. Furthermore, it gives citizens the possibility to challenge administrative acts in the Administrative Court if they believe that those acts are unlawful and violate their substantive rights. The principle of legality may only fulfil these two functions if laws do substantively determine administrative actions. A law stating that administration may act as it chooses would formally provide a legal basis for administrative actions and therefore meet the phrasing of the constitution, but would obviously not satisfy the intentions of the principle of legality to bind the administration to the will of parliament and to make administrative actions predictable. Such a provision, deferring all parliamentary powers to the administration ( formalgesetzliche Delegation), would obviously be unconstitutional, at least from a substantive point of view. However, the notion that the law could always clearly and precisely determine each step the administration may take is rather unrealistic and such a determination is not always desirable. The question to what extent a law must substantively determine the exercise of executive power is open and its details have caused much controversy amongst Austrian legal scholars.55 The Constitutional Court has established that legal provisions have to be ‘sufficiently clear and 54

  See already chapter one, section IV.  HP Rill, ‘Art 18 B-VG’ in HP Rill and H Schäffer, Kommentar zum Bundesverfassungsrecht (Wien, Verlag Österreich, 2001) 5ff. 55



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detailed’ (hinreichend bestimmt). There are numerous cases in which the Constitutional Court has established whether particular legal provisions were ‘sufficiently clear and detailed’. In general, it says that they are if the Administrative and the Constitutional Court are able to test administrative actions for compliance with them.56 However, this argument leads to a tautology, as it is only possible to test administrative actions for compliance with a legal provision if the latter is sufficiently clear and detailed. As a result, it is hard to predict how the Constitutional Court will rule on a particular legal provision and there is sometimes the impression that the Constitutional Court applies different standards at different times. Anyhow, it allows constitutional scholars to claim that a law is not ‘sufficiently clear and detailed’ in almost every case and the Constitutional Court to decide on those cases without further reasoning. Neither the Constitutional Court nor Austrian constitutional scholars would go as far as to discuss the core element of this question: the division of powers between the legislative and the executive branch of government. An answer to this question would have to be based on a profound theory of a representative democracy. Such a theory would have political implications and would probably be based on a moral concept. It therefore would not work in a surrounding where the political parties never agreed on a moral concept that underlies the constitution but accept it only as a merely ‘legal’ document. Therefore, it has never even been asked if the 1929 amendment that strengthened the power of the Federal President, providing a direct (democratic) legitimation for the executive branch of government and thus interfering with the original concept of a parliamentary system, had affected the balance of power between the legislative and the executive branch of government. The question whether a law meets the requirement of being ‘sufficiently clear and detailed’ or not is, therefore, answered by the Court on a case-by-case basis. Nevertheless, some common standards may be observed. Very often, the Court has to deal with legal provisions that have been phrased rather vaguely (unbestimmter Gesetzesbegriff ): The meaning of such a provision is always highly debatable and particularly open to different interpretations. Examples may be found in laws regulating the case of certain technologies, which often refer to the ‘state of the art’, and in economic laws referring to ‘economic reasons’ that may entitle the administration 56

  eg VfSlg 11499/1987.

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to take certain actions. Such terms and others like ‘equity’ or ‘professional ethics’ are in particular need of assessment. The Constitutional Court has established that ‘all possible methods’ of interpretation must be applied before assuming that a legal provision is not sufficiently clear and detailed.57 Therefore, legal provisions that are vaguely phrased do not automatically violate the principle of legality as it is laid out in Article 18 of the Federal Constitution. However, if the meaning of a provision remains unclear even after ‘all methods of interpretation’ have been applied, the provision violates the principle of legality because it is not sufficiently clear and detailed. The Constitutional Court has ruled that this is certainly the case if the assessment of a provision demands a certain diligence in archive research58 or a faible for solving puzzles.59 Scholars have emphasised that legal binding is possible to varying degrees depending mainly on the field or the area of administration to be regulated.60 In fields that require particularly flexible administrative reactions (eg economic or technology law) provisions cannot be as detailed as in other fields. Scholars sometimes speak of a ‘differentiated principle of legality’ (differenziertes Legalitätsprinzip). In general, provisions that entitle the administration to intervene with fundamental rights must be binding to a very high degree.61 However, it cannot be observed that the Constitutional Court has systematically ruled that all provisions potentially affecting fundamental rights must fulfill this requirement. Austrian constitutional law scholars have debated whether provisions that bind the administration by setting targets comply with the principle of legality.62 The traditional concept of the law is that law enforcement authorities have to act whenever certain conditions are met. But this concept does not work in all contexts, especially not in relation to planning law. When a road is to be built, its route must be established. In performing this task, the responsible administrative authority is obliged 57

  cf VfSlg 8395/1978 and others.   VfSlg 13740/1994. 59   VfSlg 12420/1990. 60  R Novak, ‘Das differenzierte Legalitätsprinzip in der verfassungsgerichtlichen Rechtsprechung’ in B-C Funk (ed), Staatsrecht und Staatswissenschaften in Zeiten des Wandels (Wien, Springer, 1992) 491; G Winkler, Gesetzgebung und Verwaltung im Wirtschaftsrecht (Wien, Jupiter, 1970) 78. 61   cf VfSlg 10737/1985 and 11455/1987. 62   B Raschauer, ‘Finale Programmierung und Raumordnung’ (1980) Zeitschrift für Verwaltung 93, 94. 58



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by law to ensure that the costs will be as low as possible, the environment will be protected as far as possible, the road will be safe to use and nearby residents will be disturbed as little as possible.63 The administration must aim to satisfy all these requirements, but it is clear that some of these are mutually exclusive. A peculiar feature of this type of legally binding element is that the more parameters there are which might be expected to mean tighter control, the greater is the leeway for the administration because more and more conflicts between different targets will arise. Counter to the notions of some legal scholars, the Constitutional Court has declared laws binding the administration by targets to be compatible with Article 18 of the Federal Constitution.64 Had the Constitutional Court pronounced otherwise, some fields of administration could not have been regulated by laws at all. However, in such cases, the Constitutional Court focused particularly on procedural requirements. In the field of planning law, the administrative authorities have to rely on expert opinions and to submit their draft acts to hearings provided for by law. The results must be taken into consideration in settling conflicts between different targets. The question to which degree of intensity the administration must be bound by law is further complicated by Article 130 paragraph 2 of the Federal Constitution. This provision relates to the judicial review of the administration by the Administrative Court. It states that administrative acts are not illegal if legislation, instead of including a binding rule on an administrative authority’s conduct, leaves the matter to the authority’s discretion, and the authority has made use of this discretion in the spirit of the law. The Federal Constitution thus allows for exceptions from the concept of a strict legal binding. The provision dates back to the times of the monarchy when the judicial review of administrative acts was introduced. The administration of the monarchy was sceptical or indeed hostile to this concept and insisted that there should be limits on the court’s powers and that it should not be allowed to review acts that were based on discretionary decisions. It was transformed into the legal system of the republic without questioning if it really fitted in. Even in the light of these possible exceptions, as a consequence of the way the principle of legality is understood in Austrian constitutional 63

  See, eg Art 4, 7 and 7a of the 1971 Federal Roads Act (Bundesstraßengesetz BGBl 286/1971). 64   VfSlg 8280/1978 and others.

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law theory and in particular by the Constitutional Court, legislation in Austria has to be more substantively binding for administrative actions than might be the case in other countries. This may be illustrated by comparison of road traffic law in Austria and Germany. In Germany, ordinances contain many provisions regulating road traffic whereas in Austria similar provisions are part of the Road Traffic Act, as required by the understanding of the principle of legality. Undoubtedly, the initial purpose of the Constitutional Court’s jurisprudence was to strengthen parliament and parliamentarianism against the administration and the jurisdiction, both already well established under the monarchy. It may be argued that it stood in line with the ideas and the spirit of the constitution even without explicitly saying so. Taking into account that under the efficient constitution the executive branch of government remained the more powerful player also in legislative procedure, it may be questioned if the jurisprudence of the Constitutional Court regarding the delegation of legislative powers misses the point. As has already been assessed in this chapter, the executive branch of government influences the legislative process decisively. Hence, even under the efficient constitution the jurisprudence of the Constitutional Court strengthens democracy as long as there are coalition governments involved. As the law is enforced by a single minister rather than by the Federal Cabinet or a group of ministers, in a coalition government the need to enact a law rather than an ordinance enforces the need to compromise – and this is what the Austrian democracy is basically all about. Nevertheless, there has always been one major exception of the strict reading of the principle of legality: had the law provided for the administration to achieve its ends by means of (private law) contracts, it was not bound by the principle of legality. This view was derived from the fact that the Constitution had established the Federation, the states and even the municipalities as full subjects under private law ignoring any division of powers that would otherwise have curtailed these competencies. Public procurement, public subsidies, the administration of the nationalised industries – all of this could be performed without any legal determination and authorities could invoke the freedom of contract like any other private person although at the expense of the taxpayer. A major academic debate arose in the 1950–60s with public law scholars claiming that the principle of legality should have its full effect also in the field of what was called the ‘private law administration’



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(Privatrechtsverwaltung or Privatwirtschaftsverwaltung).65 But this had no immediate consequences. Obviously, within this field the governing political parties could exercise their power almost at will: Contracts could be handed out to party affiliates or in return for party-membership or party loyalty. Only little by little, parts of the so-called ‘private law administration’ were regulated by law; remedies in the field of public procurement law were only introduced after the accession to the European Union according to the relevant directives. Nationalised industries were subject to an ongoing process of privatisation thus effectively reducing the field of ‘private law administration’ and in turn reducing the large influence of political parties traditionally exercised in this field of administration. C.  Participation in EU Legislation Although the executive branch holds most of the power in the legislative process, according to the efficient constitution a further shift in power was experienced after Austria’s accession to the European Union. It is the Federal Minister who participates in the Council of the European Union which passes the regulations and directives in cooperation with the European Parliament. The power of the Federal Parliament (as well as the state parliaments) has thus been curtailed. To counter the Federal Cabinet’s increase in power, at least to some extent, Articles 23d–23e were incorporated into the Austrian Federal Constitution. These provide for the involvement of the federal parliament (as well as the states) in the European Union’s law-making procedures. The responsible member of the federal government is required to inform the National Council and the Federal Council of all European Union projects and to give them the opportunity to air their opinions. If a directive that would have to be transformed into federal law or a regulation concerning matters that would need settling by federal legislation is to be passed on the European level, any opinion expressed by the National Council is binding. It may be overridden only if there are 65

 W Antoniolli, Allgemeines Verwaltungsrecht (Wien, Manz, 1954) 12; H Klecatsky, ‘Die Köpenickiade der Privatwirschaftsverwaltung’ (1957) Juristische Blätter 333.

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imperative reasons relating to foreign or integrative policy. If the European Union legislation needed to be implemented by a federal constitutional law, a binding opinion of the National Council may only be overridden when the National Council does not object in due course. If the European legislation would need to be implemented by a federal constitutional law that, in accordance with Article 44 paragraph 2 of the Federal Constitution, requires the Federal Council’s agreement, the responsible member would be bound by any opinion expressed by the Federal Council. Again, it may be overridden only if there are imperative reasons relating to foreign or integrative policy. As a recently published survey66 shows, the National Council nowadays hardly uses its power to issue a ‘binding opinion’. This was not the case in 1995, the first year of Austria’s membership of the European Union. In that year, however, the National Council passed no less than sixteen binding opinions. The number decreased to seven in 1996 and four in 1997 respectively. It further decreased in the following years and between 2004 and 2007 this instrument was not used at all. The reasons given are multifold and a bit speculative though they are based on interviews. For one, the first binding opinion already passed by the National Council had an adverse effect. According to the binding opinion expressed by the National Council, a directive on animal transport should force a time limit on animal transports of only six hours. The Austrian Federal Minister of Agriculture had to find out in Brussels that this time limit was unacceptable to other Member States. But as the opinion was binding on him, he was not able to negotiate this time limit (the offer was to force this time limit only on transports within national boundaries). Consequently, he had to vote against the directive thus provoking a result much more unfavourable to the genuine Austrian position.67 As a result of this experience, government parties informally agreed that binding opinions should be phrased more vaguely to give the respective Federal Minister enough room to negotiate. Such opinions 66  J Pollak and P Slominski, ‘Zwischen De- und Reparlamentarisierung: der österreichische Nationalrat und seine Mitwirkungsrechte in EU-Angelegenheiten’ (2009) Österreichische Zeitung für Politikwissenschaft 193, 198. 67   cf S Griller, ‘Zur demokratischen Legitimation der Rechtsetzung in der EU; Stärkung der nationalen Parlamente oder Aufwertung des Europäischen Parlaments?’ (1995) Journal für Rechtspolitik 164, 172.



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typically started off with phrases like: ‘The responsible minister is asked to try to achieve . . .’. It is obvious that such opinions even if they are binding do not impose parliament’s will on the responsible minister as they only express a certain desire and can easily be brushed aside. On the other hand, the administration met the demands of parliament with respect to the obligation to disclose information the constitution provides for. Initially, this obligation was fulfilled by merely passing on EU documents to parliament, the more the better. But without any comments at all, delegates were practically incapable of filtering out the relevant information. This situation slightly improved in 2003, when the Federal Cabinet decided to ask the administration to provide comments to EU documents. Although not all of them seemed to be helpful, the survey nevertheless points out that Austrian members of parliament are well informed nowadays about European projects and about the Austrian position. This gives delegates of the opposition parties at least the possibility to publicly criticise the government’s position. Nevertheless, parliament has more or less given up on actually influencing the EU legislative process. This is especially interesting with regard to the Lisbon Treaty that aims to strengthen the position of national parliaments. The ‘Protocol on the Role of National Parliaments in the European Union’, attached to the Lisbon Treaty, aims to integrate the national parliaments into the EU law-making procedures and to furnish them with the right to invoke the principle of subsidiarity and in this respect also to challenge a legislative act in the ECJ.68 A constitutional amendment to implement corresponding rights of both chambers, the National Council and the Federal Council, has recently been enacted.69 However, it has already been questioned if these new procedures would work in reality70 and the Austrian experience with its parliament not exercising its previous powers71 may cast further doubt on this issue. 68   With regard to the latter cf the ‘Protocol on the Application of the Principles of Subsidiarity and Proportionality’ annexed to the Lisbon Treaty. 69   BGBl I 57/2010. 70  N Barber, ‘Subsidiarity in the Draft Constitution’ (2005) 11 European Public Law 197, 204. 71   See B Blümel and C Neuhold, ‘The Parliament of Austria: A “Normative” Tiger’ in O Tans, C Zoethout and J Peters (eds), National Parliaments and European Democracy (Groningen, Europa Law Publishing, 2007) 143, 160. See also J Pollak and P Slominski, ‘Influencing EU Politics? The Case of the Austrian Parliament’ (2003) 4 JCMS 707–29.

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VI.  Parliamentary Function II: Overseeing the Executive Branch

Chapter E of the Federal Constitution furnishes parliament with the power to ‘participate in the administration of the Federation’ as the constitution roughly puts it. Surprisingly, this chapter contains provisions on the federal budget and on the conclusion of state treaties. Formally, parliament has to pass a law in these cases. There are historical reasons why these powers do not appear within the chapter on federal legislation. The conclusion of state treaties was the prerogative of the monarch and there was no need to incorporate parliament in this procedure until the time of the republic. The Federal Finance Act, often referred to as the federal ‘budget’, was not regarded as a law during the reign of the monarchy because it had no effect on third parties (citizens), but was viewed as an ‘administrative act in the form of a law’ (Verwaltungsakt in Gesetzesform).72 Parliament’s participation in questions of the budget is actually the historical root of parliamentarianism and its introduction was primarily important for controlling the financial means at the monarch’s disposal for the purpose of warfare. It might be argued that dealing with the law on the federal budget and on the conclusion of state treaties within this very chapter again reveals how the republican constitution is based on the monarchial constitution. In both cases, the federal budget and the conclusion of state treaties, the executive branch of government takes a dominant role. In substance, they are therefore dealt with in the following chapter of this book.73 A.  Legal and Political Accountability of the Administration Overseeing the administration or the executive branch of government is the other important function of parliament. It is a vital element of democracy because it imposes a democratic control on the administration. The head of the federal administration, the Federal Cabinet (Bundesregierung), is legally and politically responsible to parliament. 72  P Laband, ‘Das Budgetrecht nach den Bestimmungen der preußischen Verfassungsurkunde unter Berücksichtigung der Verfassung des Norddeutschen Bundes’ (1870) 4 Zeitschrift für Gesetzgebung und Rechtspflege in Preußen 619. 73   See chapter four.



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Legal control implies the right of parliament to sue the Federal Cabinet (or a single minister) at the Constitutional Court for legal contraventions resulting from their official activity. Political control deals with the much broader question on whether the administration of a minister or of the entire Cabinet conforms to moral or ethical standards or political conventions. Cabinet Ministers are responsible not only for their own activities, but also for the complete sector of the executive branch they direct. To meet this responsibility, all ministers may issue directions to influence the enforcement of laws within their sector. As already outlined above, parliament’s contribution to legislation is much smaller in substance than the framers of the Federal Constitution might have envisaged. In fact, the Federal Cabinet and the administration play a decisive part in the legislative process. Controlling the executive branch of government therefore seemed to be an even bigger issue. Unsurprisingly, Austrian political scientists have noted in this respect that parliamentarianism in Austria arrived late if at all.74 As controlling the executive branch of government and, foremost, the Federal Cabinet and/or the Federal Ministers in a parliamentary system is probably the task of every opposition party, it has to be noted that neither the Federal Constitution nor the Standing Orders of the National Council that regulate the exercise of control in detail attribute any right to the opposition or an opposition party as such. Instead, the Standing Orders attribute rights that pertain to the control of the administration to groups of delegates. At a time when some of these rights could only be exercised by a relatively large group – in this case of 20 members – the only opposition party to a government which controlled more than 90 per cent of parliamentary seats, the Freedom Party, was powerless in this respect. From the late 1980s onward, the size of these groups which had to support the exercise of some of these rights was generally reduced to five members, so that every party that was able to establish a parliamentary club had a better chance to act. Some of these rights, however, may be exercised only a certain number of times per year by either one and the same member and/or one and the same club to avoid hampering the legislative machinery. Though parliament has several measures at its disposal to assert the political liability of Cabinet Ministers, the core element is the right to interrogation, which may be exercised in many ways according to the 74

  Pelinka, ‘Eine Verwestlichung Österreichs?’, n 6, 279.

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Standing Orders of the National Council and of the Federal Council. Every member of the National Council or the Federal Council is entitled to address short oral questions during sessions to Cabinet Ministers on any subject pertaining to the enforcement of the law and to demand all relevant information from a Cabinet Minister. More complex questions have to be provided in writing and need the support of five members in total. Cabinet Ministers, in principle, have to answer the questions and can refuse to do so only on the grounds that they are bound by official secrecy or data privacy. The member of parliament requesting information has no right to review the grounds given for refusal but may assess them politically. To assess whether an answer has been satisfactory is no minority right, but has to be done by the majority. The most important function of the right to interrogation is to refer issues to the public. As the right to interrogation is not restricted to members of the opposition, it can also be claimed by members of parliament supporting the government and is quite often used to give Cabinet Ministers a chance to raise their profile. Some rights pertaining to the control of the administration are not even minority rights, but have to be exercised on the grounds of a majority decision – for example, parliament has the right to pass resolutions (Art 52 para 1 of the Federal Constitution). It can thus express its wishes on the exercise of executive power, although its requests are not legally binding. With regard to authorities that are independent in accordance with Article 20 paragraph 2 of the Federal Constitution, the committees of the National Council are entitled to summon their heads and question them on all issues of administrative business. The National Council may also establish committees of inquiry (Art 53 of the Federal Constitution). The Courts and all other authorities are obliged to comply with the request of these committees for evidence. All public departments must produce their files on demand. Although it needs a majority decision in parliament and, therefore, the concurrence of at least one governing party, several committees of inquiry were established in the Second Republic. In the late 1980s two such committees were mildly ‘successful’ in examining the political background of what was otherwise a big crime story. As a result, the social democratic Minister of the Interior (who was also found guilty in court a couple of years later) had to retire. As it was mainly a social-democratic background these committees were to look into, it was the People’s Party that voted with the opposition to establish these committees very much to the upset of the



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Social Democrats. Therefore, the grand coalition government of the following decade abstained from setting up such committees very much to the criticism of the opposition parties. 75 In 2006 and 2008 the Social Democrats voted with the opposition parties to set up committees to look into what they believed were deplorable state of affairs that the coalition government, formed by the (former) Freedom Party and the People’s Party, was responsible for. The establishment of the 2006 committees raised questions as to whether there were constitutional limits on the subjects parliament may look into or whether parliament was free to choose. Further, questions of data privacy were raised as details of a tax file concerning a private company appeared on the website of a member of the Green Party chairing the committee. Partly as a consequence, fiscal authorities submitted their files with large parts blanked out, which led to further disputes between the Federal Ministers involved, who were all representing the People’s Party, and parliament, or in other words, disputes between the People’s Party and almost all other parties. The ongoing arguments over these committees of inquiry were partly responsible for the dissolution of the grand coalition government in 2008. In the following elections, the Social Democrats and the People’s Party lost their two-thirds majority. As the opposition parties were now needed to pass an amendment to the constitution, they saw a chance that their long-time request to make it a minority right to establish a committee of inquiry could be fulfilled. Already in 1997, opposition parties gained much attention from the media when they demanded the power to set up such committees as a reaction to having their motions to establish several committees of inquiry on different issues constantly turned down by the government. To underline their request they collectively walked out of a plenary session and stayed away for a couple of days.76 The 2008 coalition government promised the reform of the law on committees of inquiry and especially to allow minority parties to establish them. To do so would mean meeting the requirements of the efficient constitution. A law that provides for a majority decision to set up a committee of inquiry reflects an antagonism between a presidential (exmonarchial) government and parliament. Such an antagonism might 75

  Stelzer, ‘Neuere Tendenzen im österreichischen Parlamentarismus’, n 4, 1101.   Stelzer, ’Neuere Tendenzen im österreichischen Parlamentarismus’, n 4, 1101.

76

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have been envisaged by the 1929 amendment of the constitution. The efficient constitution, however, follows the model of a parliamentary system where the antagonism lies between government and opposition. In any event, nothing substantial has ensued from this promise so far, with debates still under way. The most effective instrument of control at the disposal of parliament would be a vote of no confidence (Art 74 of the Federal Constitution). Should a vote of no confidence be passed, the respective member(s) of the Cabinet or even the entire Cabinet would be removed from office. The Federal President is thus obliged to dismiss the minister or even the entire Cabinet. A vote of no confidence must be supported by the majority of the members of the National Council (the Federal Council therefore cannot pass a vote of no confidence). It would be undesirable for a vote of no confidence to be passed by a minority (the opposition) as this would jeopardise the democratic system. In practice, votes of no confidence are normally proposed by the opposition and rejected by the government majority. However, this does not mean that this right is ineffective, it merely plays no part in the struggle between government and opposition. Instead, its function lies in securing parliament’s political and legal influence on the formation of the Federal Cabinet which is appointed by the Federal President. It is therefore particularly important in balancing the powers between the National Council and the Federal President. This brief summary of the measures of control at parliament’s disposal makes it clear that the opposition in Austria is not very powerful compared with other countries. This has a largely historical reason: during the time of the grand coalition governments that were sometimes supported by up to 95 per cent of the members of the National Council, effective opposition came from groups within the traditionally large parties rather than from the smallest party in parliament. This type of opposition naturally did not request parliamentary measures, but operated behind closed doors. The attitudes towards the rights of the opposition and minorities changed only (mildly) when the traditionally large parties experienced life in opposition. Even so, opposition rights have never enjoyed much prominence in Austria’s parliamentary and constitutional law. It is therefore still true that parliamentarianism in Austria is weak and – in sharp contrast to the ideas of the constitution – in reality, parliament is not the most powerful institution of the republic.



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B.  The Public Audit Office and the Ombudsman Board There are two bodies attached to the National Council designed to support it in overseeing the administration. Both bodies remarkably gained a large reputation in public, where they are hardly perceived as supporting parliament but as authorities in their own right. Those two are the Public Audit Office (Rechnungshof) and the Ombudsman Board (Volksanwaltschaft). The task of the Public Audit Office basically is to examine the administration of public funds; the Ombudsman Board has to investigate into all forms of possible maladministration. The National Council has a decisive influence on the organisation of both institutions, although they do not exclusively act as agents for the National Council. In examining the management of public funds in states and municipalities, the Public Audit Office acts as an agent for the respective State Parliament. Although these competences cannot be abrogated by the states, states are free to establish their own audit units. States are also free to either make submissions to the Federal Ombudsman Board or to establish their own boards. Vorarlberg and Tyrol have established their own Ombudsman Boards; all other states have chosen to submit to the Federal Ombudsman Board so far. i.  The Public Audit Office The Public Audit Office is directed by a president, who is elected by the National Council for a 12-year period; only one term may be served. The president may be relieved from office by a vote of the National Council. Staff members of the Public Audit Office are appointed by the Federal President following proposal and counter-signature from the president of the Public Audit Office. The Office’s tasks include examining the administration of public funds (Gebarungskontrolle), drawing up final federal budget accounts (Bundesrechnungsabschluss) and as of recently, the income inquiry in accordance with the Federal Constitutional Law on the Limitation of Public Functionaries Income (Bundesverfassungsgesetz über die Begrenzung der Bezüge öffentlicher Funktionäre, BGBl I 64/1997 in the applicable version). Examining the administration of public funds (Gebarungskontrolle) involves the assessment of all operations within the audited institutions that have a financial impact. Audits are performed on the whole state economy of the Federation, the states and all communities with at least

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20,000 inhabitants. Several other legal entities are subject to examination by the Public Audit Office, as they are substantially influenced by federal or regional bodies or because they operate on public funds. These include endorsements, funds and institutions administrated by federal authorities or by persons appointed for this purpose by authorities of the Federation and enterprises where public entities are either the sole participant or participate to a certain extent. The Public Audit Office also examines the financial administration of corporations established by public law that use federal funds; and the financial management of the social insurance bodies, the professional corporations (gesetzliche berufliche Vertretungen) and the ORF (Austria’s national broadcasting corporation). The criteria the Public Audit Office have to apply when examining the administration of public funds are those of arithmetical correctness, compliance with existing regulations and the employment of thrift, efficiency and expediency. These economic principles are of particular interest nowadays. They work as the constitutional basis for administrative reforms which try to strengthen the effectiveness and efficiency of the administration and which reflect ideas of new public management (NPM). The fact that the Public Audit Office is entitled to scrutinise whether the administration acts in compliance with the law might clash with the powers of the Administrative Court and the Constitutional Court respectively. It might happen (and it has already happened) that especially in the field of public funding, the Public Audit Office criticises the spending habits of an authority holding it to be illegal. When the authority follows the opinion of the Public Audit Office, nevertheless, the Constitutional Court may find that the authority’s policies were legal in the first place as the law had to be read in the light of the constitution, something the Audit Office failed to do. Disputes over the interpretation of a law between the Public Audit Office and the Constitutional Court may therefore prove to be costly for the holder of a substantive right who would have to file an application with the court because the administration denies her or him a right under the pressure of the Public Audit Office. The influence the Public Audit Office may have on the administration results mainly from the authority it derives from public opinion rather than from the legal consequences its examinations have. It has no other legal instruments available other than to submit the results of its examination to the appropriate legislative body, whose task it is to decide whether there should be (legal) consequences. Before the Public Audit Office files its report to the appropriate legislative body, a



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draft version (Rohbericht) is sent to the audited entity which is entitled to express its opinion. Although the draft version of the report is strictly confidential, it happens very frequently that important parts leak out and are published by the media. As the Public Audit Office enjoys a good reputation and a wide ranging authority in public, the criticised entity is under heavy pressure to change their fiscal management as it will never receive the same attention when answering to the draft report even if its arguments are reasonable and conclusive. Reports of the Public Audit Office may therefore also come in handy if the government intends to get on with reforms in the field of public administration that would otherwise be successfully blocked by the civil service. ii.  The Ombudsman Board 77 The Ombudsman Board was established in 1977 and is based on the Swedish model of the ‘ombudsman’. It consists of three members, the chair rotating annually between them. They are elected jointly on the basis of a recommendation by the Main Standing Committee of the National Council (Hauptausschuss). Each of the three political parties with the most seats in the National Council is entitled to nominate one member, who will serve a term of six years and may be re-elected only once. This provision clearly reflects the situation of the 1970s’ National Council when only three parties were represented. The idea was that each party could nominate one ombudsman. Until 2006 the third ombudsman was actually always nominated by the Freedom Party, as it was the party that always came at least third in the elections. In 2006, when the Ombudsman Board had to be re-elected, the Green Party and the Freedom Party jointly held the third place controlling exactly the same number of seats. This was a situation the constitution did not provide for. Parliament’s decision was that the right to nominate the ombudsman in the third place should go to the party that had gained more votes, which in this case was the Green Party. The task of the Ombudsman Board is to investigate into any form of potential maladministration within the executive branch of government. Maladministration means more than a failure to comply with legal regulations. Virtually everything that could give rise to complaint from 77  For an overview on European Ombudsman Institutions see G KucskoStadlmayer, European Ombudsman-Institutions (Wien, Springer, 2008).

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the public may be reviewed: unfriendly behaviour of civil servants, excessively complicated application forms etc. The Ombudsman Board may take action following a complaint that may be lodged by anybody who is a victim of maladministration and who has no further recourse to legal remedy. The Ombudsman Board may also investigate its own suspicions of maladministration. In reality, however, these two grounds are mixed up. That means that citizens might refer a case to the Ombudsman Board at a time when their case is still pending. Although the constitution might be read in a way that the Ombudsman Board is not to intervene in open cases, it may do so claiming to further investigate on its own suspicions. As interventions by the Ombudsman Board are not necessarily performed on legal grounds, but also on political grounds (the ombudsmen are all politicians) their intervention may sometimes clash with due course procedures and lead to preferential treatment of a single person. The activities of the Ombudsman Board are therefore not always in line with the principle of Rechtsstaat. Again, the influence the Ombudsman Board may have on the administration stems from its political authority rather than from its legal power. Administrative authorities must furnish all requested information and provide access to their files. The Ombudsman Board may issue recommendations on measures to be taken in or resulting from particular cases. Authorities must either follow the recommendations or state in writing their reasons for not complying with them. The Ombudsman Board summarises its activities in an annual report presented to the National Council and the Federal Council. It remains with these Councils to formally react to maladministration by amending laws or by calling government to account. Only with respect to ordinances, the Ombudsman Board has a specific legal power: it may request the Constitutional Court to pronounce on their legality. The popularity and the high esteem the Ombudsman Board enjoys in public are not a result of its reports filed to the appropriate parliaments or the contesting of an ordinance. They largely stem from weekly TV shows that were already run on a channel of the Austrian Broadcasting Company (ORF) in the 1970s and in which cases were referred to the public and the ombudsman was given a forum to publicly exchange arguments with a representative of the authority (who was barely familiar with the media). Thus, sometimes an alarming state of affairs within the Austrian administration was disclosed to the public, but sometimes only political pressure was exercised regardless of the legal situation.



Further Reading  105

VII. Conclusion

Other than the framers of the constitution may have envisaged, parliament did not become the most powerful political organ of the republic. In substance, the legislation proceedings are mainly influenced and controlled by the executive branch of government in co-operation with the institutions of the so-called social partnership. Parliament thus sometimes is reduced to a legislative machinery passing bills on demand. The power of the executive branch of government vis-à-vis parliament mirrors the party hierarchy which is supported and upheld by an electoral system that mostly leaves it to the political parties to present successful candidates. Thus, their loyalty to the political party and the party hierarchy is ensured. Parliamentarism may still be deemed underdeveloped with respect to parliament overseeing the executive branch of government. Apart from various rights to interrogation, there are no effective instruments at the disposal of opposition parties to control government. In the eyes of the public, however, the Public Audit office and the Ombudsman Board exercise some effective control over the administration. Further Reading Gottweis, H, Die Welt der Gesetzgebung (Wien-Graz, Böhlau, 1988). Hengstschläger, J, Rechnungshofkontrolle (Wien, Manz, 2000). Holzinger, G and Unger, H, ‘Artikel 26’ in Korinek, K and Holoubek, M (eds), Österreichisches Bundesverfassungsrecht (Wien-New York, Springer, 2010). Kopetzki, C, ‘Grenzen der außerberuflichen Immunität der Abgeordneten’ (1986) 37 Zeitschrift für öffentliches Recht 101. Kucsko-Stadlmayer, G, ‘Die Volksanwaltschaft als Rechtsschutzein­ richtung’ in Schefbeck, G, 75 Jahre Bundesverfassung (Wien, Verlag Österreich, 1995) 557. Schambeck, H (ed), Österreichs Parlamentarismus (Berlin, Duncker & Humblot, 1986). Sully, M, Political Parties and Elections in Austria (London, C Hurst & Co Publishers Ltd, 1981).

4 The Executive Branch of the Federal Government

O

Introduction – Highest Authorities – Federal President – Federal Cabinet – Civil Service – Foreign Affairs and European Membership – Federal Budget – E-Government – Nationalised Industry – Conclusion I. Introduction

A

s already emphasised in chapter three, other than the constitution might have intended in 1920, parliament did not become the most powerful institution in Austria. In reality, the executive branch of government arguably holds most of the political power. This is due to some already discussed facts: the Federal Cabinet’s members are, usually, the leading figures of the governing parties. As the internal structures of political parties in Austria tend to be oligarchic rather than democratic, party leaders do not risk debates over their activities as long as the party is successful in election campaigns. Over the decades, constitutional amendments have further strengthened the power of the executive branch at the expense of parliament. One of them, the 1929 amendment, transferred powers from parliament to the Federal President and the Federal Cabinet. Austria’s accession to the European Union massively reduced the legislative power of parliament in favour of the Federal Cabinet. Within the executive branch of government, the Federal Cabinet might be seen as the most powerful organ in Austria. This chapter aims to illustrate that observation. It will introduce the rather formal concept of the ‘highest authorities’ in a short section.

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Further, it will deal with the role of the Federal President. Although strengthened by the 1929 constitutional amendment her or his powers may only be exercised on recommendations by the Federal Cabinet and a Federal Minister respectively, with some notable exceptions. One notable exception is the appointment of the Federal Chancellor, the other the notifications of laws passed by parliament. It will be discussed how federal presidents have used these powers over the last few decades. The en-suite part of the chapter will be devoted to the Federal Cabinet. It will deal with its formation and give an overview on its main responsibilities. Its influence on the federal administration by means of directions will be discussed. Limits might be set by the establishment of independent authorities and autonomous bodies. Further, it will be shown how the Federal Cabinet and thus the political parties are in control of the civil service. Later parts of this chapter will demonstrate how increasing numbers of international treaties, the establishment of judicial bodies of international organisations and Austria’s access to the European Union have again shifted powers from parliament to the Federal Cabinet. It will be shown how the Federal Cabinet is in charge of drafting the Federal Finance Act and that even measures within the framework of e-government have decisively increased the power of the Federal Chancellor. The last part of the chapter will deal with the history of the nationalised industry. This is effectively a history of political parties losing some of their spheres of influence. II. Highest Authorities

It might serve as an example of the strictly legal and formal approach the constitution and constitutional theory takes that the Federal President, the Federal Ministers and the State Secretaries are merely denominated the ‘highest executive authorities (organs)’ of the Federation. Constitutional theory defines the position of these organs, again strictly in a formal sense. According to this definition they can only be author of, but never subject to, a direction (except ‘State Secretaries’,1 who may be bound by the directions of the Federal Minister to whom 1

  For the term and function of a ‘State Secretary’ see chapter three II.



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they are attached and are still classified as ‘highest authorities’ by the constitution). Their decisions are not subject to review by other authorities, unless expressly provided for by a constitutional law. Such constitutional laws exist: for example, Article 35 paragraph 2 of the Data Protection Act 20002 provides the constitutional basis for establishing the Data Protection Commission (Datenschutzkommission) and Article 14b paragraph 6 of the Federal Constitution serves the same purpose with respect to the Federal Procurement Authority (Bundesvergabeamt). Both authorities may review decisions of the highest organs. Furthermore, the highest authorities may not be dependent on recommendations from other authorities, unless constitutional law provides otherwise. (This is largely done in the case of the Federal President appointing officials on the recommendation of the Federal Cabinet. In these cases, the Federal Cabinet may be bound by the recommendation of third parties). All these requirements are established by the Constitutional Court and the constitutional doctrine. Although neither of these requirements may be used as a defining criterion of the term ‘highest authority’, probably the most important political impact has been to fend off further influences from the social partners. In the 1950s a law provided that decisions of a committee consisting of social partners’ representatives should have a binding effect on the Federal Cabinet. According to the Constitutional Court, this law violated the constitution as it neglected the position of the Federal Cabinet as a ‘highest authority’.3 III. The Federal President

A.  Election and Legal Position of the Federal President Apart from the National Council, the Federal President is the only state organ to be directly elected by the people on a federal level.4 Direct election of the Federal President was introduced by the aforementioned constitutional amendment in 1929. Before that date, the Federal President was elected by the Federal Assembly. The 1929 constitutional 2

  Datenschutzgesetz 2000 BGBl 1999/165 in the applicable version.   VfSlg 2323/1952. 4  The people of Austria, of course, also elect the Austrian members of the European Parliament directly. However, the European Parliament is a European institution and not a state organ. 3

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amendment not only introduced the direct election of the Federal President, but it also furnished the office of the Federal President with additional powers, entrusting the Federal President with a more important role within the political and constitutional system. Direct election was meant to strengthen the political position of the Federal President primarily vis-à-vis parliament. Only a Federal President who was not elected by and answerable to parliament could be able to play an effective counterpart to the National Council. The Federal President is elected for a period of six years. Re-election for a further term in office is possible only once (Art 60 para 5 of the Federal Constitution) – in other words a person can hold the office of Federal President for two consecutive periods, that is for 12 years. After that, another person would have to be elected Federal President for at least one period of office. However, this person would not even have to complete the period of office to enable re-election of the former president for another two subsequent terms. In reality, however, no president who has served two full terms was ever re-elected a third time, which would have been impossible in most cases anyhow, as presidents more often than not have died in office. Nevertheless, such a scenario of a third time re-election was considered when President Waldheim left office after having served one term and re-election seemed impossible because of diplomatic reasons. Still, it did not happen as his predecessor refused to run for a third period. The type of popular election follows the same principles as elections to the National Council, except that elections are not based on a proportional system. The Federal President is elected by an absolute majority of votes, which makes a second ballot necessary if no candidate gains an absolute majority of all the valid votes cast in the first ballot. All Austrians who may vote in elections to the National Council are entitled to vote for the Federal President. Of those, all who are 35 years of age by the end of the election day are eligible to stand for election as Federal President. However, members of ‘ruling houses’ or of ‘formerly ruling families’ (as the constitution phrases it) are not permitted to stand for election. This provision stems from the political situation in 1920: it is aimed to prevent the re-establishment of the Hapsburg Monarchy.5 5  Members of the Hapsburg family have unsuccessfully tried to challenge this law in the Constitutional Court. Before the 2010 presidential election campaign started a member of the Hapsburg family again threatened to challenge this law, this time at the ECtHR (a challenge that might have been successful in the light of the recent



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In reality, the political parties choose the candidates who run for the election. Interestingly, the candidates did not necessarily have to be members of the parties which supported them. The first president of the First Republic, Michael Hainisch (who was elected by the Federal Assembly), for example, and Rudolf Kirchschläger, the fifth president of the Second Republic, both were not members of a political party. But also for party members it has become a habit that, once elected, they cease their membership or at least, put it on hold. Holding the office of the Federal President is incompatible with the exercising of any other function. Therefore, the Federal President may not belong to any popular representative body or exercise any other occupation during their period in office. As a compensation, he or she is entitled to receive the highest income a public functionary can receive according to the ‘income pyramid’ (Einkommenspyramide, cf chapter three). It currently amounts to almost €320,000 per year. Austrians do not elect a vice president. If the Federal President is prevented from the performance of his or her duties, the Federal Chancellor shall deputise. The three Presidents of the National Council collectively deputise for the Federal President if the impediment lasts longer than 20 days, if the National Council has voted on a motion to demand the Federal President’s removal from office or if the position of the Federal President is held in abeyance, which may be the case if she or he has died in office. B.  The Powers of the Federal President The 1920 Constitution attributed mainly representative responsibilities to the Federal President, thus filling some of the positions left by the abolition of the monarchy. Her or his main function was (and still is) to act as a ‘Head of State’ and represent the republic internationally. With this respect the legal position of the Federal President is somehow peculiar, as on one hand, it seems to be placed above all other state organs and the president’s powers relate to all other state functions (legislative, executive branch of government, jurisdiction). On the other decision Frodl v Austria, App no 20201/04, ECtHR 8 April 2010). It was therefore discussed whether the relating constitutional provisions should be rescinded by parliament. Although it seemed feasible to find a majority supporting such a motion, nothing ensued from the debates so far.

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hand, however, the Federal President is only one of several ‘highest executive authorities’. Her or his acts are therefore legally classified as executive acts; that is as ordinances or administrative decisions. Nevertheless, most of the actions a Federal President might take are to be directly based on constitutional law and not specified by a ‘simple law’. The main powers the Federal President was additionally furnished with by the 1929 amendment were the power to dissolve the National Council (but only once for any particular reason) and govern on the basis of emergency decrees until its re-election, as well as the power to appoint and dismiss the Federal Cabinet (until the 1929 amendment the Federal Cabinet had to be elected by the National Council). But the legal framework for the exercise of presidential power was not further amended: what has remained was the need for a recommendation, on which the Federal President is entitled to act only. Usually the Federal President therefore cannot act without a (previous) recommendation of the Federal Cabinet (and sometimes other institutions, like a Federal Minister). This seems to be conclusive from the point of view of the (governing) political parties: it guarantees their influence as the president may not act without their consent. Of course, it is debateable whether the Federal President might choose not to follow a recommendation and not to act at all. There are some major exceptions to this rule: the most prominent ones are the appointment and the dismissal of the Federal Chancellor, which do not need any recommendation at all. In the case of appointing or dismissing the Federal Chancellor the powers of the National Council ensure – by a possible vote of no confidence – the influence of the political parties. As the powers the Federal President holds vis-à-vis parliament are to be exercised on recommendation of the Federal Cabinet, it might especially be said that the 1929 amendment has not primarily strengthened the powers of the Federal President, but the powers of the Federal Cabinet. Apart from that, strengthening the Federal President’s position was politically highly controversial: whereas the Social Democrats continued to place emphasis on a strong parliament, the Conservatives would have preferred to re-establish the monarchy.6 As so often, the result of the 6   A Pelinka and F Plasser (eds), The Austrian Party System (Boulder-San FranciscoLondon, Westview Press, 1989).



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conflict was a compromise. The position of the Federal President was strengthened, but is still not as powerful as, for example, the position of the President of the United States of America, the Russian Federation or France. Therefore, since 1929 it is fair to describe Austria as a parliamentary democracy with aspects of a presidential system. The constitutional amendment was motivated by the hope that a more powerful president would be able to ‘maintain’ law and order and thus prevent a civil war. As history shows, these hopes were dashed. In 1930, the then Federal President Wilhelm Miklas used his powers to dissolve the National Council for the first and, so far, only time in Austrian history. Remarkably, President Miklas could not draw on the specific democratic legitimation of this power the 1929 amendment had provided for as he was not elected by the Austrian people but by the Federal Assembly back in 1928 (the first directly elected president actually being Theodor Körner in 1951). The general election that followed the dissolution of the National Council in 1930 was won by the Social Democrats who, for the first time since 1919, gained a relative majority. Although the Social Democrats remained in opposition, the outcome of the election was obviously not in the interest of the Federal President, a conservative and member of a catholic academic association himself. He therefore did not intervene when the (conservative) Federal Cabinet exploited a parliamentary crisis in 1933. All three presidents of parliament7 resigned from their office during a turbulent session. Consequently, the session could not be officially closed and any further convening of parliament could be questioned from a legal point of view, as the Standing Orders did not provide for that case (nowadays, of course, they would: the eldest member of parliament would be called into action). The Federal Cabinet thus prevented any further conventions of parliament and was governed by ordinances that were based on a law dating from 1917 which was basically designed to manage the economic crisis caused by the war (Kriegswirtschaftliches Ermächtigungsgesetz). This law was formally adopted by the republic and played a certain part still in 1919. Nevertheless, it remains fairly clear that its scope hardly covered any of the cases it was 7

 The Austrian parliament is chaired by three presidents: the strongest party nominates the First President, the second strongest the Second President and the third strongest the Third President. All three presidents are elected by the National Council, which usually follows the nomination, although it has the power to refuse a candidate.

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applied to in 1933 as even the 1934 Constitution was enacted by a Cabinet decree based on this law. President Miklas, who must have been aware of the illegality of the actions taken by the Federal Cabinet, did not dismiss the Cabinet. What his motives really were and to which extent he also willingly participated in the establishment of a catholic-authoritarian regime remains speculation. Certainly, he did not support Austria becoming a part of the German ‘Reich’. Already back in 1919, he had voted against the constitutional provision declaring Austria as a part of Germany and in 1938 he refused to sign the law providing for the ‘Anschluss’: Instead, he retired transferring all presidential powers to the Federal Chancellor Seyß-Inquart, who already had been installed on the pressure of Nazi-Germany and who was only too eager to follow the orders from Berlin.8 Although it is widely acknowledged that the Federal President is furnished with powers to guarantee the interaction between the state organs,9 such as parliament, the highest executive authorities and the courts, especially in periods of political instability she or he will not be powerful enough to preserve the democratic constitution singlehandedly. As soon as essential parts of government (and/or the political system) backed by a considerable popular support would opt against democracy, the Federal President would not be able to turn around the course of history. Although she or he is the commander-in-chief of the armed forces, the responsibilities are more of a symbolic nature. The Federal President may not call troops into action – this power rests with the Federal Cabinet or a Federal Minister. Therefore, in such a situation resignation might be the only morally acceptable option. After WWII, during a period of exceptional political stability the Federal Presidents – all of them men of high standing and most of them drawing to the end of their political careers – basically restricted themselves to their representative responsibilities. In times of grand coalition governments, even appointing the Federal Chancellor was not a question of choice. It became a habit to appoint the leader of the party which gained most of the seats in general elections. In 1966, the 8

  cf E Lennhoff, The Last Five Hours of Austria (New York, Frederick A Stokes Company, 1938). 9  M Welan, ‘Der Bundespräsident im System der österreichischen Bundesverfassung’ in G Schefbeck, 75 Jahre Bundesverfassung (Wien, Verlag Österreich, 1995) 483.



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Federal President swore in a conservative government as the People’s Party won the absolute majority of the seats albeit he – a Social Democrat – might again have preferred a grand coalition government. And in 1970 he appointed a minority government formed by the Social Democrats that was supported by the Freedom Party, although the conservatives were furious and accused him of not allowing enough time to negotiate on other options. During the first decades of the Second Republic Austrians perceived their Federal President as a merely representative, highly regarded elder statesman, who otherwise lacked any essential political power. This image was probably a result of two facts: for once, a political system that enjoys stability, in Austria, does not provide the Federal President with much room to exercise political power. Secondly, until the 1980s all presidents of the Second Republic were either Social Democrats or social democratic candidates. And the Social Democrats never were in favour of a politically powerful presidency. This all started to (slightly) change in the 1980s. With the Green Party emerging and the Freedom Party getting stronger and stronger, first at the expense of the People’s Party and later also of the Social Democrats, more options to build coalition governments became available. Consequently, the power of the Federal President to influence the formation of a Cabinet gradually increased. Apart from that, the presidency was clinched by conservative candidates, who promised to play a more ‘active’ part. Remarkably, the first attempt of a president to become what was called a ‘strong’ president failed completely. The formerly highly regarded Secretary-General of the United Nations, Kurt Waldheim, who had promised in his election campaign to play a more influential part as president, was probably the weakest president this country ever experienced. What allegedly started as a social democratic conspiracy ended up in a self-inflicted personal crisis and a crisis of the presidency and the republic as well. When the Social Democrats sensed that they might lose the presidency for the first time in the Second Republic and the People’s Party felt that they could win it, the election campaign literally turned ugly. Waldheim was confronted with allegations that he had lied over his wartime past and – at some point – that he was even a war criminal. His reactions were largely held to show a remarkable lack of diplomacy and sympathy with the victims of the Nazi regime when he insisted that he had only carried out his duties during WWII – in the

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same way so many other Austrians had done.10 It became clear fairly quickly that the allegations that he had committed a crime during the war could not be proven. But the way he dealt with the question and the allegations did all the damage. He, nevertheless, won the election, which was probably also an act of defiance as it remained unclear who had launched the campaign and whether foreign secret services were involved – rumours were widespread. But as he was put on the ‘watch list’ by the US administration he was subsequently isolated by the rest of the world with the remarkable exception of the Holy See and of some Arab countries. He therefore never had the chance to gain the authority to play a more powerful and active part domestically. Waldheim became the only president who deliberately did not run for a second period of office. Instead, the People’s Party persuaded the diplomat and long-time ambassador Thomas Klestil to run for the election. Eventually, he won it. Restoring Austria’s image during various state visits he also surprised the political system when he refused to follow the routine of appointing a member of the Constitutional Court on the basis of a proposal by the National Council. As the National Council had to suggest three names according to the constitution, it nevertheless had become a habit that the Federal President appointed the first one on the list. President Klestil did not follow that habit, but appointed the third candidate on the list arguing that she was better qualified especially with regard to the federal principle of the constitution. The reaction to this decision was really remarkable: the constitution was amended11 – the National Council (and the Federal Council) no longer had to submit a list of three candidates, but only the name of one candidate (as the Federal Cabinet always had to do) thus curtailing the power of the Federal President and ensuring that it remained entirely in the hands of the political parties to select a candidate. The year 2000 saw the formation of a coalition government between the People’s Party and the Freedom Party following seemingly endless negotiations after the 1999 elections in which the Freedom Party gained almost 27 per cent of the votes and came second. The President, Thomas Klestil, quite obviously tried to influence the negotiations between the political parties, aiming at avoiding the coalition that even10

  cf the analysis of the ‘victim culture’ in D Art, The Politics of the Nazi Past in Germany and Austria (New York, Cambridge University Press, 2006) 115, 135. 11   BGBl 1013/1994.



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tually was formed and that triggered the so-called ‘sanctions’ by European Union Member States.12 At one point, the president even reportedly considered dismissing the newly elected Federal Council, but as polls suggested that the Freedom Party would even get stronger in a possible re-election, the plan was dropped. Nevertheless the president refused to appoint two representatives of the Freedom Party that were suggested as Federal Ministers as their appointment was deemed to be a provocation in the eyes of aliens, immigrants and probably also the Jewish and Muslim part of the population. In this way, President Klestil used his power although in the end he did not succeed, but had to swear in a Federal Cabinet formed by representatives of the People’s Party and the Freedom Party as they were backed by a majority in parliament. At least, he did it only on the condition that the leaders of both parties signed a preamble to their policy statement in which they explicitly had to support respect and tolerance for all people regardless of nationality or religion and to fight discrimination, intolerance, xenophobia, anti-semitism and racism. Further, the Federal Cabinet had to explicitly stand up for Human Rights, the European Integration process and the social welfare state.13 Due to the political situation, President Klestil had the opportunity to exercise the power the constitution had furnished him with – certainly more than any other president of the Second Republic. That a Federal President had political powers and could be willing to exercise them came very much as a surprise to his compatriots and some representatives of the political parties. Nevertheless, he could not prevent the provocation that the participation of the Freedom Party in a coalition government meant to the fundamental principles of the European Union. The fact that representatives of the Freedom Party were in a position not only to spread racist and xenophobic ideas, but from time to time to play down the cruelty of the Nazi regime in effect undermined the commitment to never ever again give way to National Socialism or national socialist ideas. The right wing/conservative government was neither installed in an undemocratic way nor was it per se a 12  L Adamovich ‘Bericht zur Lage in Österreich vor der EU-Delegation des französischen Senats’ (2000) Europäische Grundrechte Zeitschrift 399; M Ahtisaari, J Frowein and M Oreja, ‘Österreich-Bericht für 14 Mitgliedstaaten der Europäischen Union’ (2000) Europäische Grundrechte Zeitschrift 404. 13  Bundesregierung, Zukunft im Herzen Europas: Österreich neu regieren (Wien, Bundespressedienst, 2000).

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fascist government. But again, Austria was haunted by the demons of its past with which it never dealt properly and which therefore never went away. Interestingly, the conflict between the Federal President and the future government did not coincide with the usual conflict between the political camps. As a former member of the People’s Party and catholic academic association, the president risked a conflict with his own party and the party that had supported his re-election in 1998. Some conservatives were furious over ‘their’ president, arguing that he should have been more loyal in supporting their policy of forming a conservative government. Apart from the power to appoint and dismiss the Federal Cabinet, the Federal President has been attributed with another responsibility she or he may exercise without further recommendations by the Federal Cabinet. According to Article 47 paragraph 1 of the Federal Constitution, the Federal President must authenticate the ‘constitutional enactment’ of any federal law. The wording of this constitutional provision has led to a discussion on the extent of the president’s power of review and thus influence on the legislative process.14 Two points are universally accepted amongst public law scholars. First, the Federal President has the right – and the duty – to review law-making procedures on formal grounds, which means to check that the procedural rules have been observed, for instance if a vote was held according to the Standing Orders of the National Council. And secondly, that the Federal President is not allowed to refuse his or her signature on political grounds. Thus she or he has no right to veto a bill. Whatever action a Federal President might take, she or he has to offer a constitutional argument. Constitutional theory is divided over whether the Federal President may refuse her or his signature if she or he considers a bill to be unconstitutional on substantive grounds, such as violating fundamental rights. It is sometimes held that the Federal President has full power to review 14

 See D Jahnel, ‘Die Mitwirkung des Bundespräsidenten an der Gesetzgebung’ (1987) Juristische Blätter 633; F Koja, ‘Die Stellung des Bundespräsidenten in der Verfassung. Seine politische Funktion’ in F Weissensteiner (ed), Die österreichischen Präsidenten. Leben und Werk (Wien, Österreichischer Bundesverlag, 1982) 9; K Korinek, ‘Die Beurkundung der Bundesgesetze durch den Bundespräsidenten’ in A Mock (ed), Verantwortung in unserer Zeit (Linz, Österreichische Staatsdruckerei, 1990) 121; E Melichar, ‘Geschichte und Funktion der Gegenzeichnung, insbesondere in der österreichischen Verfassungsentwicklung’ in N Grass and W Ogris (eds), Festschrift für Hans Lentze (Innsbruck, Wagner, 1969) 297.



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a bill,15 whereas other scholars concede the president the power to refuse signature only in cases of serious and obvious violations of the constitution, such as threatening human dignity or endangering democracy.16 Proponents of the idea that the Federal President might review every law she or he is asked to sign on substantive grounds hand enormous legislative powers to the president as the denial of her or his signature would effectively terminate the law-making procedure. Neither does the constitution provide for the National Council to overturn the president’s decision nor does it provide for a court to settle the case. The Federal President therefore could block a statute consisting of, for example, 200 articles because she or he believes that one article would violate a fundamental right. In such a case, the National Council would have only two options: either to alter the offending provision or to initiate rather complicated proceedings to remove the Federal President from office. For reasons outlined in the next section it is hardly imaginable that the latter would be pursued. For these reasons, Federal Presidents for a long time have not even considered claiming the power to review a law on substantive constitutional grounds. The former Federal President Rudolf Kirchschläger even explicitly denied the existence of such a power, arguing that he would otherwise block a law that has found a majority in parliament and therefore would deprive the majority of enacting it at all. For the sake of democracy, he would rather leave it to the Constitutional Court to pronounce on its constitutionality and to possibly rescind it.17 This view, however, was not shared by his (initially conservative) successors. It was due to their claim to play a more active part in domestic politics that they occasionally delayed the process of signing a bill or threatened not to sign it at all. It remains speculation whether a 15  F Koja, ‘Die Stellung des Bundespräsidenten in der Verfassung’ in F Weissensteiner, Die österreichischen Bundespräsidenten (Wien, Österreichischer Bundesverlag, 1982) 9, 13. 16  eg, D Jahnel, ‘Die Mitwirkung des Bundespräsidenten an der Bundesgesetz­ gebung’ (1987) Juristische Blätter 633, 639f. 17  President Kirchschläger’s view is reported in an article by Korinek that remarkably argues that Federal Presidents have the duty to review laws on substantive grounds; K Korinek, ‘Die Beurkundung der Bundesgesetze durch den Bundespräsidenten’ in A Mock (ed), Verantwortung in unserer Zeit (Linz, Österreichische Staatsdruckerei, 1990) 121, 124. To understand the significance of Kirchschläger’s view it is decisive to know that the Constitutional Court would not necessarily rescind the whole statute but rather the affected provision(s).

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president has influenced legislation by making such a threat in advance so that parliament could already adhere to his view before passing the law. In January 2008, however, President Heinz Fischer denied his signature to a bill18 already passed by parliament on the grounds that it contained a provision that clearly and openly violated Article 7 ECHR. The National Council submitted to the Federal President’s view, a Social Democrat, and redrafted the bill, omitting the offending provision. Once passed, the bill was subsequently signed by the Federal President. It is interesting that parliament had at no stage (at least officially) doubted the power of the Federal President, who was advised by a former president of the Constitutional Court. Although the violation of Art 7 of the ECHR could not be questioned – the offending provision introduced measures of retroactive punishment – still only one provision was affected and not the whole statute. It may be asked whether state organs have thereby accepted the Federal President’s power to deny signing a law on substantive constitutional grounds. Politically, however, it would have been unthinkable to insist on the provision and to try to initiate the president’s removal from office. In fact, a precedent has been created and time will tell if it will open up a new dimension of presidential power previously not considered. Should future presidents limit this power to cases in which the violation of the constitution is obvious and clear, the increase of presidential powers would only be marginal, as in most cases, however, the violation of the constitution is more or less debatable, especially under the scope of fundamental rights. It remains to be seen how future presidents will cope. C.  Accountability of the Federal President Constitutional theory sees the main difference between a monarchy and a republic in the liability of the head of the state.19 While a monarch would not be liable at all, the president of a republic would be accountable for the exercising of her or his function. When Austria became a 18

 RV 283 BlgNR 23.GP.  P Pernthaler, Allgemeine Staatslehre und Verfassungslehre, 2nd edn (Wien, Springer, 1996) 164f. 19



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republic in 1918/20, the constitution provided for the accountability of the Federal President. The 1920 Constitution followed a clear concept: politically, the Federal President was not accountable. All her or his acts had to be countersigned by the Federal Chancellor or the appropriate Federal Minister. By means of their signature, they accepted political responsibility. In the context of the 1920 Constitution, this was somehow conclusive: the Federal President could only act on recommendations and her or his actions needed to be countersigned as valid. Legally, the Federal President was nevertheless responsible: the Federal Assembly could take an action against the Federal President before the Constitutional Court for any alleged culpable breach of the constitution. The Federal Assembly had to convene if either the National Council or the Federal Council had so demanded. For such a decision a majority of two thirds – with half of the members present – in either chamber was needed. In case the president was found guilty, the Constitutional Court had only the option to decide on loss of office and – in severe cases – additionally even on a temporary loss of political rights (such as the right to vote). Apart from that, the Federal President enjoyed immunity and a legal process against her or him was only admissible with the consent of the Federal Assembly. In 1929, when the direct election of the Federal President was introduced, this concept was slightly altered and provisions pertaining to the political accountability of the Federal President were added.20 Politically, she or he is accountable to the people. Removal from office therefore requires a referendum that has to be initiated by the Federal Assembly following a motion of the National Council. Again, such a motion must be supported by at least two-thirds of the members with half of them present for the vote. If the referendum accepts the deposition, the Federal President is removed from office. However, rejection by the referendum counts as a new election of the Federal President (whereby the period of office must not exceed 12 years) and at the same time automatically effects the dissolution of the National Council. Procedures to remove a Federal President from office have never been initiated. This is not only due to the fact that tensions between parliament and a Federal President never reached a point where such a motion could 20  Remarkably, however, presidential acts still needed to be countersigned – with one exception, of course: the dismissal of the Federal Chancellor.

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have duly been considered, but also lies in the way procedures are designed. Neither a decision from the Constitutional Court nor the result of a referendum would be predictable. In particular with regard to the latter, procedures would only make sense if polls suggest that the president might lose the referendum. Otherwise, initiating such a procedure might prove suicidal (as the National Council would automatically be dissolved). As long as a president enjoys public support and especially support by the most influential media, it might even be politically unwise to initiate proceedings against her or him before the Constitutional Court. In 2008, for instance, it would have been completely unthinkable to take an action against the Federal President for an alleged breach of the constitution because he had not signed a law that included a provision that violated Article 7 ECHR even if the Court would have given preference to a constitutional theory according to which the president had no powers to review a law on substantive grounds. First, the violation of Article 7 ECHR was so obvious that nobody could publicly be in favour of this provision. Second, as the president acted on legal advice, he could have hardly been found culpable of breaching the constitution. A law suit would have ended only to the embarrassment of parliament. In general, it will be apparent that as long as a Federal President enjoys the support of a party which commands at least one third of the seats in both the National Council and the Federal Council, a motion to convene the Federal Assembly in order to take actions against the Federal President could always be blocked. Such a president may be tempted to exhaust her or his powers, for instance, the power to refuse signing a law on substantive constitutional grounds as she or he would not risk any immediate consequences. The constitution thus provides for a legal framework which – under specific circumstances – offers substantial political powers to the Federal President.21 The dispute between constitutional law scholars over the extent of presidential powers would therefore be decided on political rather than on legal grounds. Substantial conflicts between a Federal President and parliament (at least its majority) sooner or later have to be resolved by the people – either in a referendum or in a general election. Therefore, neither the Federal President nor parliament can be certain of who would prevail in the event of a conflict (even polls may deceive). The political and legal significance of the framework described above lies in the aim of avoid21

 See earlier in this chapter.



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ing such a conflict to exaggerate. Instead, the conflicting parties should try to find a compromise. It is clear that if the people were called upon to settle the conflict, but were unable to do so, the constitutional crisis would be prolonged. In such a case it could be questioned whether ‘Austrian Society’ would still be willing to live under this constitution. But a constitution cannot cater for every possible eventuality: every constitution depends on being accepted and being brought to life. IV. The Federal Cabinet

A.  The Appointment of the Federal Cabinet As has already been observed, the Federal Chancellor is appointed by the Federal President. As the appointment of the Federal Chancellor does not require a recommendation, the Federal President is legally free to choose whomever she or he wishes, as long as this person is eligible to the National Council. It is merely a matter of convention that the Federal President usually asks the leader of the largest party to form a government. The same applies in respect of the custom that the Federal Cabinet offers its resignation after general elections have been held. Indeed, every Federal Chancellor and his or her government must enjoy the National Council’s confidence. By holding a vote of no confidence (see chapter three) the National Council can more or less force the Federal President to dismiss the Federal Chancellor or the whole cabinet. It has already been noted that the ‘vote of no confidence’ is the decisive instrument to limit the president’s power to appoint the Federal Cabinet. In reality, therefore, the president’s influence on the formation of the Cabinet (and the government) depends primarily on the result of a general election. If a party (or a coalition) has gained a clear majority, the president practically has to appoint the candidates presented by the party. Should the result of the election make various coalition governments possible, the Federal President might effectively influence the formation of a government – depending on the authority she or he might have. Nevertheless, basically it is in the hands of the political parties to present a government and only if they are deeply divided over the formation, the president might play a part. The other members of the Cabinet, including the Vice Chancellor, are appointed by the Federal President on the Chancellor’s recommendation.

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As history demonstrates, the Federal President might refuse the appointment of Cabinet members in rare and exceptional cases, but, usually, presidents have followed the recommendations of the Federal Chancellor which, in the case of a coalition government, are based on the parties’ agreement. Traditionally, each coalition party has the power to nominate its own candidates once the internal distribution of the ministries has been settled. The other coalition party normally will not interfere. In nominating Cabinet members each party will meet its own internal requirements. In reality, the Federal Chancellor will therefore not choose the members of ‘her or his’ Cabinet, but recommend candidates according to party agreements and party decisions. Detailed rules apply, should the Federal Chancellor or a Cabinet Minister be temporarily prevented from discharging their responsibilities. Traditionally, the constitution provided for the Vice Chancellor to deputise for the Federal Chancellor. In all other cases it fell within the responsibility of the Federal President to appoint a deputy. As Austria’s accession to the European Union triggered the need for Federal Ministers to travel on a regular basis, this procedure was deemed to be too complicated. The responsibility to appoint a deputy was therefore taken away from the president in two steps. In a first step, the constitution assumed that a Cabinet Minister staying in a Member State of the European Union was not prevented from discharging her or his responsibilities. In such a case the Federal Constitution allows a Cabinet Minister to delegate her or his business in the National Council or Federal Council to a ‘State Secretary’22 attached to her or him or to delegate this business to another Cabinet Minister. In the second step, similar provisions came to effect in all cases of prevention: a Cabinet Minister may nowadays ask another Cabinet Minister, a ‘State Secretary’ attached to her or him or a senior civil servant of her or his ministry to deputise. The Federal Chancellor may even delegate this business to a ‘State Secretary’ attached to the Vice Chancellor and the Vice Chancellor to a ‘State Secretary’ attached to the Federal Chancellor. This rule assumes that in a coalition government formed by two parties the Federal Chancellor and the ‘State Secretary’ attached to the Vice Chancellor are members of one party while the Vice Chancellor and the ‘State Secretary’ attached to the Federal Chancellor are members of the other party. Thus it remarkably ensures 22

 See chapter three II for the term and the role of a ‘State Secretary’.



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that the exercising of the office of the Federal Chancellor and the Vice Chancellor respectively will remain in the hands of one and the same party. The new rules clearly favour party interests over the initial ideas of the constitution.23 The two amendments to the constitution described here are therefore interesting only because they demonstrate how the constitution already overshadowed by the party system is amended only to serve the interest of the political parties. It is remarkable that no Standing Orders exist for the proceedings of the Federal Cabinet. Whenever a commission, a committee or even a tribunal has to operate without Standing Orders, the Constitutional Court normally would assume that it is quorate only when all members are present and decisions have to be taken on the basis of a majority vote.24 This general rule was never applied to the Federal Cabinet. Contrary to this general rule, decisions of the Federal Cabinet had to be taken unanimously – an idea that was based on the 1918 Rule of Procedure of the State Government including the principle of unanimity – and absentees were tolerated. This allowed Federal Ministers who would not be in favour of a motion, but would not want to spoil the unanimity not to lose face. Only in 1997 a constitutional amendment provided for a quorum of the Federal Cabinet – since then the Cabinet is quorate when half of its members are present (Art 69 para 3 of the Federal Constitution). The principle of unanimity is still upheld. In coalition governments, especially when one party emerged considerably stronger in the general election and therefore has successfully claimed more ministries, this principle ensures that no coalition partner may outvote the other partner(s) in the Federal Cabinet. By that, of course, a small party participating in a coalition government may have more influence on government policy than its share of votes may suggest. B.  The Powers of the Federal Cabinet According to the constitution, the Federal Cabinet and the Federal Minister are the heads of the federal administration.25 Consequently, they are subordinated to parliament – bound by its laws and accountable 23

 See Art 73 of the Federal Constitution.   VfSlg 7837/1976. 25  See Art 69 of the Federal Constitution. 24

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to it. From a political point of view, however, the Federal Cabinet and its members are arguably the most powerful organs of the Federation and, thus, the entire republic. The Federal Cabinet as such performs mainly strategic responsibilities. It effectively controls the legislative branch of government, predominantly because of the two reasons already discussed above. First, the most influential officials of the political party (or parties in the case of a coalition government) or their stakeholders usually become members of the Federal Cabinet. That ensures the ongoing support of the majority in parliament, as otherwise the party hierarchy might be jeopardised. Should an influential politician lose her or his power or support, she or he would resign from the Cabinet and give way to somebody else. Second, it is the Federal Ministers who are in charge of a large bureaucracy, the Federal Ministries, that provide for the relevant information and expertise which is needed to draft a bill. Further it is the Federal Cabinet that arranges the elections both for the National Council and the Federal President. By way of recommendations, it directs the use of presidential powers and thereby also designs foreign policy. It supervises the legislation of the states26 and may decide on the deployment of the Austrian Armed Forces (or delegate this responsibility to a Cabinet member). It is the Federal Minister of the Interior who is in charge of the police forces, which are almost entirely organised at federal level. Members of the Federal Cabinet represent Austria in the Council of the European Union and thus participate in the European law-making procedures. The implementation of federal law resides with an individual Federal Minister rather than the entire Federal Cabinet. Each Federal Minister who is in charge of a portfolio is also the head of a Federal Ministry that supports the minister in performing her or his duties. The power of a minister extends over the territory of the whole Federation, but is limited to certain matters, thus introducing a departmental system (Ressortsystem). The number of Federal Ministers and the powers allocated to them are determined by the Federal Ministries Act.27 It is quite common for the Federal Ministries Act to be amended in the aftermath of the formation of a new government, as not only the denomination of ministries may be changed (there were times when it was decisive that the Vice Chancellor was entrusted with a ministry 26

 See chapter five IV.   Bundesministeriengesetz BGBl 76/1986 in the applicable version.

27



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denominated in a way to be first in the alphabetical order as the Federal Ministry Act lists the ministries in alphabetical order next to the Federal Chancellor). Also the allocation of responsibilities is sometimes altered following a shift in power after elections with new ministers from different parties taking over. Such a strategy will be chosen foremost for political reasons, namely to cut ‘networks’ within the ministries and the civil service that might jeopardise the enactment of new policies. C.  The Direction of the Administration Federal Ministers and their ministries respectively may control the entire federal administration within their fields of responsibility by means of directions. Directions may be issued as general instructions, for instance, of how to implement laws in accordance with the policy of the Federal Minister or they may relate to an individual case. Directions do not count as ‘administrative acts’ as they lack an external impact – they can never interfere with substantive rights. Therefore, directions cannot be reviewed by the Administrative Court. Constitutional and administrative theory has nevertheless paid special attention to illegal directions,28 especially when they were politically motivated and came from Cabinet Ministers. Politicians can influence law enforcement and may do so on political grounds, possibly even be backed by a parliamentary majority. Officials have to comply even with unlawful directions, but are entitled by law to demand a direction in writing. The Federal Constitution allows officials to refuse to comply with directions if they were not issued by a responsible authority or if compliance would infringe the criminal code. The idea that directions rule the entire administration and thus ensure the overall influence of a minister answerable to parliament forms a vital part of Austrian democracy, at least in theory. In his famous book on the essence and value of democracy Kelsen29 has argued that only an 28

 G Kucsko-Stadlmayer, ‘Legalitätsprinzip und Weisungsgebundenheit des Beamten’ in R Walter and C Jabloner (eds), Strukturprobleme des öffentlichen Rechts (Wien, Manz, 1995) 77; R Novak, ‘Weisungsprinzip und Verwaltungsbegriff’ in H Schäffer (ed), Im Dienst an Staat und Recht (Wien, Manz, 1983) 359; H Walter, ‘Zur Ablehnung einer strafgesetzwidrigen Weisung’ (1983) Österreichische Gemeindezeitung 546. 29  H Kelsen, ‘On the Essence and Value of Democracy’ in AJ Jacobson and B Schlink (eds), Weimar: A Jurisprudence Of Crisis (Berkeley-Los Angeles, University of California Press, 2002) 84.

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administration strictly bound by directions may ensure that the will of the democratic law-making authority is enacted. Directions or at least the possibility to be bound by them underpins the administration with democratic legitimation. Authorities that operate outside the system of ministerial responsibility therefore pose a problem relating to democratic legitimation. Nevertheless, quite a few such authorities exist in Austria. The original version of the 1920 Constitution already explicitly provided for the establishment of such an authority on the basis of a specific constitutional provision. The State and District School Boards, the Independent Environmental Tribunal, the Independent Administrative Tribunal, the Federal Procurement Authority and the Federal Asylum Tribunal30 and many others were all established by either an amendment of the 1920 core document or by constitutional laws. In these cases, questions regarding their democratic responsibility never were discussed. The independent tribunals, however, are institutions to review the administration similar to courts and are a part of the juridical system in a broader sense rather than the executive branch of government.31 Other authorities that do not operate under the direction of the highest authorities are established within the framework of municipal autonomy and other autonomous bodies. Although the Federal Constitution itself initially only referred to municipal autonomy, the Constitutional Court accepted the establishment of autonomous bodies in various other fields. The Court argued that the establishment of autonomous bodies was a ‘presupposition’ of the constitution,32 thus being an inheritance from the monarchy which the republican constitution had not explicitly abolished. Kelsen would have emphatically rejected this argument.33 At least, the Constitutional Court ruled that the lack of democratic responsibility of these authorities had to be compensated by the members of autonomous bodies indirectly or directly electing their organs.34 Further, the 1929 amendment to the constitution explicitly provided for the establishment of tribunals whose membership included at least 30

 The Federal Asylum Tribunal was transformed into the Asylum Court by a 2008 constitutional amendment; cf chapter six. 31  See chapter six. 32  See VfSlg 8215/1977. 33  See Kelsen, ‘On the Essence and Value of Democracy’ in Jacobson and Schlink, Weimar: A Jurisprudence Of Crisis, n 29, 84. 34  See chapter five for the principles of self-administration.



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one judge (Art 133 no 4 of the Federal Constitution). In such a case, it was possible to free all members of the tribunal from the need to be bound by directions.35 A later amendment of the constitution even provided for their freedom from directions once specific requirements were met. The federal legislator, as well as the state legislator, set up numerous tribunals according to these provisions. As it was also possible to furnish them with additional guarantees required by Article 6 ECHR, Austria could meet its international duties without reforming its system of administrative review.36 Due to the lack of democratic responsibility, the Constitutional Court set limits on the establishment of these tribunals. The Court assumed that they were similar to courts, thus their establishment being legitimate under the principle of Rechtsstaat rather than the principle of democracy. But the principle of Rechtsstaat works only in cases of litigation or when some extraordinary expertise is required as the legitimation provided by the principle of Rechtsstaat is founded on the basis of professional education. Consequently, such a tribunal in the sense of Article 133 no 4 of the Federal Constitution could only be entrusted with responsibilities similar to traditional responsibilities of courts.37 This became a problem with the need to establish new types of independent authorities, such as regulators which could not be organised as tribunals in the above mentioned sense. A broader constitutional basis for the introduction of independent authorities seemed desirable. The question was intensively discussed in the constitutional convention which also stressed the lack of democratic legitimation once the principle of direction was set aside. Partly following, partly exceeding the suggestion of the constitutional convention, the 2008 amendment of the constitution38 lists eight different categories of authorities that may be exempted from directions by simple law (a state constitution may even add further categories) providing for vast possibilities to set up independent authorities. To compensate for the lack of democratic legitimation, laws must provide for supervision by the highest federal or state authorities, which as a minimum have to have the right to information on all the authority´s administrative business. In some cases, supervision must also comprise the right to dismiss members of independent 35

  cf Art 133 no 4 of the Federal Constitution.  See chapter six. 37   VfSlg 17961/2006. 38   BGBl 2/2008. 36

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authorities on certain severe grounds. Additionally, Article 52 paragraph 1a of the Federal Constitution empowers the responsible committee of the National Council to summon their heads and to question them on all their administrative business. Along with the enactment of this new constitutional basis, a large number of constitutional provisions that had been needed to serve as the basis for independent authorities were downgraded to simple laws. As the tribunals established according to Article 133 no 4 of the Federal Constitution were incorporated into the new system, it seems to be more than doubtful that they still meet the requirements of Article 6 ECHR (where it applies) as their business is subject to governmental supervision and their heads are answerable to parliament. Therefore, it seems to be a conclusive step that the governmental draft bill introducing state Administrative Courts tabled in February 201039 envisages abolishing more than one hundred independent authorities. Independent authorities and autonomous bodies limit the power of the Federal Cabinet to a certain extent and thus contribute to the concept of the (vertical) separation of powers. In reality, however, this may be overshadowed by the party system and thus by party loyality. Federal Ministers who are entitled to appoint members of tribunals or other independent authorities may exercise their responsibilities in the interest of their political parties. Members of these tribunals may even be appointed by the social partners or other interest groups. Elections to the organs of autonomous bodies, for instance municipalities, may be won by candidates chosen by political parties. The organs of the social insurance bodies are elected by the social partners again guaranteeing the influence of the political parties affiliated with these institutions. D.  The Accountability of the Federal Cabinet and Federal Ministers It may be argued that the Federal Cabinet is, on one hand, accountable to the Federal President. The Federal President has the power to dismiss the Federal Chancellor and the entire Federal Cabinet and may dismiss Cabinet members on the recommendation of the Federal Chancellor. Theoretically, the Federal President could dismiss the Federal Cabinet at 39

  cf chapter six.



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any time she or he wishes to do so, for instance, when she or he has lost confidence in the Federal Cabinet or is not satisfied with its performance. In reality, this has never happened, as the Federal Cabinet mainly needs the support of parliament or, to be more precise, the majority of its members and thus the governing political parties. As already noted, the Federal Cabinet and Cabinet members respectively are answerable to the National Council and Federal Council. The right to interrogation has already been dealt with in chapter three. Apart from that, the National Council may claim the political liability of the Federal Cabinet or a Cabinet member by passing a motion on a vote of no confidence. Subsequently, the Federal Cabinet or the Cabinet member will have to be dismissed by the Federal President. Should the National Council have evidence that a Federal Minister has culpably violated the law in performing her or his official activities, it may pass a motion to prosecute the Federal Minister before the Constitutional Court which, in turn, may decide upon loss of office. In reality, the National Council has never passed a motion either to express loss of confidence or to prosecute a member of the Federal Cabinet in the Constitutional Court. As absolute majority is required for such a motion, party discipline has effectively prevented the governing parties from supporting the opposition in each case the opposition has tried to remove a Cabinet member from office. Federal Ministers would not offer their resignation in case where irregularities have been discovered within the realm of administration they are entrusted with. Although opposition parties may demand a minister to step down in such cases, it is generally held that she or he should only be liable for personal (and culpable) misdemeanours thus jeopardising the idea of political liability. Further, no code of conduct has been established within the Austrian political system according to which a minister would have to resign. It is probably due to the catholic heritage that also in the view of the public and the media, a penitent sinner has to be forgiven. Therefore, there can be no doubt that the law on the political and legal liability of the Federal Cabinet is very ineffective. But this does not imply that there is no liability at all. What in practice works is the idea that a Cabinet member is liable to her or his own party. Whenever the party feels that a minister who has been confronted with administrative irregularities in her or his realm of responsibilities or with misdemeanour will affect the party’s chances in the next general election, it will ‘persuade’ the minister to resign.

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V. Civil Service

Federal Ministers are supported by large bureaucracies, the federal ministries. It is a typical feature of the Austrian constitution – as well as a heritage of the former monarchy – that the overwhelming majority of the staff members are civil servants who are appointed on a more or less permanent basis. Only a small number of mainly personal secretaries to the minister are brought into office by a new minister and are generally asked to leave office when the minister retires. They form the so-called ‘Bureau of the Minster’ (Ministerbüro). All other staff members are either appointed for life by an administrative decision or employed by contract. Civil servants who are appointed for life by an administrative decision are called ‘Beamte’. Initially, the constitution only referred to this category of civil servants. ‘Beamte’ enjoy a privileged status insofar as they cannot be dismissed other than as a result of a disciplinary proceeding. In reality, such proceedings are very rare and may only lead to a dismissal in severe cases such as criminal offences. Civil servants who are employed by contract are the so-called Vertragsbedienstete. Those contracts may be terminated although only on the – rather narrow – grounds listed by the relevant statutes. In reality, it is therefore not easy for the republic to terminate such a contract. For most of the time, this category of civil servants existed outside the constitution merely backed by the retrospective argument that former civil servants had already been employed by contract in 1919 and the 1920 Constitution did not explicitly rule out this possibility.40 In 2008, however, an amendment incorporated this category in the constitution41 as it became the general policy, at least in some parts of the administration, only to employ officials by contract. As ministers are only allowed to bring a small number of personal secretaries into office, the influence of political parties on the appointment of all other civil servants became a big issue. In fact, party membership or the affiliation to a political party – predominantly the People’s Party and the Social Democrats – could be sometimes just helpful, sometimes important and sometimes even paramount. 40

 R Thienel, Öffentlicher Dienst und Kompetenzverteilung (Wien, Verlag der österreichischen Staatsdruckerei, 1990). 41   BGBl 2/2008.



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Austrians, and especially the media, are quite aware of the political parties occupying the public sphere (which was, at least after WWII, not restricted to the civil service, but comprised chambers, the social insurance bodies and the nationalised banks and industry). Then, the political parties were able to provide their members and affiliates with – more or less – professional careers. This also explains the high number of party members in Austria which reached its peak in the 1970s when both – the Social Democrats and the People’s Party – could claim to have about 700,000 each.42 About two decades ago, a law was enacted that required the public advertising of certain (mainly higher) public functions in case of vacancies. Independent Commissions were established to assess the applications. These assessments are not binding on the minister or the responsible head of a unit but have to be duly considered.43 Although this law clearly provides for a more impartial procedure of appointing civil servants, it has not effectively cut the influence of the political parties as neither the procedure nor its result may be reviewed by law courts. This is basically due to the jurisprudence of the Constitutional Court regarding Article 3 of the 1867 Basic Law. This article provides for all citizens to have equal access to public functions. Nevertheless, the Constitutional Court denied applicants for a position within the civil service to have standing in the administrative procedure that eventually led to the appointment by an administrative decision. Applicants therefore have no legal remedy to their avail in cases where they feel that a less qualified person was appointed or a person was only appointed because of her or his party membership. The law on appointing civil servants therefore effectively allows governing parties to stabilise their influence. VI.  Foreign Affairs and European Membership

The ongoing process of ‘internationalisation’ or ‘globalisation’ and Austria’s accession to the European Union have further contributed to strengthening the power of the Federal Cabinet at the expense of 42   K Ucakar, ‘Sozialdemokratische Partei Österreichs’ in H Dachs et al (eds), Politik in Österreich (Wien, Manz, 2006) 322, 332; WC Müller, ‘Die Österreichische Volkspartei’ in H Dachs et al, Politik in Österreich 341, 347. 43  L Adamovich et al, Österreichisches Staatsrecht, Vol 4 (Wien, Springer, 2009) 112.

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parliament. As already mentioned, formally it is the Federal President who represents the republic externally and therefore may issue statements that are binding on the republic under international law and conclude international treaties. But as the Federal President may only act on the recommendation of the Federal Cabinet (and/or a Cabinet Minister) in substance, it is the Federal Cabinet that basically designs Austria’s external policy. A.  International Treaties Although international treaties are mainly concluded by the Federal President on the recommendation of the Federal Cabinet, the laws of the republic cannot be overridden without parliamentary consent. Parliament, therefore, has to participate in this law-making process at least at some stage. As Austria is a Federation, the states have to be incorporated in this process as well. With regard to the federal system and especially the division of legislative powers between the Federation and the states, it is remarkable that in Austria, it is first and foremost the Federation which has the power to conclude international treaties. In doing so it is not bound by the allocation of powers between the Federation and the states. Consequently, it may be necessary for states to take measures to implement an international treaty or the autonomous sphere of the states may otherwise be affected. In any such case the Federation must give the states the opportunity to express their views before the treaty is concluded. If the treaty resolves matters that fall within the autonomous sphere of the states, the approval of the Federal Council is also required. Nevertheless, it will be the Federal Cabinet that will monitor the measures taken by the states to implement an international treaty (Art 16 para 5 of the Federal Constitution). The Federal Cabinet and the responsible Federal Minister respectively are even entitled to give directions to the State Governor (Landeshauptmann) where applicable. Political treaties and treaties modifying or complementing existing laws ( gesetzesändernde or gesetzesergänzende Staatsverträge) and international treaties amending the fundamental treaties of the European Union may only be concluded with parliament’s approval (Art 50 of the Federal Constitution). Approval must be obtained before the conclusion (ratification) of the treaty. According to a definition initially established by the



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German Federal Constitutional Court and adopted by Austrian constitutional theory,44 political treaties are treaties that substantially and directly affect the existence of a state, its territorial integrity, its independence, its position among states, its political influence on other states or the order within the community of states. Treaties are to be considered to modify ( gesetzesändernde Staatsverträge) or complement ( gesetzesergänzende Staatsverträge) existing laws if according to domestic law their content would require a regulation by means of law. Under Austrian law, the content of a treaty would require regulation by means of law if there was no legal basis that was sufficiently clear and detailed in the sense of Article 18 of the Federal Constitution (compare chapter three). In particular the way the term ‘complementing existing law’ is read clearly reflects the image of the step pyramid. Basically, it has to be assessed in advance on which step a regulation contained in a treaty has to sit according to its subject matter. Until 2008, this task was even more complicated as it also had to be determined whether such a treaty might complement (or amend) simple laws, constitutional laws or – theoretically – even the principles of the constitution. Following this assessment, the specific proceedings in the National Council had to be followed. It was quite common to adopt an international treaty or even several provisions of an international treaty in the rank of constitutional law, thus adding to the difficulty of drawing up a comprehensive list of all constitutional provisions. The European Convention on Human Rights and its additional protocols, just to name an outstanding example, were adopted in the rank of constitutional law (and directly applicable). This has been changed by the 2008 amendment.45 According to this amendment, all newly concluded international treaties need ratification at the rank of simple federal law. International treaties amending the fundamental treaties of the European Union and international treaties that affect the borders of the Austrian Republic (Art 3 of the Federal Constitution) are to be ratified with a two-thirds majority in the National Council, with at least half of its members present. Treaties amending European Union law may also be subject to a referendum. If the National Council wishes the subject matter of an international treaty, to 44

 R Walter, H Mayer and G Kucsko-Stadlmayer, Grundriss des österreichischen Bundesverfassungsrechts, 10th edn (Wien, Manz, 2007) 115. 45   BGBl 2/2008.

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be ranked as constitutional law, it would have to enact a national constitutional law covering the precise subject matter. Although parliament participates in the proceedings to conclude and adopt international treaties, it seems obvious that it has no or only little influence on their substance as negotiations on the international level will be carried out by a Cabinet Minister or ministry officials. It is, in fact, hard to imagine that the majority in parliament would not support the ratification of a treaty once the responsible minister has given her or his consent. With regard to the European Constitutional Treaty and the Lisbon Treaty respectively, it became quite clear that parliament would not hinder ratification. Opponents to these treaties therefore tried to get them submitted to a referendum, claiming that they would constitute a further ‘total revision’ of the constitution46 – a strategy that finally did not succeed (as in this case it would have been up to the Federal Cabinet to issue a recommendation to the Federal President to order such a referendum). Nevertheless, it has to be noted that according to the 2008 amendment treaties reforming the fundamental treaties of the European Union enjoy a special position: Although they are not denominated as ‘constitutional laws’, their adoption needs the same quorum as a constitutional law. Apart from that, they may be submitted to a referendum: not only when they would represent a total revision of the constitution so that such a referendum would be compulsory anyway but also when the National Council deliberately would so decide. All political parties in Austria have so far vowed to submit a treaty to a referendum that would provide for the accession of Turkey to the European Union. With the defensive wars against the Muslim Turks in the sixteenth and seventeenth centuries still present in the collective memory of the Austrian population, the result of such a referendum would be highly uncertain. B.  Bodies of International Organisations Adding further to the strengthening of the power of the executive branch of government at the expense of the legislative branch are those bodies of international organisations that have increasingly been allo46   A Schramm, ‘Gesamtänderung der Bundesverfassung durch die EU-Verfassung?’ (2006) Zeitschrift für Öffentliches Recht 41.



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cated the power to issue general or individual legal acts that are binding on their Member States and in some cases even on their citizens.47 Should members of these bodies represent Austria, they would come out of the executive branch of government and/or the administration. Initially, Austrian constitutional law made no reference to decisions or acts of organs of international organisations as a source of (domestic) law. It was, therefore, necessary to incorporate constitutional provisions into all international treaties relating to Austria’s accession to such an international organisation.48 Only a 1981 amendment to the Federal Constitution introduced a general constitutional basis entitling the Republic of Austria to transfer specific (single) powers to intergovernmental organisations and – in its currently applicable version – also to their authorities, as well as to other states. Surprisingly, the constitution also explicitly provides for the transfer of (single) powers of foreign states or international organisations to Austrian authorities. C.  European Union According to its phrasing, Article 9 paragraph 2 of the Federal Constitution only allows the transfer of single federal or state powers. On Austria’s accession to the European Union, however, a whole set of legislative powers was conferred to the European Union rather than a single power. Article 9 paragraph 2 of the Federal Constitution could thus not provide a constitutional basis for Austria’s accession to the European Union, which therefore required a specific constitutional law. Furthermore, as the accession to the European Union was considered to represent a total revision of the constitution, it also required a referendum.49 Austria’s accession to the European Union has triggered another shift in power from the legislative branch of government to the executive branch. With the one major exception that the Austrian representatives in the European Parliament are elected by the Austrian people, it is mainly the Federal Cabinet that is in charge of participating in the lawmaking bodies of the European Union on behalf of Austria and that is 47

  W Graf Vitzthum, Völkerrecht, 4th edn (Berlin, De Gruyer Recht, 2007) 272ff.  R Walter, Österreichisches Bundesverfassungsrecht (Wien, Manz, 1972) 175f. 49  S Griller, ‘Verfassungsfragen der österreichischen EU-Mitgliedschaft’ (1995) Zeitschrift für Rechtsvergleichung, Internationales Recht und Europarecht 89; T Öhlinger, Verfassungsfragen einer Mitgliedschaft zur Europäischen Union (Wien, Springer, 1999) 145. 48

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also in charge of nominating the (Austrian) members to various European organs.50 In performing the latter responsibility, the Cabinet shall reach an agreement with the Main Standing Committee of the National Council regarding the nomination of the members of the Commission, the Court of Justice of the European Union, the Court of Auditors and of the Board of Direction of the European Investment Bank. As the constitution does not explicitly provide for a hearing of possible candidates at the Main Standing Committee and the various governments so far have denied such a hearing, the Committee actually has only little influence on the final decision as the government will always have a majority in the Main Standing Committee where parties are represented proportionally. The influence of the social partners is guaranteed as the Federal Cabinet is bound to ask for their proposals when nominating members of the Economic and Social Committee; the nomination of members to the Committee of Regions and their deputies shall be effected on the basis of proposals from the states, as well as the Austrian Association of Cities and Towns and the Austrian Association of Municipalities. But nevertheless, it is the Federal Cabinet that decides. VII. The Federal Budget

Although the federal budget has to be approved by the National Council it falls explicitly under the responsibility of the Federal Cabinet to present the draft version of the Federal Finance Act (Bundesfinanzgesetz ) to the National Council. The Federal Finance Act contains estimates of the revenue and the outlays of the Federation for the upcoming fiscal year (and possibly also the following year). The Federal Cabinet is obliged to submit such a draft version for each subsequent fiscal year at least 10 weeks before the expiry of the current fiscal year (which happens to coincide with the calendar year). If the Federal Cabinet fails to submit a draft on time, a draft may be introduced following a motion of National Council members. It is debatable whether members of the National Council would have the skills and expertise to their avail to compose the federal budget. In reality, however, such a motion was 50

  cf Art 23c para 1 of the Federal Constitution.



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never put forward. Had a coalition government failed to agree on the federal budget on time, in most cases it would have eventually broke up. As a consequence, the National Council would have been dissolved and, subsequently, general elections would have been held. In such a case or when general elections were held after the summer months it was quite likely that the National Council had not adopted a federal budget for the upcoming year on time. To avoid a complete standstill of the administration, the constitution provides for revenues to be raised according to existing (tax) laws and outlays to be made on the basis of the previous Federal Finance Act. Outlays are not supposed to exceed the levels of the previous Act. One of the main problems with the law on the federal budget was seen in the need to compose the federal budget on a strictly annual basis and no legal certainty could be provided for any long-term spending or investing programmes. Administrations could never be sure which amount of money they would be allocated the following year. The 2008 amendment of the constitution represented the first step towards a more substantial reform of the law on the federal budget. This change at least partly addressed the problem by introducing a two-step procedure.51 According to that procedure, the Federal Cabinet is not only obliged to present a draft Federal Finance Act but, in advance, also a Federal Finance Framework Act (Bundesfinanzrahmengesetz ). By 30 April of each year, the Federal Cabinet has to draft the Federal Finance Framework Act to cover the subsequent four financial years and present it to the National Council. The Finance Framework Act limits the allocation of funds for the entire administration. It is binding on the Federal Cabinet when it drafts the subsequent Federal Finance Act. Once the National Council approves the Finance Framework Act (the Federal Council plays no part in that procedure), the following Federal Finance Act may not exceed the limits except under specific circumstances. As the Finance Framework Act may be altered year by year, it ensures planning the federal budgets over a period of four years only on a rolling basis. Besides, the Federal Finance Framework Act offers a comprehensive and easily accessible overview to the economic powers of the state. Thus, the relevant figures may also be seen as a part of the efficient 51

23.

 G Steger, ‘Die Haushaltsrechtsreform des Bundes’ (2009) Journal für Rechtspolitik

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constitution as the economic power effectively limits political power. Therefore it might be interesting that the ordinary federal budget amounts to approximately €70,000 million from which almost half is spent on the social welfare system. An additional budget manages the financial debts and has risen to almost €100,000 million. Anyhow, a comparison with the private sector shows the economic force of a small country: the balance sheet total of the two biggest Austrian banks amounts to €200,000 million each, notwithstanding the economic powers of so-called ‘global market players’. Even if theories on sovereignty may suggest differently, the political room to manoeuvre for a small country like Austria is effectively limited by its financial power. The principle of a strict annual framework triggers another problem that has only been partly addressed so far by constitutional amendments. The crucial point is that expenditures that have not been made in the year they were foreseen lapse on expiry of the fiscal year. It used to be common administrative practice to spend all leftover money before the expiry of the fiscal year, irrespective of whether it made sense. Administrations that did not act in this way not only lost the money, but also faced the political consequence that the level of expenditure allocated to them in subsequent Federal Finance Acts was reduced on the grounds that they had proven not to need that much money. Only recently were federal constitutional provisions introduced in the Federal Budget Act52 to allow administrations to manage their spending policy more effectively under certain circumstances. Apart from that, the legislator envisages solving this problem on a more general basis with the second step of a substantial reform of the federal budget law. This step aims to abolish the traditional cameralistic accounting techniques introducing methods on a double entry basis with the International Public Sector Accounting Standards serving as a model. As details still have to be elaborated it remains to be seen how the problem of wasting public money will be solved.53 According to Article 13 of the Federal Constitution, the federal budget must aim to secure a macroeconomic equilibrium; that is balanced economic growth, price stability, a highly competitive social market economy, full employment and social progress as well as a high level 52

  Arts 17a–f of the Federal Budget Act.  G Steger, ‘Die Haushaltsrechtsreform des Bundes’ (2009) Journal für Rechtspolitik

53

23.



E-Government  141

of protection and improvement of the quality of the environment. Article 13 paragraph 3 of the Federal Constitution stipulates that the federal budget must aim for effective equality of women and men (gender budgeting). This principle will only come into effect in 2013, when a new accounting technique will have been introduced. Furthermore, the federal budget must aim to secure sustainable budgetary practice (Art 13 para 2 of the Federal Constitution). Federation, states and municipalities have to coordinate their budgets to implement these aims. By introducing the principle of secure sustainable budgetary practice by means of the 2008 constitutional amendment, the Austrian constitution has incorporated the requirements imposed by European law. The principle of secure sustainable budgetary practice is to be defined by the convergence criteria of the Maastricht Treaty. According to Article 126 of the Treaty on the Functioning of the European Union (TFEU) Member States should avoid excessive government deficits. Reference criteria are applicable that consider government deficit and government debts in relation to GDP (Austria’s GDP would currently amount to approximately €280,000 million). The reference values were established in TFEU Protocol number 12 and constitute a maximum of three per cent of GDP for the net deficit and a maximum of 60 per cent for government debt. As the Maastricht criteria apply not to the federal budget only but to the total budget of the republic, state budgets must be included in the account. Until 2008, the domestic law on budgets was simply overridden by these European criteria. The European Commission is continuing to monitor the development of Austria’s budgetary situation. Thus, the Maastricht criteria effectively curtail domestic policies on the budget. Austria had to partly ignore these criteria to manage the economic crisis ensuing from the 2008 credit crunch. VIII. E-Government

The Austrian government has effectively introduced and promoted the use of digital information technologies in various fields of administration. The websites of Austrian ministries provide a lot of information and sometimes also legal advice. As part of the process forms may be downloaded, applications may be filed electronically and especially tax declarations may be submitted online. In some cases administrative acts are distributed by electronic services. All these innovations were made

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possible by amending simple laws. Only in the one case in which Austria became a forerunner, namely, the publication of federal laws, an amendment to the constitution was needed. It was always the responsibility of the Federal Chancellor to publish federal laws. Until 31 December 2003, this was done by producing a printed version of the Federal Law Gazette (Bundesgesetzblatt). Nevertheless, the Federal Chancellery started to publish the law also on its website. But this was only a service of the Federal Chancellery: the publication in the printed version of the Federal Law Gazette remained the only authentic one. That changed according to the 2004 amendment of the constitution and the Federal Law Gazette Act. As of 1 January 2004, authentic publication of federal laws (and other legal provisions) is exclusively online.54 They are accessible under the address www.ris.bka.gv.at and they might be accessed from any part of the world. It is crucial to know that only one of four versions provided is authentic. When its symbol is selected, a security check is performed and if it is successful a safety certificate appears stating that the text has been electronically signed by a public servant to the Federal Chancellery and that the sequence of certificates can be traced back to a root certificate. In the traditional system of publication the law entered into force at the end of the day when the relevant issue of the Federal Law Gazette was edited and delivered (unless the law provided otherwise). As there is no such delivery within the online publication system, the law becomes legally binding at the end of the first day when access to it is granted. The electronically published documents must be accessible to the public and obtainable in the authentic version on a complete and permanent basis. ‘Permanently’, by interpretation, does not mean ‘at any given time’: it is admissible for access to be temporarily denied due to maintenance work or software upgrade. If access is denied for a longer period, laws must be published in the traditional manner. But, it is not clear how this is to be done. The traditional system was based on subscribers to the printed copies of the Federal Law Gazette. But there are no subscribers under the current system. But ‘permanently’, of course, means that access has to be guaranteed for all the years to come. How this constitutional prerequisite can be 54  M Stelzer, ‘The Online Law Gazette in Austria’ in S Flogaitis, U Karpen and A Masucci, E-Government and E-Democracy (London, Esperia Publication, 2006) 283.



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met by the Austrian government is still hard to see. The online publication of federal law is based on the assumption that the World Wide Web as we know it will basically exist forever. But as the Austrian government has no influence on this issue, the validity of all federal laws published after 1 January 2004 depends on technical and political developments Austria cannot control. According to the rather strict jurisprudence of the Constitutional Court regarding the publication of laws, a severe interception of the accessibility of the authentic versions of the text would probably mean that all laws affected would have to be passed by parliament again. The chaos that would emerge from such a situation is almost impossible to imagine. However, the Constitutional Court has not addressed these problems, at least so far. From the perspective of this chapter that deals with the increase of power of the Federal Cabinet another aspect may even be more important. It is in the hands of the Federal Chancellor to uphold Austria’s legal system as far as laws are concerned that have been published since January 2004. Technically speaking, it would be fairly easy to abolish all these laws or only specific laws by denying permanent access. Although it cannot be said that there is an imminent danger that a Federal Chancellor might misuse this power, there can be no doubt that the new system has effectively furnished the Federal Chancellor with a power previously unheard of. IX. Nationalised Industry

Although it is now history, the responsibility to administer nationalised industries contributed decisively to the power of the Federal Cabinet and, moreover, to the power of political parties. While mail and railway services were already nationalised under the monarchy, huge programmes to nationalise large parts of the industry, especially in the steel producing sector, were only implemented after WWII. This was done basically for two reasons: first, the private sector was not strong enough financially to rebuild Austria’s infrastructure and industry after the war. Nationalisation was seen as a means to direct money from the European Recovery Programme to rebuild Austria’s main industry. Second, and allegedly on the advice of the Americans, it was also considered to be a means to prevent the Soviets from seizing assets that were held to be ‘German Property’.

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However, in 1946 a first Nationalisation Act55 was passed nationalising important banks as well as the steel, chemical and petrol producing industry. In 1947 a second Nationalisation Act56 followed pertaining to electric power producing companies. Until 1967 the Federal Chancellor and/or various Federal Ministers directly represented the republic in its position as the owner of all these companies. In 1967 a trust company was founded to administer the republic’s interest as owner of various parts of the nationalised industry. Initially a company with licensed liability (‘Österreichische Industrieverwaltungs Gesmb’ ) it was transformed into a stock company in 1970 and renamed Austrian Industry Holding plc (‘Österreichische Industrieholdung AG’ ) in 1986. These companies again were controlled by various Federal Ministers. Whatever the legal framework was, a large political influence on appointing the management could not be denied. Thus, the political parties, namely the People’s Party and the Social Democrats, controlled vast fields of the industry in addition to the administrative sector where they could hand out jobs and management careers. Until the 1970s, the profits of nationalised industry could be used to additionally fund the public budget. In the 1970s, nationalised industry served as an instrument to battle unemployment rates which was initially successful but contributed to structural problems that became visible in the 1980s when nationalised industry had to be generously funded with taxpayers money. As a consequence, a privatisation process was initiated and parts of the industry were sold. This process was further intensified after Austria’s accession to the European Union. Within the fields governed by EU laws, such as the postal and telecommunication services, the electricity, broadcasting and railway industries, Austria has implemented the legal framework provided by the relevant EU directives.57 This triggered the need to establish a new type of independent authorities – the regulators which have to promote the transition from former government monopolies to open markets. As already mentioned above, initially there was no general constitutional basis that allowed the establishment of regulators. Only the 2008 amendment of the constitution58 changed this situation. Regulators may 55

  Verstaatlichungsgesetz BGBl 1946/168.   2. Verstaatlichungsgesetz BGBl 1947/81. 57   cf L Adamovich et al, Österreichisches Staatsrecht, Vol 4 (Wien, Springer, 2009) 296–304. 58   BGBl 2/2008. 56



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be supervised by the Federal Cabinet (and the responsible Federal Minister respectively) and their heads may be summoned by the responsible committee of the National Council and be questioned on all the regulative administrative business. To a certain extent therefore, the Federal Cabinet (and thus the political parties) still remain in control of these markets. Other parts of the industry, like the nationalised banks, were simply sold. A 2000 law explicitly asked the Austrian Industry Holding plc to privatise the remaining parts. This has not been concluded yet. The demise of the nationalised industry and the ensuing privatisation process which was carried out against the stiff opposition of (mostly) Social Democrats and the Trade Unions effectively robbed the political system of vast spheres of influence. It is therefore no coincidence that this development went hand in hand with severe changes in the Austrian political system.59 X. Conclusion

The highest executive authorities of the Federation are the Federal President, and the Federal Cabinet. In reality, the Federal Cabinet is the most powerful organ of the republic. Depending on the domestic political situation the Federal President may, at least marginally, influence the formation of the Federal Cabinet. Otherwise the exercise of her or his powers largely depends on recommendations formally issued by the Federal Cabinet. The Federal Ministers direct the whole Federal administration and decisively influence the substance of the laws enacted by parliament. The more these laws are based on or overridden by international treaties, the more the power of the executive branch of government is strengthened. This is especially true with the laws of the European Union. As the Federal Cabinet is normally composed of the leaders and most influential members of the governing parties, they also may ensure the influence of the political parties in all their fields of responsibility. Within the civil service and the former nationalised industry party membership and/or party affiliation was and is more often than not decisive for obtaining a well paid job. Only the demise of the nationalised industry has effectively curtailed the influence of political 59

 See chapter two, section II.

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parties and it is therefore no coincidence that it came hand in hand with substantial changes in the party system. Further Reading Adamovich, L et al, Österreichisches Staatsrecht, Vol 4 (Wien-New York, Springer, 2009). Fink, M and Tálos, E, ‘The Welfare State in Austria’ in Vivekanandan, B and Kurian, H (eds), Welfare States and the Future (New York, Hampshire, 2005) 131−50. Holzinger, G, ‘Die Organisation der Verwaltung’ in Holzinger, G, Oberndorfer, P and Raschauer, B (eds), Österreichische Verwaltungslehre, 2nd edn (Wien, Verlag Österreich, 2006) 107. Lederer, G, ‘Young Austrians and the Election of Kurt Waldheim’ (1988) 4 Political Psychology, 633–47. Lindermuth, P, ‘Das Recht der Staatsverträge nach der Verfassungsbereinigung’ (2009) 64 Zeitschrift für öffentliches Recht 299. Steger, G, ‘Die Haushaltsreform des Bundes’ (2009) 17 Journal für Rechtspolitik 23. Tóth, B and Czernin, H (eds), 1986: Das Jahr, das Österreich Veränderte (Wien, Czernin, 2006). Welan, M, ‘Der Bundespräsident im System der österreichischen Bundesverfassung’ in Schefbeck, S, 75 Jahre Bundesverfassung (Wien, Verlag Österreich, 1995) 483. ——, ‘Regierungsbildung und B-VG’ in Hammer, S, Somek, A, Stelzer, M and Weichselbaum, B (eds), Demokratie und sozialer Rechtsstaat in Europa (Wien, WUV, 2004) 434. Wimmer, N and Kahl, A, Die öffentlichen Unternehmen im freien Markt (Wien, Manz, 2001). Wodak, R et al, Wir sind alle unschuldige Täter (Frankfurt am Main, Suhrkamp, 1990).

5 Federalism and Autonomous Public Bodies

O

Introduction – History and Concept of Austrian Federalism – Allocation of Powers (Competences) – State Legislation – Indirect Federal Administration and the Role of State Governor – Municipal Government and Autonomous Public Bodies – Conclusion I. Introduction

I

n general, this chapter deals with two concepts of the socalled vertical divide of powers. In its first part it introduces Austria as a federal state. It will discuss the historical and theoretical background and outline the main features of the federal structure. It will be shown that the Federation holds most of the powers and that the Federal Constitution provides a framework for the state constitution to an extent that it initially was assumed that state constitutions merely had to implement that framework. However, it will be demonstrated how this attitude has changed from the 1980s onwards. Further, the chapter will discuss the core element of Austria’s federalism: the allocation of powers between the Federation and the states. It will show how these provisions are read by the Constitutional Court and therefore illustrate the application of the so-called petrification doctrine. Later in this chapter, institutions and procedures of the state legislation will be introduced and the external power of the states will be discussed as well as the co-operation between the Federation and the states and the possible participation of the states in EU legislation. In its last part, the chapter will briefly refer to the Austrian concept of the so-called ‘self-administration’ which may also be seen as an element of dividing powers vertically.

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II. History and Concept of Austrian Federalism

According to Article 2 of the Federal Constitution, Austria is a federal state. The roots of Austrian federalism can be found in the monarchy, although the monarchy was a unitary state. However, as already mentioned, the monarchy consisted of various kingdoms, arch-dukedoms, dukedoms and principalities united under the reign of the Hapsburgs, most of them having their own cultural traditions and ethnical background.1 The 1848 Draft Constitution, therefore, acknowledged the peculiarity of each ‘dominion of the Crown’ (as they were called) and provided for each province to elect a Diet2 (Landtag), which should share legislative powers with the monarch in some (small) areas pertaining to local issues. This concept, which did not become effective in 1848, was later implemented in 1860/61 and 1867 respectively. While the Imperial Council (Reichsrat) shared legislation with the monarch with regard to issues concerning the whole State, the Diets still had to give their consent to laws on local issues. The 1867 Constitution, therefore, already contained provisions that allocated powers to the Imperial Council and to the Diets. The ‘dominions of the Crown’, thus, enjoyed some autonomy within the monarchy that was therefore characterised as a ‘decentralised unitary state’. Sovereignty, of course, was only vested in the monarch. After the breakdown of the monarchy, members of the former Imperial Council met in Vienna and promoted the formation of the German-Austrian Republic, which was meant to be a unitary state.3 At about the same time in 1918, however, members of the former Diets also convened, claiming sovereignty over their territories and emphasising that the Austrian Republic could only be erected as a federal state. As these claims and demands were strongly supported by the Conservatives, but even so strongly rejected by the Social Democrats, a compromise had to be made. Austria became a federal state with most 1  RA Kann, The History of the Habsburg Empire 1526–1918 (Berkeley, University of California Press, 1974) 521ff. 2  The term ‘Diet’ is used when referring to the ‘Landtag’ at the time of the monarchy, while the term ‘State Parliament’ is used to refer to the ‘Landtag’ under the republican constitution. 3   cf chapter one.



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of the powers vesting in the Federation and leaving little for the states. Sometimes, state powers were seen to be so limited that it could be questioned if Austria was a federal state at all.4 However, besides a legal comparison of federal systems demonstrating that every federal state should be defined on its own terms, an analysis of the efficient constitution reveals that the states are not that powerless. Even if the Federation is much more powerful than the states, the federal system divides state power vertically and, by doing so, has a power limiting effect: the majority in the National Council does not have the power to pass all ‘simple’ laws in Austria but only those resting within the competences of the Federation.5 However, not only federal authorities decide on the allocation of all the money raised by taxation. The states administer a budget – although allocated by a federal law – of about half the size of the federal budget in total; that is about €35,000 million. Vienna (a municipality and a state) has the largest budget of about €10,000 million to spend, while the smallest states (Vorarlberg and Burgenland) administer a budget of approximately €1,000 million. The power limiting effect by vertically dividing state functions – legislative, executive and juridical – may be reached by different concepts, thus also by the idea of devolving powers to regional bodies. From a theoretical point of view, it would be assumed that the main difference between devolution and Federation lies in the possibility to revoke devolved powers. In a federal system, on the other hand, both entities – the Federation and the states – exercise sovereign powers in their own right. Although this might be difficult to explain with regards to Bodin’s theory of sovereignty (Althusius might have found a way out)6 the main point of a federal system is that both parts enjoy original state powers.7 Theoretical questions aside, it may be argued that this concept is strongly reflected in Austria’s history: in 1918 representatives of the republic (later: the Federation) claimed sovereign rights over the whole territory, 4  Typically enough, Jan Erk calls his study on Austrian Federalism ‘A Federation Without Federalism’: J Erk, ‘Austria: A Federation Without Federalism’ (2004) 34 Publius: The Journal of Federalism 1. 5   cf B Ackerman, ‘The New Separation of Powers’ (2000) 3 Harvard Law Review 633. 6  cf M Stelzer, ‘Die (vertikale) Kompetenzverteilung’ in DT Tsatsos, Die Unionsgrundordnung – Handbuch zur Europäischen Verfassung (Berlin, Berliner Wissenschaftsverlag, 2010) 385. 7  E Wiederin, Bundesrecht und Landesrecht (Wien, Springer, 1995) 2ff; P Pernthaler, Die Identität Tirols in Europa (Wien, Springer, 2007) 27.

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while representatives of the states claimed sovereign powers over the states’ territories. Nevertheless, it may be discussed if the Austrian constitution misses exactly this point.8 Almost all constitutional lawyers would hold that federalism in Austria could be abolished by a ‘total revision’ of the constitution, thus by a nationwide referendum.9 As there are no rules enshrined in the Austrian constitution demanding a majority of votes in each single state in such a case,10 it might happen that a state loses its ‘sovereign’ powers against the will of its organs and its people. Therefore, it might be questioned whether the constitution really respects the sovereignty of the states. Some Austrian scholars, however, follow a theory established by Hans Kelsen, which distinguishes not only between federal law and state law but introduces a third sphere of law called the ‘joint constitution’. (Accordingly, this theory, which aims to ‘explain’ federal systems, is called the ‘three-sphere-theory’ – ‘Drei-Kreise-Theorie’).11 This ‘joint constitution’, which in reality is a part of the federal constitution, comprises regulations providing for both sides – the Federation as well as the states. It may consist of regulations establishing ‘joint institutions’ such as the Constitutional Court, the Administrative Court and the Public     8   From a more pragmatic point of view categorical differences between ‘devolution’ and ‘federalism’ may disappear – see, for instance, P Leyland, The Constitution of the United Kingdom (Oxford-Portland, Oregon, Hart Publishing, 2007) 186, who speaks of ‘devolved forms of government’ in a more formal way. But as the Austrian discussion will show, the theoretical implication that in a federal state genuine sovereign powers are exercised both on the federal and the state level, has some bearing on the way the constitution may be interpreted. (This will be discussed below).     9  R Walter, H Mayer and G Kucsko-Stadlmayer, Bundesverfassungsrecht, 10th edn (Wien, Manz, 2007) 87; Wiederin, Bundesrecht und Landesrecht, n 7, 35; expressing the opposite opinion: Pernthaler, Die Identität Tirols in Europa, n 7, 29. 10  It may be questioned if the 2008 amendment of the constitution (BGBl I 2008/2) has altered this situation in favour of the states by providing that ‘changes in the composition’ of the states require an amendment of the state’s constitution (see Art 2 para 3 of the Federal Constitution). But it remains unclear how this provision relates to the abolishment of the whole federal system by a ‘total revision’ of the constitution. From the point of view of the step pyramid doctrine it would only be conclusive to argue that the newly introduced provision is a part of the federal system and, therefore, could be repealed by a ‘total revision’ sharing the same fate as all the other provisions constituting the federal system. Consequently, this new provision could only be effective within the federal system but not prevent the federal system from being abolished by means of a ‘total revision’. 11  H Kelsen, Allgemeine Staatslehre (Wien, Springer, 1925) 198ff.



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Audit Office and, at its core, the regulations pertaining to the allocation of powers between the Federation and the states. From this point of view, both – federal powers and state powers – seem to be devolved by the ‘joint constitution’. Thus, the concept of federalism is almost brought into line with the concept of a decentralised unitary state and the concept of devolution respectively. Regardless of whether Kelsen’s theory provides for a conclusive concept of a federal state, it perfectly reveals the structure of the Austrian federal system. Although the Federation is much stronger than the states, from a legal perspective the constitution basically assumes equality between the Federation and the states, especially concerning the character of their statehood. The constitution does not include the principle that federal law automatically overrides state law as the German constitution does when stating: ‘Federal law takes precedence over state law’ (Art 31 of the German Basic Law). In Austria, any dispute concerning the allocation of competences must be settled by the Constitutional Court. (This concept, by the way, originally underpinned the introduction of judicial review in Austria). It was, therefore, up to the Constitutional Court to find ways of settling these conflicts. The fact that – in theory – in a federal state the Federation and the states both exercise original powers has consequences for regulations on territory, citizenship and the constitution. The external borders of the federal territory are established by international treaties, primarily by the Peace Treaty of Saint Germain and the State Treaty of Vienna. The borders between the states, unsurprisingly, date back to the borders of the provinces of the Hapsburg Monarchy. Changing these borders nowadays would entail changes to the federal territory as well as to a state territory. External borders may only be modified with the consent of the respective states. Internal borders may only be changed as a result of corresponding laws of the Federation and the states concerned. According to the 2008 amendment, the National Council’s decisions in such cases require a quorum of at least half of the members and a twothirds majority in favour. Until this amendment, a constitutional law and/or provision was required. In order to reduce the number of constitutional provisions, a simple law will suffice for the future but the quorums for constitutional laws will still be required. Apart from an amendment to the Federal Constitution, alterations concerning the substance of a state also require state constitutional laws (Art 2 para 3 of the Federal Constitution).

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The 1920 Constitution provided for Austrians primarily to be citizens of the states where they had their domicile. Citizenship depended on a right of domicile (Heimatrecht) in a municipality. After WWII this concept was abolished and a single Austrian citizenship was introduced, its terms of achievement and loss provided for by a federal law. States were thus left without a people. Some states claimed that such a regulation violated the federal principle of the constitution as a sovereign state which had to have citizens (Staatsvolk). They had to find out that in the view of the Constitutional Court12 this argument was only of theoretical importance, but did not raise a constitutional question. With a 1994 amendment, however, the citizenship of the states was reintroduced. Nowadays, nationals are citizens of the state where they have their principal domicile. Thus, reference can be made not only to the people of the Federal Republic of Austria but also to the people of the states. Admittedly, the introduction of a state citizenship primarily met theoretical (and psychological) demands rather than triggering specific legal consequences. The state powers have to be constituted both at the federal level and at the state level. Therefore, there is not only the Federal Constitution, but, in addition, there are nine state constitutions. Remarkably, the Federal Constitution contains a whole chapter in which it provides for the legislative and executive branch of government in the states in a very detailed way. Regulations pertain to the electoral system, the legislative process, the highest organs of the states – the State Cabinets and the State Governor (Landeshauptmann) – and it prevents states from establishing law courts. Other constitutional laws prescribe the basic structure of the administration in the states or explicitly allow the introduction of a departmental system. State constitutions may only be amended or enacted in as much as the Federal Constitution is thereby not affected. In the light of this legal situation, for a long time it was assumed that states only had to implement those parts of the Federal Constitution which provided more or less precisely for state constitutions, leaving little or no leeway. This view clearly jeopardised the idea of the states being sovereign entities and, therefore, the concept of a federal state. In the late 1970s things started to change,13 underpinned by an increasing 12

  VfSlg 2455/1952.  F Koja, Das Verfassungsrecht der österreichischen Bundesländer, 2nd edn (Wien, Springer, 1988). 13



The Allocation of Powers (Competences)  153

self-confidence in the states. Today, a ‘relative constitutional autonomy of the states’ is established, which means that the states, although they have to follow the concept of the Federal Constitution, may legislate freely in areas where the Federal Constitution is silent on the matter of state constitutions. Following this spirit, some state constitutions nowadays provide for civil rights or a welfare-state principle.14 Of course, such provisions can only bind the legislation and administration of the state. III. The Allocation of Powers (Competences)

A.  Function and Principles of the Allocation of Powers According to the Constitutional Court, the core element of the federal principle is the allocation of powers between the Federation and the states.15 In Austria, this is done in a very complicated way, being, therefore, sometimes subject to highly controversial interpretation. Disputes over competences have been more often than not genuine disputes between the political parties, in this case, the People’s Party and the Social Democrats, rather than disputes between the Federation and a state. Therefore, settling a dispute on competences often establishes not only which authority is competent, but also which political concept prevails. The Austrian constitution only allocates legislative and executive powers between the Federation and the states. However, ‘jurisdiction’ in a formal sense (cf chapter six) is generally assigned to the Federation. Therefore, there are no (formal) state courts. In a broader sense, states exercise judicial powers as the Independent Administration Tribunals are organised by the states and, above that, the states have the power to establish independent tribunals according to Article 133 no 4 of the Federal Constitution, which might fulfil the requirements of Article 6 ECHR. Should the 2010 governmental bill on the introduction of state administrative courts (Landesverwaltungsgerichte) be enacted, states would also, in a formal sense, exercise powers in the field of ‘jurisdiction’. 14

 P Häberle, ‘Textstufen in österreichischen Landesverfassungen – ein Vergleich’ in P Häberle (ed), Jahrbuch des öffentlichen Rechts der Gegenwart (Tübingen, Mohr, 2006) which gives a comprehensive overview to the various ways Austrian states have used this constitutional power. 15   VfSlg 2455/1952.

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According to Article 17 of the Federal Constitution, the position of the Federation and the states as holders of civil rights are in no way affected by the allocation of powers. This provision contains a specific feature of the Austrian administrative and constitutional system. It constitutes the territorial corporate bodies – Federation and states – as full subjects to private law (Art 116 para 2 of the Federal Constitution provides the same for municipalities). The allocation of powers is, therefore, irrelevant when the Federation or the states act under private law. This provision has played an important part in Austria’s history. It was through this provision that it was possible for the Federation to run the nationalised industries after WWII notwithstanding the field in which the companies were operating. Moreover, this provision enabled Vienna to develop its huge public residential building programmes during the First Republic as all these activities – from a legal point of view – were performed within the field of private law. Ultimately, only competences concerning legislation or public administration (administration under the legal form of public law – Hoheitsverwaltung) are allocated between the Federation and the states. By amending the constitution, the federal parliament has the power to regulate the allocation of competences between the Federation and the states and thus has the so-called Kompetenz-Kompetenz. But there are also cases, especially under the Constitutional Finance Law (Finanzverfassung; F-VG), in which the federal parliament may exercise a ‘KompetenzKompetenz’ by means of ‘simple’ law. The Federal Constitution does not only assign specific fields of law, also known as ‘competence matters’, to the legislation or execution of either Federation or the states. It also distinguishes between a ‘general allocation of powers’ and the allocation of powers for special fields of law such as taxation laws, the school system and public procurement law. B.  The General Allocation of Powers Basically, the constitution distinguishes four general types of competence. Either both legislation and/or execution are the responsibility of the Federation (Art 10 of the Federal Constitution) or only the legislation is the responsibility of the Federation, while the execution of these laws falls under the responsibility of the states (Art 11 of the Federal



The Allocation of Powers (Competences)  155

Constitution). Further, the Federation might only be responsible for legislative principles, in which case the states are responsible for translating these principles into laws and executing them (Art 12 of the Federal Constitution). Matters which are allocated to these three types of competences are listed by the relevant articles of the Federal Constitution. The list of the areas of powers assigned to the Federation is exhaustive. Article 15 of the Federal Constitution specifies that all competences that are not allocated to the Federation remain within the autonomous sphere of competence of the states, thus forming the fourth type of competence. This provision is a general clause in favour of the states and seems to favour state power. But the truth is that so many powers are assigned to the Federation that very little power remains with the states. The most important powers are listed in Article 10 of the Federal Constitution which includes areas such as external affairs (äußere Angelegenheiten), nearly all the security issues (Aufrechterhaltung der öffentlichen Ruhe Ordnung und Sicherheit), areas pertaining to trade and industry (Angelegenheiten des Gewerbes und der Industrie), the railway system (Verkehrswesen bezüglich der Eisenbahnen), aviation (Verkehrswesen bezüglich der Luftfahrt), forestry (Forstwesen) and the use of water resources (Wasserrecht), vast parts of labour legislation (Arbeitsrecht ), social insurance and public health matters (Sozial und Vertragsversicherungswesen; Gesundheitswesen), military affairs (militärische Angelegenheiten) and many more. From the law enforcing perspective it seems to be decisive that not only the army is organised on a federal level, but also almost all of the police forces. With the small exception of some municipalities maintaining local forces with very little power, all armed forces in Austria are federal forces. Notwithstanding the powers vested in the Federation right from the beginning, increasing powers have been assigned to the Federation throughout the course of history.16 The only limit may be provided by the constitutional principle that Austria is a federal state. In this context, Austrian constitutional theory has already spoken of a gradual, ‘creeping’ total revision of the Federal Constitution (see chapter one), but so far to no effect. 16

  W Schroeder and K Weber, Die Kompetenzrechtsreform (Wien, Braumüller, 2006) 17; J Werndl, Die Kompetenzverteilung zwischen Bund und Ländern (Wien, Braumüller, 1984).

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In areas where the Federation is responsible for legislative principles only, the states are obliged to pass detailed laws within the framework laid down by the federal legislation. Should a state fail to do so, the power would revert to the Federation. Until the Federation establishes any principles, states are free to legislate. At first sight, this type of competence seems to be specially tailored to the federal structure of the state: it would allow the setting out of principles addressing the general ideas and demands of the Federation. The states, on the other hand, might respect regional peculiarities. In practice, there was rarely a need for states to take account of local factors – in many cases they only copied the federal law on principles.17 This was possible according to a ruling of the Constitutional Court arguing that laws on principles did not have to be ‘sufficiently clear and detailed’ in the sense of Article 18 of the Federal Constitution. On the other hand, the Court argued, they only had to leave some space for the states to legislate but could otherwise fulfil the requirements of Article 18.18 Therefore it was possible for the states to be content with just copying the federal law in cases where it was ‘sufficiently clear and detailed’, thus confirming that the need to respect regional differences was not that overwhelming. On a more general level it even may be observed that the federal structure of the Austrian state meets emotional and psychological demands rather than cultural and regional peculiarities and the need for different legal regulations. These emotions stem from the tension between the capital Vienna, with its more than two million inhabitants, and the other, more rural parts of the country. This tension was already felt during the monarchy, when Vienna gave residence to the monarch attracting the nobility and rich entrepreneurs in contrast with the rural surroundings. Nowadays, it might be argued that Austrian federalism satisfies an emotional need; namely, that the country should not be entirely dominated by institutions based in Vienna. Even though Article 15 of the Federal Constitution contains a general clause in favour of the states, the areas in which the states are competent are rather minor. For example, legislation relating to building, hunting and municipal law is the sole responsibility of the states. Within 17

 H Schäffer, ‘Die Kompetenzverteilung im Bundesstaat’ in H Schambeck (ed), Bundesstaat und Bundesrat in Österreich (Wien, Verlag Österreich, 1997) 65. 18   VfSlg 14322/1995, 15279/1998.



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the fields for which they are responsible, states have the power to adopt the necessary provisions also in the fields of criminal and civil law. The allocation of the various areas of powers is understood to be exclusive. This means that an area is exclusively and unambiguously assigned to the competence either of the Federation or of the states.19 According to Austrian constitutional law, it is unimaginable that both Federation and states are competent in a specific area. Some federal states (such as Germany) and also the European Union have introduced so-called concurrent legislative powers. This means that in a specific area both the Federation and the states may pass regulations (in the case of the European Union: the Union and the Member States), with the precise body responsible depending largely on the perceived importance of the issue to the common wealth. This gives room for the application of the principle of subsidiarity, which is based on the idea that the smaller entity should provide for regulations unless the issue’s importance, profitability or efficiency (or a similar reason) demands regulation at a higher level.20 The Austrian system of allocation of powers between the Federation and the states is basically alien to the principle of subsidiarity. Similar ideas occur only in very few cases regarding the ‘legislation on demand’ (Bedarfsgesetzgebung). Regulations pertaining to administrative procedure, to general provisions of administrative penal law and to administrative penal procedures may be issued by the Federation, even in matters pertaining to the states to the extent that a need for uniform regulations is perceived. Apart from these few exceptions, the Austrian constitution assigns areas to the respective spheres of legislation and executive competence in a rather inflexible and static manner. This system has not prevented the development of other areas of competence, which have had to be allocated partly to the Federation and partly to the states. Such areas are known as ‘shared areas’ (Querschnittsmaterien).21 These were not provided for by the constitution, but developed in response to theoretical or political demands. For example, it may be asked which territorial corporate body is competent in the 19   B Raschauer, Allgemeines Verwaltungsrecht, 3rd edn (Wien, Springer, 2009) 79f; Schroeder and Weber, Die Kompetenzrechtsreform, n 16, 9. 20   J Fairhurst, Law of the European Union, 7th edn (Harlow, Pearson, 2010) 158; M Horspool and M Humphreys, European Union Law, 4th edn (Oxford, Oxford University Press, 2006) 95ff. 21   W Berka, Verfassungsrecht, 3rd edn (Wien, Springer, 2010) 126.

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areas of environmental protection or regional planning. The constitution does not specify these areas of competence. As a result, one would assume that they fall under the responsibility of the states, but it has been argued that elements of environmental protection and regional planning are included in areas explicitly assigned to the Federation. Elements that do not belong to areas assigned to the Federation remain with the states. ‘Environmental protection’ is thus a shared area because parts of it fall within the competence of the Federation whereas other parts remain with the states.22 Other areas not explicitly mentioned in the Federal Constitution are assumed to be implied in areas explicitly attributed to the relevant territorial corporate body. This is true, for instance, for administrative procedural laws. As mentioned above, the Federation is empowered to issue uniform regulations within these fields provided that such regulations are needed. This implies that in other cases the competence to issue regulations lies with the legislator responsible for the area by virtue of the ‘adhesion’ principle.23 Although the constitution allocates responsibility for the various areas exclusively to the Federation or to the states, from the point of view of law enforcement authorities, several provisions may apply to a specific case. These may derive from different spheres of competence, as the Federal Constitution provides for abstract areas and does not settle specific cases. It may, thus, happen that provisions of both building law and industrial law are applicable to a particular case and that one provision is incompatible with the other. The matter can then only be settled by legal interpretation, which establishes the extent of the competence of each legislative body. The inflexibility and the static design of the allocation of powers were seen as a problem, especially when joining the European Union as European law demands its enforcement irrespective of the internal legal structures of the Members States.24 Therefore, a comprehensive structural reform of this part of the constitution was envisaged and – reflecting the work of the Constitutional Convention – a draft version was tabled that also included the idea of 22

  Walter et al, Bundesverfassungsrecht, n 9, 408.   Walter et al, Bundesverfassungsrecht, ibid, 151. 24  K Weber, ‘Möglichkeiten und Grenzen der Reform der bundesstaatlichen Kompetenzverteilung vor dem Hintergrund der Bemühungen um einen Vertrag über die europäische Verfassung’ in M Akyürek et al, Staat und Recht in Europäischer Perspektive, Festschrift Heinz Schäffer (Wien, Manz, 2006) 923, 934ff. 23



The Allocation of Powers (Competences)  159

concurrent legislative powers. At one point, it seemed very likely that such a comprehensive reform could be passed by Parliament following the 2008 amendments. In the end, the plans were dropped again. C.  ‘Special’ Allocation of Powers – the Finance Constitution Apart from allocating competences in general, the constitution provides for special regulations pertaining to particular fields of law. There are special regulations governing the school system, public procurement law and taxation law. The last is fundamental for a federal system, as it establishes which territorial corporate body is primarily responsible for taking decisions about taxes. In Austria, the Federation does not only receive the largest share of tax revenues, based on the Constitutional Finance Law, it also decides what proportion it receives and the amount of money being allocated to the other territorial corporate bodies. The assignment of this competence to the Federation is somehow consistent with the allocation of powers in general favouring the Federation, and indicates the overwhelming importance of the Federation in the Austrian federal system. The Constitutional Finance Law (F-VG, BGBl 45/1948 in the current version) provides for different types of taxes, according to which the competence of legislation and execution is allocated. The federal parliament has to assign each tax (for example, the income tax) to a specific type and thus decides who is responsible for legislation and execution (the Federation is in charge of the so-called Kompetenz-Kompetenz). The federal law in which the allocation is performed is known as the Fiscal Equalisation Act (Finanzausgleichsgesetz), which is renewed periodically. Before the act can be passed, the Federation must try to reach an agreement with the states and is loosely bound to these agreements when passing the law.25 The strong position of the Federation as outlined above may nevertheless have a political adverse effect. As it is the Federation which is responsible for enacting most tax laws, in the eyes of the electorate it is also held politically responsible for every tax rise. The states, on the other hand, which receive most of their financial resources on the basis of the Fiscal Equalisation Act, may spend money without being held 25

  VfSlg 12784/1991.

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responsible for raising it. This is one of the political reasons why a substantial reform of the Austrian administrative system which mainly would affect the bureaucracies in the states can easily be blocked by them. D.  Interpretation of Regulations Regarding Competences As already mentioned in chapter one, especially in interpreting regulations regarding competences, Austrian constitutional lawyers developed a ‘method’ of great importance for Austrian constitutional law that has sometimes been addressed as a general method for interpreting the constitution.26 It is based on the idea that the meaning of constitutional terms may be ‘petrified’. Within comparative legal studies, it is sometimes referred to as the ‘infamous’ doctrine of petrification.27 According to the doctrine, a constitutional term must be understood in the light of the simple laws that were valid when the constitutional law introducing the term was enacted. Thus, the meaning of the constitutional term is ‘petrified’ in the light of ‘simple’ law. The allocation of powers between the Federation and the states was added to the Federal Constitution in 1925. Consequently, the terms describing the various ‘competence matters’ are ‘petrified’ in the light of the legal situation in 1925.28 This doctrine is best explained by means of an example. In 1994 the federal parliament wanted to extend the requirement for industrial permission for sawmills to cover those administered by farmers in addition to their agricultural or – more likely in this case – forestry business (sideline). It could only have done so if the federal competence for industrial matters covered the issue. To establish whether this was the case, the competence had to be interpreted in the light of simple laws that were in existence on 1 October 1925 relating to ‘industrial matters’. On 1 October 1925, the 1859 Industrial Code still governed the matters in question. The preamble to this code stated explicitly that the code did not apply to any sideline to an agricultural business. Thus in 1925 the area of competence ‘industrial matters’ did not imply the power to regu26

 H Schäffer, Verfassungsinterpretation in Österreich (Wien, Springer, 1971) 64f.  P Häberle, Die Wesengehaltsgarantie des Art. 19 Abs. 2 Grundgesetz (Heidelberg, C.F.Müller Juristischer Verlag, 1983) 360. 28  See also the analysis of petrification by G Taylor, Characterisation in Federations: Six Countries Compared (Berlin-Heidelberg, Springer, 2006) 98, 110. 27



The Allocation of Powers (Competences)  161

late such sidelines. As a result of the petrification doctrine, the federal parliament was not allowed to amend the Industrial Code in 1994 in the way it desired. The requirement of industrial permission for sawmills administered as sidelines to an agricultural business as foreseen by the 1994 amendment of the Industrial Code was, therefore, deemed to violate the constitution and was rescinded by the Constitutional Court.29 At first sight, it may seem to be more of a technical problem to establish which territorial corporate body – the Federation or the states – is competent to legislate on this issue. On second sight, however, a significant political issue is revealed. The exceptions made to the 1859 Industrial Code – for whatever reason they were established – nowadays privilege farmers when setting up a sideline. The decisive constitutional question would probably be whether such a privilege is (still) justified. As long as the states are responsible for regulating these issues, farmers can be confident that their privileges will remain untouched, as their influence on the legislation of the states will be strong enough. In particular states that are governed by a conservative majority will be very reluctant to jeopardise these privileges as the Farmers’ Federation, one of the (still) strong federations the People’s Party consists of, will prevent any such legislation (although other federations of the People’s Party are not in favour of these privileges – especially those who represent entrepreneurs, who would have to cope without these privileges). At the federal level, however, the influence of the farmers’ associations was obviously less significant as their privileges were curtailed. As a consequence of the court’s ruling, the farmers’ privileges remained untouched but the decisive question as to whether this could be justified was never asked. Nevertheless, Austrian constitutional lawyers would argue that this question should have been addressed at constitutional level (by transferring the powers from the states to the Federation) and not resolved by the Constitutional Court.30 Of course, the retrospective interpretation of the allocation of powers makes it difficult to address problems of which the former legislator was not or could not have been aware. But the idea behind this method 29

  VfSlg 14187/1995.  An excellent example for the typical Austrian way of drawing a line between legislative interpretation and calling for the legislator is provided by R Novak, ‘Die Problematik der Abgrenzung der Hoheitsverwaltung von der sogenannten Privatwirtschaftsverwaltung’ in F Ermacora et al (eds), Allgemeines Verwaltungsrecht – Festschrift Antoniolli (Wien, Orac, 1979) 61. 30

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of interpretation is that new problems should preferably be settled by a political compromise rather than by interpretation. It is not surprising that the provisions concerning competences were amended many times during the 50s and 60s of the last century as more and more competences were delegated to the Federation.31 This was also a consequence of the retrospective interpretation. However, the petrification doctrine has not always been applied as strictly as in the example above. An element was soon added to broaden the scope of the constitutional provision in question, but this in the end jeopardised the basic idea of the petrification doctrine. The element in question is the so-called ‘intra-systematic development’ (Intrasystematische Fortentwicklung) that allows the court to go beyond the borders of the legal setting of 1925 if the regulation to be introduced has similar aims or intents to those pursued by the former legislator. Again, a provision from the Industrial Code may serve as an example. According to this provision, the mayor is entitled to issue ordinances prohibiting vending machines that sell sweets or similar products from being placed near schools or bus stops used mainly by children. The intention behind this law was to keep children from wasting their pocket money. The constitutional question was whether the Federation was competent to enact such a legal provision. Again, in accordance with the petrification doctrine, the legal setting on 1 October 1925 was decisive for understanding the area of competence in industrial matters. As already stated, on 1 October 1925 the 1859 Industrial Code was the law relating to industrial matters. No provision relating to vending machines was to be found in this code. The petrification doctrine would thus render the provision in question unconstitutional were it not for the ‘intrasystematic development’. The industrial law in 1925 already contained a provision prohibiting the sale of alcoholic beverages to persons under the age of 18. The Constitutional Court held that this provision was underpinned by the idea of protecting minors. Thus, the idea of protecting minors fell within the scope of industrial matters and was within the powers of the Federation to legislate. The provision in question, based on the idea of protecting minors, was therefore deemed to be constitutional.32 31  See, for example, P Pernthaler, ‘Föderalistische Verfassungsreform: Ihre Voraussetzungen und Wirkungsbedingungen in Österreich’ (1992) 4 Österreichische Zeitschrift für Politikwissenschaft 365. 32   cf VfSlg 10050/1984.



The Allocation of Powers (Competences)  163

Adherence to the notion of ‘intra-systematic development’ leaves a decisive question unanswered: The Constitutional Court never explains how it determines the intentions underlying the original laws. Clearly, those intentions may be expressed in different ways and the precise way chosen can be decisive in resolving the constitutional issue. In the example above it is crucial to determine whether the intention behind the prohibition against selling alcoholic beverages to minors relates to ‘protecting minors in general’ or, to ‘protecting the health of minors’ in particular. As the intention of the provision against siting vending machines by schools and other places was to prevent minors from wasting their pocket money, it obviously makes a great difference how the intention of the legal provision valid in 1925 is defined. In its most general interpretation, it may cover any sort of protection of minors including the one in question. If it is defined more narrowly, it does not and thus the provision against siting vending machines by schools etc would be deemed unconstitutional. Application of intra-systematic development contains an element of arbitrariness (or: flexibility) and it is fair to say that the Constitutional Court in some cases has overstretched the idea33 and thus weakened the initial intention of the petrification doctrine. The Constitutional Court has, of course, developed other methods of interpreting constitutional provisions regarding competences apart from the petrification doctrine. One of these is called ‘aspect doctrine’ (Gesichtspunktetheorie)34 and states that in any specific regulation there are different aspects that entitle different authorities to legislate. As an example, the construction of a railway would clearly be the business of the Federation under Article 10 no 9 of the Federal Constitution (the railway system – ‘Eisenbahnwesen’). Nevertheless, it would also affect the competence ‘nature conservation’ (this is not listed in the constitution and thus is the responsibility of the states as specified in Art 15 of the Federal Constitution). It could be the case that there is a conflict between the laws concerning the construction of railways, which lie within the competence of the Federation, and the state laws governing nature conservation.35 The Austrian Constitutional Court has ruled that each legislature may only exercise its own power to the extent that it does not undermine the 33

  VfSlg 2721/1954, 7593/1975.  LK Adamovich, B-C Funk and G Holzinger, Österreichisches Staatsrecht, Vol I (Wien, Springer, 1997) 310; Walter et al, Bundesverfassungsrecht, n 9, 175. 35   VfSlg 17212/2004. 34

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power of other legislatures. One territorial corporate body cannot pass laws without considering the spheres of competence of the other territorial corporate body.36 Responsibility of ‘nature conservation’ does not empower states to enact provisions that would make it impossible for the Federation to carry out its railway projects. On the other hand, responsibility for the railway system does not entitle the Federation to enact laws that would jeopardise state efforts for nature conservation. The idea of ‘balancing’ was, thus, introduced into the world of interpreting the allocation of powers, which meant to overcome, at least to a certain extent, the traditional, retrospective methods of reading the constitution. IV. State Legislation

A.  Institutions and Procedures As already mentioned, it is a typical feature of Austrian federalism that the Federal Constitution sets out a rather strict framework for the constitution of the states. According to the Federal Constitution, state legislation is enacted by the State Parliaments (Landtage). The Federal Constitution’s silence on this issue has triggered a discussion as to whether states were allowed to introduce the possibility of submitting a law to a referendum as foreseen on the federal level.37 The Constitutional Court ruled that such a referendum only adhered to the constitution as long as it could not bypass the State Parliament.38 The members of a State Parliament are elected by state citizens (before state-citizenship was reintroduced in 1994, the electorate was formed by Austrian citizens who had taken their main residence in the respective state; the reintroduction of state-citizenship, therefore, had no effect on the electorate). Again, it is the Federal Constitution that provides the principles applying to state elections: they have to follow the same principles that are valid for elections to the National Council. Thus, it would be impossible for a state, to introduce the majority prin36

  VfSlg 10292/1984; H Schäffer, ‘Kompetenzverteilung und Rücksichtnahmep­ flicht im Bundesstaat’ (1985) Zeitschrift für Verwaltung 357. 37  F Merli, ‘Rechtsprobleme des Volksbegehrens in Bundes- und Landesgesetzgebung’ (1988) Juristische Blätter 85. 38   VfSlg 16241/2001.



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ciple as the Federal Constitution requires that general elections in the states are based on the principle of proportional representation. Further, state constitutions may not impose more stringent conditions on voting and eligibility for the State Parliaments than the Federal Constitution does on elections to the National Council. (For example, they cannot introduce a higher minimum voting age than the Federal Constitution establishes for elections to the National Council, but could introduce a lower one). This does not leave much space for the states to establish their own electoral system: the states’ constitutions and the respective electoral laws will have to implement preconditions set out by the Federal Constitution. According to the Federal Constitution, the members of a State Parliament enjoy the same immunity as members of the National Council. They receive a salary of up to 80 per cent of the total salary of members of the National Council.39 The Federal Constitution provides for a state law to require a vote by a State Parliament and a publication by the State Governor in the State Law Gazette (Landesgesetzblatt). The state constitutions may only provide for the modus of authentication and countersignature. The legislation of the states is supervised by the Federation and more specifically by the Federal Cabinet. All State Parliaments’ enactments shall be notified to the Federal Chancellery before publication. Within a period of eight weeks, the Federal Cabinet has the right to submit a justified objection to a State Parliament enactment, if it deems it would threaten federal interests. Any such objection would only have a suspensive effect: The State Parliament may repeat its vote in the presence of at least half of its members. If the bill is passed again it becomes law and the Federal Cabinet may only challenge it in the Constitutional Court if it considers it to be unconstitutional. The approval of the Federal Cabinet is required only if the execution of the law depends on co-operation with federal authorities.

39

  It is up to the State Parliaments to determine the exact amount of money their members receive. The Constitutional Law on the Limit of Salaries of Public Functionaries (Bundesverfassungsgesetz über die Begrenzung von Bezügen öffentlicher Funktionäre, BGBl 64/1997) provides only for a limit. With regard to the lack of power states have this law still allows an enormously generous salary.

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B.  External Powers The Federal Constitution initially attributed the power to conclude international treaties solely to the Federation. In the 1980s, however, states demanded the power to conclude state treaties to efficiently organise regional co-operations that extended beyond the borders of the republic. In case it was desirable to have a legal basis or a legal framework for implementing such a co-operation, the states only had the option to conclude treaties under private law as, according to Article 17 of the Federal Constitution, the allocation of powers explicitly does not affect the position of both the Federation and the states as holders of civil rights. A 1988 amendment to the Federal Constitution, therefore, furnished the states with the (additional) power to conclude international treaties that pertain to matters within their own spheres of competence. States can only conclude treaties with States that border on Austria or their constituent states. Whether and to what extent constituent states within these States have the power to conclude international treaties depends on their constitutions. The conclusion of such treaties (Länderstaatsverträge) is the responsibility of the Federal President. Before the negotiations for any such treaty may begin, the State Governor must inform the Federal Cabinet and obtain its approval. The extent to which State Parliaments participate in the conclusion of treaties that amend existing (state) law is a matter that is regulated by state constitutions. Treaties concluded by a state shall be revoked upon request from the Federal Cabinet.40 It is surprising that, following the 1988 amendment, no such treaty has ever been concluded (so far). Co-operation is still done on the basis of treaties under private law or without any legal framework at all.41 It remains speculative if the reason for this situation lies in the supervisory powers of the Federation or in the simple truth that the need was not that pressing at all. Again, it seems that the constitution mainly responded to psychological demands.42 40

  cf Art 16 of the Federal Constitution.  P Pernthaler, Die Identität Tirols in Europa (Wien, Springer, 2007) 309. 42  Although the 1988 amendment was based on the idea of the sovereignty of the states, the competence to conclude state treaties is not a decisive feature that separates sovereign powers from devolved powers as a comparative view may unveil. Although Germany is a federal republic, the states do not have similar powers, while 41



State Legislation  167

C.  Co-operation in the Federal State and Participation of the States in EU Legislation The allocation of competences between the Federation and the states sometimes triggers the need for both sides to co-operate on certain matters. Co-operation can be necessary between the Federation and the states and also between different states. According to a 1974 amendment of the Federal Constitution introducing Article 15a, territorial corporate bodies are authorised to conclude agreements among themselves concerning matters within their respective spheres of competence. The conclusion of such agreements (Gliedstaatsverträge) in the name of the Federation is, depending on the subject, the task of the Federal Cabinet or a Federal Minister. Each state constitution specifies who is competent to conclude these agreements in the name of the state. Co-operation agreements that are intended to govern the Federation’s legislation need the approval of the National Council with participation of the Federal Council. Such agreements follow the model of international treaties. Generally, the principles of international law concerning treaties – apart from co-operation agreements between states (which can provide for different regulations in their constitutions) – are also applied to cooperation agreements.43 Unlike international treaties, co-operation agreements cannot create directly applicable law. The conclusion of such agreements has become common practice, both with the Federation and the states. In 1992, for instance, an agreement was reached between the Federation and all states providing for the participation of the states in matters concerning the European integration process. It was stipulated that the Federation would inform the states of any intensions or projects concerning European integration that affected the autonomous sphere of state competencies or their sphere of interest. The states were entitled to comment on these intentions or projects and the Federation was obliged to consider them. In case the states issued a unanimous comment, the Federation should be bound by it. Such a comment could only be overridden if there were Italian regions which clearly enjoy only devolved powers have this competence (Art 117 of the Italian Constitution). The Scottish and Welsh parliaments, on the other hand, do not have the power to conclude an international treaty. 43   Walter et al, Bundesverfassungsrecht, n 9, 408.

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imperative reasons relating to foreign or integration policy of which the Federal Chancellor had to inform the states.44 Shortly before the accession to the European Union came into effect, this concept was basically adopted by a 1994 amendment to the Federal Constitution and thus transferred into constitutional law (Art 23d of the Federal Constitution) with the only modification that the states had no longer to be informed of intentions or steps to be taken in the European integration process, but of European Union projects. The original 1992 agreement left it to the states to provide for a procedure to achieve a unanimous comment. In an agreement, again based on Article 15a of the Federal Constitution, the states established a so-called ‘Integration Conference’ composed of all the state Governors and the Presidents of the State Parliaments. According to this agreement an opinion is unanimous if it receives at least five votes in favour and none against. In fact, the states have used their power to issue unanimous comments much more often than the National Council has used its similar powers. Between 1993 and 2009 the states have issued 78 unanimous comments.45 It is only remarkable that none of these were passed by the ‘Integration Conference’, but informally agreed on by the states administrations. If a European Union project affects matters where legislation falls under the responsibility of the states, the federal government may exceptionally allow a representative nominated by the states to participate in the Council’s deliberations. The Federation is also obliged to initiate an action at the European Court of Justice on the request of a state, if no other state objects to the request and if there are no imperative reasons of foreign or integrative policy why such an action should not be launched. With regard to this obligation, the Federation sued the European Commission on behalf of the state of Upper Austria to maintain a law that completely banned the cultivation of GMO-crops although this was not the (official) policy of the Federation and it was clear from the beginning that this was a lost case anyway.46

44

  BGBl 775/1992.  P Bußjäger, S Bär and U Willi, Kooperativer Föderalismus im Kontext der Europäischen Integration (Innsbruck, Institut für Föderalismus, 2006); the data for the years 2006 to 2009 we gratefully received from the Institut für Föderalismus. 46   Joined cases C-439/05 P and C-454/05 P, Land Oberösterreich and Republic of Austria v Commission of the European Communities (2007) ECR I-07141. 45



The Indirect Federal Administration and the State Governor  169

V. The Indirect Federal Administration and the Role of the State Governor

The so-called ‘indirect federal administration’ is an Austrian peculiarity that allows states to participate in the enforcement of federal laws. It effectively strengthens the position of the State Governor (Landeshauptmann)47 although it subjects genuine state organs to directions of the Federal Cabinet. According to the constitution, federal matters may be executed ‘directly’ by federal organs, or ‘indirectly’ by organs of other entities such as the states. ‘Indirect federal administration’ (mittelbare Bundesverwaltung) implies that organs that are not federal organs, act in the name and on the responsibility of the Federation. Article 102 paragraph 1 of the Federal Constitution uses the term ‘indirect federal administration’ meaning precisely that in the sphere of the states the State Governors and the subordinate state authorities exercise the executive power of the Federation.48 The Federation is only free to establish federal authorities in those fields where it is entitled to direct administration. It has done so, for example, within the field of financial administration, where federal authorities which are directly subordinate to the Federal Minister of Finance exercise executive powers. The constitution specifies which matters are to be executed by direct and indirect federal administration in the following way. All matters should be administered indirectly except those expressly specified in Article 102 paragraph 2 of the Federal Constitution. Even though for these matters federal laws may provide otherwise, direct federal administration in matters not specified by Article 102 paragraph 2 of the Federal Constitution is only admissible with the agreement of the state concerned. As a consequence, quite a few laws are administered indirectly including important ones such as the Industrial Code. A key element of the Austrian system of indirect federal administration is the State Governor’s role at the top of the federal administration within the sphere of the state and subordinate to the appropriate Federal Minister, who may give directions to the State Governor. 47

 The term ‘Landeshauptmann’ dates back to the monarchy and can, eg, be found in the 1848 draft version of the constitution that never was enacted. 48   K Weber, Die mittelbare Bundesverwaltung (Wien, Braumüller, 1987).

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Nevertheless, the Standing Orders of the State Cabinet (Landesregierung) can provide for specific categories of business attributed to the indirect federal administration to be conducted by members of the State Cabinet in the name of the State Governor. In such matters, the members of the State Cabinet are bound by the State Governor’s directions. Thus, the State Governor, who is otherwise an equal member of the State Cabinet, may give directions to other members of the Cabinet on certain matters. Therefore, the state governor enjoys a privileged position within the State Cabinet and, thereby, extraordinary political powers. There has been a long discussion within Austria about whether indirect federal administration is (still) reasonable. Some scholars think it would be better to abandon this system, assigning the matters affected to the administration of the states thus transferring the powers of the State Governor to the State Cabinet and leaving only minor powers of supervision for the responsible Federal Ministers.49 A reform of this kind would dramatically reduce the influence of the State Governors and is therefore – allegedly – blocked by them. Depending on their personality, of course, State Governors may be strong political figures who are not only able to represent the interests of their states, but also to strongly influence the policy of their political party on the federal level.50 Traditionally, this has been felt by the People’s Party as it held the positions of the State Governor in states like Tyrol, Salzburg, Upper and Lower Austria, Styria and Vorarlberg for decades. Most notably the State Governors of Tyrol, Styria and Lower Austria were prominent party representatives, who strongly influenced federal policies. Interestingly, when the People’s Party lost general elections in Salzburg and Styria of late, the Social Democrats experienced similar situations. As already mentioned in chapter three, strong State Governors and/or strong local groups of the relevant political party will use their powers to influence the party list submitted to general elections at the federal level, thus ensuring that their interests are represented in the Federal Parliament. In this way, it may be argued, Austrian federalism effectively contributes a counterbalance to the otherwise overwhelming central powers.

49

 G Holzinger, ‘Der österreichische Bundesstaat und seine Reform’ in Akyürek et al, Staat und Recht in Europäischer Perspektive, Festschrift Heinz Schäffer n 24, 277, 292ff. 50   W Pesendorfer, Der Landeshauptmann (Wien-New York, Springer, 1986).



Municipal Government and Autonomous Public Bodies  171

VI. Municipal Government and Autonomous Public Bodies

In Austria, the issues discussed in this section are covered by the rather formal constitutional concept of the so-called ‘self-administration’ (Selbstverwaltung).51 ‘Self-administration’ is defined as the exercise of executive powers by a public body – within a so-called ‘own sphere of powers’ (see below) – without being subject to directions from external authorities, thus operating outside the concept of ministerial responsibility. These public bodies enjoy compulsory membership. The concept of ‘self-administration’ thus, it may be argued, adds to the idea of the vertical division of power, as the executive powers of the Federation and the states are curtailed. Originally, the Federal Constitution referred explicitly only to one form of self-administration, the so-called ‘territorial’ self-administration (‘territoriale Selbstverwaltung’) of towns and municipalities, which already had been introduced in 1848 and redesigned by an 1862 law.52 Thus, the 1920 Federal Constitution maintained the autonomy of municipalities, which was again re-organised by a 1962 amendment of the Federal Constitution. The councils which are the general representative organs of the municipalities are elected according to the same principles that are valid for general elections to the National Council. The mayor may be elected directly by the electorate or – indirectly – by the council. Municipalities may perform their duties without being subject to directions in a so-called ‘own sphere of power’ (eigenen Wirkungsbereich). This sphere basically comprises all matters that concern exclusively or predominantly the local community and are appropriate to be handled by it. Federal and state legislation must expressly specify which matters fall within the municipalities own sphere of power. Should a federal or state law not assign matters that fulfil the aforementioned requirement to the municipalities own sphere of competence it would violate the Federal Constitution. As the municipalities have a substantial ‘right to self-administration’, they might successfully file an application with the 51

 Art 115–120c of the Federal Constitution. The term ‘self-administration’ is used by the more or less official translation of the Federal Constitutor, available on the websites of the Federal Chancellory, www.ris.bka.gv.at. 52   Gesetz vom 5. März 1862, womit die grundsätzlichen Bestimmungen zur Regelung des Gemeindewesens vorgezeichnet werden, RGBl 18/1862.

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Constitutional Court. The federal and the states administration have the power to supervise the municipalities when acting within their own sphere of power. Further, the municipalities may act within a so-called ‘assigned sphere of power’ (übertragener Wirkungsbereich). Within this sphere, their organs – mainly the mayor – are bound by directions from federal and state authorities respectively. The fact that the Federal Constitution explicitly only addressed the so-called territorial self-administration triggered a debate whether the establishment of other autonomous public bodies by a simple law was constitutional, as Article 20 of the Federal Constitution provided for all executive bodies being bound by directions of the highest administrative organs. As already emphasised in chapter four, within the concept of the constitution, freedom from directions posed a problem relating to democratic responsibility and legitimacy as no Federal Minister or member of a State Cabinet could be effectively held liable by a parliament on issues she or he could not influence by means of directions. The Constitutional Court nevertheless ruled53 that the establishment of autonomous public bodies anticipated part of the organisational structure of the 1920 Federal Constitution and therefore was in adherence with the constitution, but it had to meet some conditions which were designed by the Constitutional Court on the model of territorial self-administration. An essential feature was the requirement for organs to be elected – directly or indirectly – by the members of the autonomous body. The jurisprudence of the Constitutional Court added to the impression that Austria was already a nation of chambers and public bodies, a clear heritage of the monarchy and its feudal structure. There are really quite a few such public bodies, for example the legal trade associations like the Austrian Federal Economic Chamber, the Austrian Chamber of Labour or various professional chambers54 as well as the Austrian National Students’ Union and public hunting organisations in the states. A 2008 amendment to the Federal Constitution codified the principles the Constitutional Court had set out for the establishment of so-called ‘nonterritorial self-administering’ bodies. There was no visible need for that; it was probably merely used to explicitly guarantee the ‘social partnership’.55 53

  VfSlg 8215/1977.   cf chapter two. 55  W Schwartz and I Mayr, ‘A New Broom Sweeps Clean? An Attempt to Gradually Change the Austrian Constitution’ (2009) 2 European Public Law 151, 161. 54



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Critics of the concept of self-administration may be right that, especially in small communities (such as small municipalities), the law may not always be applied according to the principle of equality due to personal relations between citizens and law enforcing authorities. And they may also be right that as a consequence of these private relations, smaller communities may be prone to corruption. VII. CONCLUSION

The Austrian Constitution is not only based on the idea to divide powers horizontally, but also vertically. This is achieved by two concepts – the concept of federalism and the establishment of autonomous municipalities and other autonomous public bodies. The federal system, however, based on a compromise between the Conservatives and the Social Democrats, still assigns most of the powers to the Federation, leaving only little to the states. Only the legislative and the administrative powers are shared between the Federation and the states, until so far the states are prevented from establishing law courts. The jurisprudence of the Constitutional Court has tried – to a certain extent – to limit the powers of the Federation by ‘petrifying’ them. Not only did the court jeopardise this idea by introducing the more flexible criterion of ‘intra-systematic development’, it was foremost parliament which amended the constitution in order to strengthen the federal level by assigning even more legislative powers to the Federation. Only from the 1980s onwards a re-interpretation of Austria’s federalism focusing on the genuine sovereignty of the states has counterbalanced the centralising tendencies. Although it might be argued that under the written constitution Austria’s federalism is still underdeveloped, it may be observed under the efficient constitution that State Governors and strong local groups of relevant political parties may effectively influence party policies even on the federal level. Tendencies towards centralisation are further counterbalanced by autonomous municipal governments and other autonomous public bodies which may be established according to the constitution. But it remains debatable whether all of them have already overcome their monarchical past.

174  Federalism and Autonomous Public Bodies Further Reading Bußjäger, P, ‘Föderalismus als Entdeckungsverfahren – Zur Theorie und Empirie des innovativen Bundesstaates am Beispiel Österreichs’ (2008) 16 Journal für Rechtspolitik 193. Dachs, H, ‘The Politics of Regional Subdivisions’ in Lauber, V (ed), Contemporary Austrian Politics (Oxford, Westview Press, 1996) 235. Erk, J, ‘Austria: A Federation without Federalism’ (2004) 34 Publius: The Journal of Federalism 1. ——, Explaining Federalism: State, Society and Congruence in Austria, Belgium, Canada, Germany, and Switzerland (London, Routledge, 2007). Gamper, A, ‘The Austrian Constitutional Convention: Continuing the Path To Reform the Federal State?’ (2006) 2 Revista d’Estudis Autonòmics I Federals 9. Koja, F, Das Verfassungsrecht der österreichischen Bundesländer, 2nd edn (Wien, Springer 1988). Korinek, K, Wirtschaftliche Selbstverwaltung (Wien, Springer, 1970). Obinger, H (ed), Federalism and the Welfare State: New World and European Experiences (Cambridge, Cambridge University Press, 2005). Österreichischer Gemeindebund (ed), 40 Jahre Gemeindeverfassungsnovelle 1962. Aktuelle Rechtsfragen und Entwicklungen der kommunalen Selbstverwaltung (Wien, Manz, 2002). Pernthaler, P, ‘Die Verfassungsautonomie der österreichischen Bundesländer’ (1986) Juristische Blätter 477. ——, Die Kompetenzverteilung in der Krise. Voraussetzungen und Grenzen der Kompetenzinterpretation in Österreich (Wien, Braumüller, 1989). Pesendorfer, W, Der Landeshauptmann (Wien, Springer, 1986). Rill, HP, ‘Die österreichische Bundesstaatlichkeit und die Gesamtänder­ ungsschwelle des Art 44 Abs 3 B-VG’ in Akyürek et al (eds), Staat und Recht in Europäischer Perspektive (Wien, Manz, 2006) 717. Taylor, G, Characterisation in Federations: Six Countries Compared (BerlinHeidelberg, Springer, 2006). Wiederin, E, Bundesrecht und Landesrecht (Wien, Springer, 1995).

6 Jurisdiction

O

Introduction – The Concept of Jurisdiction – Separation of Jurisdiction and Administration – Organisation of the Highest Courts – Powers and Policies of the Highest Courts Pertaining to the Constitution – Conclusion I. Introduction

T

his chapter deals with some of the main aspects of the so-called horizontal separation of powers: the separation between the executive branch of government (the administration) and the independent law courts (jurisdiction). It will be shown that the Austrian constitution initially provided for this separation only with respect to procedural and organisational criteria without explicitly attributing certain matters to ordinary law courts. It will be discussed how this initial approach was challenged after Austria’s accession to the ECHR. The jurisprudence of the ECtHR with regard to Article 6 ECHR forced Austria, step by step, to establish more independent tribunals and to amend its system of administrative review. An even more general reform, envisaging the introduction of administrative courts in the states although being considered for decades is still under discussion. In its second part the chapter will present the court’s system featuring the three highest courts operating on the same level: the Supreme Court, the Administrative Court and the Constitutional Court. Although it will be emphasised that the Austrian constitution effectively introduced the concept of a centralised constitutional review for the first time ever, it nevertheless will be demonstrated how the other two highest courts contribute to the interpretation and implementation of the constitution.

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Thereby, it will be shown how the current system may lead to conflicts especially between the Administrative and the Constitutional Court. Finally, the role of the Constitutional Court and its core function, the review of laws, will be discussed. It will be demonstrated how the nomination of its members is influenced by political parties, how it operates and how its position has changed after Austria’s accession to the European Union. II. The Concept of Jurisdiction

The 1920 Federal Constitution adopted the court system that was developed during the last 70 years of the monarchy. This system basically distinguished between ordinary courts, pronouncing on private law suits and criminal charges, and two public law courts reviewing administrative decisions – the Imperial Law Court and the Administrative Court. Under the monarchy, all courts were explicitly denied the opportunity to review laws, but were allowed to review ordinances and to set them aside when deemed to be illegal.1 Reviewing laws, on the other hand, seemed to contravene the sovereignty of the monarch. As the monarch was afraid courts might use their powers to review laws in the same way the US Supreme Court did, the constitution explicitly prevented them from following the US American example.2 This legal situation was intensively debated amongst scholars and Georg Jellinek published a book in 18853 in which he suggested that the Imperial Law Court should have the power to review laws. He argued that the American system would contravene the concept of monarchical sovereignty mainly because, within that system, it was possible that every judge might review laws. In a monarchy it seemed inappropriate that lower court judges could scrutinise the laws the monarch had enacted with parliamentary consent. Jellinek thought that this problem could be avoided when only one highest court composed of the finest lawyers and most 1  Art 7 Basic Law on Judicial Power (Staatsgrundgesetz über die richterliche Gewalt, RGBl 144/1867). 2  J-C Bluntschli, Allgemeines Staatsrecht, Vol 1, 4th edn (München, J.G. Cotta, 1868) 457ff; H Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ (1929) 5 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 48ff; R von Mohl, ‘Über die rechtliche Bedeutung verfassungswidriger Gesetze’ in R von Mohl, Staatsrecht, Völkerrecht und Politik, Vol 1 (Tübingen, H. Laupp, 1860) 66ff. 3   G Jellinek, Ein Verfassungsgerichtshof für Österreich (Wien, Hölder, 1885).



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noble men had the power to do so. The concept of the centralised system of constitutional review was born. Nevertheless, it was not introduced during the monarchy, but with the formation of the republic. The Imperial Court was re-named Constitutional Court in 19194 and additionally furnished with powers to review and rescind state laws.5 The 1920 Federal Constitution merely extended the scope of reviewing laws to federal laws and attributed the power to review and rescind ordinances to the Constitutional Court thus depriving all other courts of this competence. The concept of the constitutional review of laws was further backed by the doctrine of the step pyramid and well defended by Hans Kelsen against criticism in the 1920s.6 Thus, Austria was the first state to effectively implement a system of centralised constitutional review.7 Nevertheless, the power of the Constitutional Court to rescind laws is still subject of dispute, especially with regard to the court applying new methods of reading the constitution.8 Further, the system does not imply that all the other courts, as well as independent administrative bodies, do not have to reflect on constitutional questions because the Constitutional Court is allowed to review neither rulings of the Supreme Court (or any other civil or criminal law court) nor the decisions of the Administrative Court. The Supreme Court, the Administrative Court and the Constitutional Court, therefore, operate on the same level – all three are ‘highest courts’. What is centralised and monopolised and, therefore, vested only in the Constitutional Court is the power to rescind laws and ordinances. But a law or ordinance may be rescinded on the application of the Administrative Court or the Supreme Court (and other civil or criminal law courts respectively). It particularly lies in the responsibility of the civil and criminal law courts to implement the constitution in the fields of civil and partly criminal law (either by interpreting laws in accordance with the constitution or by filing an application to the Constitutional Court to rescind a law that is held to be unconstitutional).

4

 StGBl 48/1919 – the court was initially named the German-Austrian Constitutional Court. 5  StGBl 212/1919. 6   Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, n 2 above. 7  See also R Machacek, Austrian Contributions to the Rule of Law (Kehl, NP Engel Verlag, 1994) 4. 8  See chapter seven.

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Substantial reforms of this system have been discussed during recent decades.9 In particular, at one point it was envisaged that the Constitutional Court would be granted the power to decide on applications against rulings of the Administrative Court and the Supreme Court respectively. This would ensure that every party of a law suit would have the opportunity to apply to the Constitutional Court in case she or he believed that a constitutional question might be involved. Consequently, the Constitutional Court could hear cases which would otherwise be blocked off by the courts. Such a reform has not been enacted for various reasons. The feeling is widespread that the main reason still lies in the resistance of the judges of the two other highest courts, which oppose such a reform as it would mean that they were no longer ‘highest judges’. Therefore, parties of a civil law suit and persons convicted for having committed a crime have no possibility to apply to the Constitutional Court (but instead may apply to the ECtHR). Only persons claiming to be affected in their rights by an administrative decision may apply to the Constitutional Court for an alleged breach of constitutional rights and to the Administrative Court for an alleged breach of rights laid down in simple laws. They may file applications with the Constitutional Court and the Administrative Court simultaneously or they may file an application with the Constitutional Court first. Should the Constitutional Court dismiss the application claimants may ask the court to refer the case to the Administrative Court. Interestingly this would not work the other way round. This system clearly creates extra work, triggers loopholes and seems to be outdated. But any changes are unlikely partly for political, but partly also for psychological reasons. III. The Separation of Jurisdiction and Administration

One of the pillars of the judicial system is the separation of powers between administration and jurisdiction. Article 94 of the Federal 9

 This was especially discussed during the Austrian Convention (2003–05); see C Jabloner, ‘Die Gesetzesbeschwerde’ in A Bammer (ed), Rechtsschutz gestern – heute – morgen (Wien-Graz, Neuer Wissenschaftlicher Verlag, 2008) 219; M Hiesel, ‘Aufgabenverteilung zwischen Verfassungs- und Verwaltungsgerichtsbarkeit’ (2009) Journal für Rechtspolitik 221.



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Constitution stipulates that judicial and administrative powers shall be separate at all levels of proceedings. The concept laid down by this article has always been interpreted in a more procedural or organisational sense.10 The consequences assumed by the Constitutional Court are that no ‘mixed’ authorities (authorities that act as courts and administrative authorities) may exist, that there may be no application against a court’s ruling to an administrative body nor vice versa, and that there may be no direction from an administrative body issued to a court nor vice versa.11 Notably, the monarchical constitution provided for an exception to this strict separation of powers: in cases where the administration was responsible for settling a dispute over civil rights, the party who was felt to be disadvantaged by the decision could take the matter to an ordinary civil law court. This provision initially adopted by the 1920 Constitution was completely dropped by the 1929 amendment. This triggered some problems. The first problem was solved by means of an interpretation that laymen and other observers may feel inclined to call a cheap trick. The Austrian legal system still contains provisions that basically comply only with the constitution in the light of the above mentioned exception that has been dropped. Disputes about entitlement to social insurance benefits, for instance, are initially settled by an administrative authority, but parties may subsequently bring the matter before ordinary courts. This legal construction is now referred to as ‘subsequent jurisdiction’ (sukzessive Zuständigkeit): recourse to court is (formally) not considered as a stage of appeal against the administrative authority’s decision, but as an examination of the validity of the claim. In theory, the court takes its decision without considering the administrative authority’s decision, which by this stage is invalid. In other words, the procedure implicitly assumes that the administrative authority and the court are subsequently competent. It is thus irrelevant whether courts actually do ignore the administrative decision, as suggested by law. The other problem of dropping the above mentioned exception derives from the fact that Article 94 creates a sphere of (ordinary) jurisdiction and administration that are equally separated from one another. While in theory the separation of powers primarily was designed to 10

 R Walter, H Mayer and G Kucsko-Stadlmayer, Bundesverfassungsrecht, 10th edn (Wien, Manz, 2007) 88f. 11   W Berka, Verfassungsrecht, 3rd edn (Wien, Springer, 2010) 116.

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safeguard the independence of jurisdiction, it now works also vice versa and guarantees that (ordinary) jurisdiction might not interfere with the sphere of administration. As a further consequence of the procedural or organisational approach to the principle of the separation of jurisdiction and administration, it was widely held that legislation was able to allocate powers between jurisdiction and administration almost at will. Some scholars have argued that the legislation was completely free in allocating powers, while others have taken the position that courts had to maintain a minimum of powers (within a sort of ‘core area’).12 The latter idea was based on the observation that the Federal Constitution provided for courts; this only made sense if they had at least some powers. From Article 92 of the Federal Constitution, which establishes the Supreme Court as the court of final instance in civil and criminal law suits, it has been further concluded that these powers should lie in the fields of civil and criminal law. However, determining the extent of the courts’ powers in these areas was still a matter for the legislature. According to this theoretical approach, administrative authorities were entrusted with the settlement of conflicts that involved genuine questions of civil law.13 Moreover, a rather comprehensive system of administrative penal law was maintained and under the pretext of ‘decriminalisation’ criminal offences were ‘downgraded’ to administrative offences. This did not necessarily mean that they triggered lower fines, but the stigma of being a criminal was avoided. This Austrian concept was jeopardised by Article 5 and, predominantly, Article 6 of the ECHR. Austria adopted the ECHR in 1958 in the rank of a constitutional law. Although two reservations were made concerning Articles 5 and 6 the overall view was that Austria’s legal system met all the requirements of the ECHR. Austrian public lawyers were taken by surprise that in the end this was not the case.14 Other than Article 94 of the Federal Constitution (at least in the way it is read), Article 6 of the ECHR includes substantive requirements for the concept of the separation of judicial and executive powers. It enti12  L Adamovich, Grundriss des österreichischen Staatsrechts (Wien, Österreichische Staatsdruckerei, 1927) 174f; A Merkl, ‘Sind die Rechtspfleger mit der Verfassung vereinbar?’ (1929) 12 Gerichts-Zeitung 177, 178. 13  See B Wieser, ‘Zur materiellen Gewaltentrennung zwischen Justiz und Verwaltung’ (2009) 131 Juristische Blätter 351. 14   VfSlg 11500/1987; Walter et al, Bundesverfassungsrecht, n 10, 779.



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tles everyone to have a claim regarding civil rights and obligations or any criminal charges against him or her heard by an independent and impartial tribunal established by law. As the European Court of Human Rights has made clear, ‘civil rights and obligations’ and ‘criminal charges’ are European concepts. These notions, thus, have to be interpreted not by reference to domestic law, but in the spirit of the ECHR. Austrian lawyers had to find out that the concept of ‘civil rights and obligations’ in the ECHR is much broader than that of ‘Zivilrecht’ (civil law affairs) in the Austrian Federal Constitution (Art 10 para 1 no 6). All decisions of administrative authorities that are decisive for a person’s assets or that affect a person’s gainful employment involve a determination of ‘civil rights and obligations’. The European Court of Human Rights has held Article 6 of the ECHR to be applicable, for example, to disputes concerning the approval of contracts of sale,15 to the disqualification from practice as a doctor,16 to a disciplinary procedure leading to disqualification from a liberal profession17 and to the refusal to grant permission to build on privately owned land.18 Thus, the concept of ‘civil rights and obligations’ applied by the ECtHR include a large number of legal positions that under the Austrian legal system traditionally belonged to the area of public law and that used to be settled by administrative authorities bound by directions. Although the German version of the ECHR translates the term ‘tribunal’ as ‘Gericht’, which actually means ‘court’, it soon became quite clear that an ECHR ‘tribunal’ does not necessarily have to be a ‘Gericht’ (court) in the sense of the Austrian Federal Constitution. All law courts established by the Austrian Federal Constitution clearly meet the criteria required for ECHR tribunals. But, apart from that, independent administrative authorities may also meet those requirements as the ECHR is not built on the organisational structure of the Austrian constitution. Austria, therefore, was not obliged to attribute all civil right issues to law courts but could also establish independent administrative authorities. As discussed in chapter four, the Austrian constitution had already provided for the establishment of independent tribunals according to its Article 133 no 4 under the condition that at least one of their members was a judge. ‘Independence’ in the sense of the Austrian constitution, 15

  Ringeisen v Austria Series A no 13 (1971) 1 EHRR 455.   König v Federal Republic of Germany Series A no 27 (1978) 2 EHRR 170. 17   Diennet v France Series A no 325-A (1995) 21 EHRR 554. 18   Allan Jacobsson v Sweden Series A no 163 (1989) 12 EHRR 56. 16

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however, only meant ‘free from directions’. But the ECHR demanded more: additionally, such an independence had to be ensured. For instance, to guarantee that members of tribunals cannot be replaced or removed arbitrarily, they have to be appointed for a certain period of office. According to the European Court of Human Rights, appointment for a period of three to five years is sufficient.19 With regard to the principle: ‘Justice must not only be done, but must also be seen to be done’, there shall not be any circumstances that give rise to doubts over the independence of the authorities. Such doubts may arise when a member of the authority is involved in the review of a decision taken by an authority to which he or she will return after the expiry of the period of office with the tribunal in question.20 In such cases, the requirements of Article 6 ECHR are not met. Nevertheless, it turned out that it was legally possible to furnish the independent tribunals with the additional guarantees required by Article 6 ECHR. Under many laws (on the level of the Federation as well as the states) independent tribunals were established to hear cases concerning civil rights. As the ECtHR conceded that Article 6 ECHR only demanded a tribunal to pronounce on ‘civil rights and obligations’ in the final instance, Austrian lawyers initially felt that the requirements of Article 6 ECHR were met anyway as the administration was subject to review by the Administrative Court and the Constitutional Court which are both courts in the sense of the Federal Constitution and, therefore, also ‘tribunals’ in the sense of the ECHR.21 This view was not shared by the ECtHR, as according to Article 6 ECHR the tribunal must have the power to hear all aspects of the case and must have full jurisdiction over questions of both fact and law. The Austrian system of administrative review, stemming from the Hapsburg Monarchy, does not satisfy this requirement on a systematic basis, as the power of the Administrative Court to scrutinise the facts of a case is severely restricted. The Administrative Court may hear the facts of the case only when the applicant can prove that the authority missed important parts or based its decision on facts contrary to what was established in the files.22 19

  Le Compte, Van Leuven and De Meyere v Belgium, Series A no 43 (1981) 4 EHRR 1; Campbell and Fell v United Kingdom Series A no 80 (1984) 7 EHRR 165. 20   Belilos v Switzerland Series A no 132 (1988) 10 EHRR 466. 21   VfSlg 5100/1965, 10080/1984. 22  Art 42 Administrative Court Act – Verwaltungsgerichtshofgesetz.



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Problems may, therefore, arise if an applicant disputes the establishment of the facts by the authority on other grounds. Whether the review of an administrative authority’s decision by the Administrative and/or the Constitutional Court satisfies the requirements of Article 6 ECHR depends therefore on the specific circumstances of the case. There are several rulings of the European Court of Human Rights that hold that the Administrative Court’s review did fulfil the requirements of Article 6 ECHR in the case under consideration.23 Nevertheless, this cannot be guaranteed for every single case. In response to this situation, the Austrian Constitutional Court held that it would mean a radical change if not a ‘total revision’ of the Austrian constitution if the implementation of Article 6 ECHR required that all cases that may affect civil rights (as understood by the ECtHR) had to be heard by independent administrative authorities meeting all the criteria of Article 6 ECHR. So radical a change could not be implemented by rulings of the Constitutional Court, but only by parliament amending the constitution. Therefore, a 1987 Constitutional Court ruling24 introduced the idea of differentiating between a ‘core area’ (Kernbereich) and a ‘peripheral area’ (Randbereich) of civil law. Decisions concerning matters in the ‘core area’, including rights and obligations of citizens to one another, must either be taken by a tribunal with full jurisdiction over questions of both facts and law or they must be open to review by such a tribunal. In contrast, it is sufficient for matters in the ‘peripheral area’ of civil rights to be reviewed by the Administrative and/or the Constitutional Court. The Constitutional Court has found that – amongst others – the following matters fall into the ‘core area’ of civil rights: questions concerning compensation for expropriation25 or damages,26 approving acquisitions of property27 and disputes arising from agreements between doctors and social insurance institutions.28 In contrast, according to the Constitutional Court’s rulings the following issues belong to the ‘peripheral area’ of civil rights: questions concerning 23   Zumtobel v Austria Series A no 234-C (1993) 17 EHRR 116; Ortenberg v Austria Series A no 295-B (1995) 19 EHRR 524; Josef Fischer v Austria (App no 16922/90) (1995) 20 EHRR 349. 24   VfSlg 11500/1987. 25   VfSlg 11760/1988. 26   VfSlg 11691/1988. 27   VfSlg 15350/1998. 28   VfSlg 11729/1988.

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permission to build on privately owned land,29 permission to employ foreigners30 and the withdrawal of a permit to run a pharmacy.31 At the time of this 1987 landmark decision of the Constitutional Court, numerous independent administrative bodies already existed; only a few had to be added. These bodies were either established by a constitutional law or they were tribunals, whose membership included at least one judge and which were furnished with further guarantees of independence. Although the approach of the Austrian Constitutional Court to reading Article 6 ECHR might not be convincing, it has not been jeopardised by the ECtHR so far. The Austrian system of administrative penal law had to undergo similar changes. The term ‘criminal charges’ was also given a much broader meaning under the ECHR than what Article 10 paragraph 1 no 6 of the Austrian Federal Constitution classified as ‘criminal law’. It includes all provisions concerning offences of criminal nature (ie that are criminal in their essence) and all provisions concerning penalties of a ‘certain severity’. The guarantees of Article 6 ECHR, thus, apply to the entire Austrian administrative penal law as well as to disciplinary proceedings.32 To safeguard its administrative penal law system, Austria expressed some reservations when accessing the ECHR. These reservations were initially interpreted in a very extensive way. Despite its accession to the ECHR, Austria could maintain its administrative penal law system empowering administrative authorities (under the direction of the highest authorities) to impose fines and even custodial sentences. This broad interpretation of the reservations was gradually changed by the rulings of the ECtHR.33 It therefore became necessary to establish tribunals to pronounce judgments in proceedings on the grounds of administrative contraventions. A 1988 amendment to the Federal Constitution introduced the Independent Administrative Tribunals in the States (Unabhängige Verwaltungssenate in den Ländern). Politically, this amendment was partly inspired by the Waldheim case: the establishment of these independent tribunals should enable Austria to withdraw the reservations 29

  VfSlg 11500/1987.   VfSlg 13505/1993. 31   VfSlg 11937/1988. 32   VfSlg 18309/2007. 33  C Kopetzki, ‘PersFrG’, in K Korinek and M Holoubek (eds), Österreichisches Bundesverfassungsrecht (Wien, Springer, 2000) 4. 30



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pertaining to Articles 5 and 6 ECHR and, thus, help to restore its otherwise (partly) damaged reputation. But as the initial aim was only to just meet the requirements of the ECHR, notwithstanding foreseeable developments of the jurisprudence of the ECtHR, influential lawyers recommended upholding the reservations. Consequently, they were not withdrawn but according to the jurisprudence of the ECtHR they became more and more meaningless and nowadays they are practically irrelevant. The organisation of the ‘Independent Administrative Tribunals in the States’ is subject to state legislation. Therefore nine such tribunals exist. Members of the Independent Administrative Tribunals are appointed by the respective State Cabinet for a period of at least six years. (Provisions concerning the period of office vary from state to state. In Upper Austria and Vienna, for instance, members are appointed for unlimited terms; in other states a period of office is unlimited only in case of reappointment). 34 In exercising their function, members are not bound by any directions. Before the expiry of their period of appointment, they may be removed from office only in legally specified cases and only following a resolution of the Independent Administrative Tribunal. Hence, their legal status is very similar to that of a judge. The Independent Administrative Tribunals act as channels for appeal in administrative penal procedures, with the exception of federal fiscal penal cases, which are handled by Independent Appellate Tribunals (Berufungssenate) under the Federal Tax Penal Act (Finanzstrafgesetz) in accordance with the requirements of Article 6 ECHR. They also pronounce judgment on complaints by persons alleging infringement of their rights through the ‘exercising of direct administrative power and compulsion’35 (Maßnahmebeschwerden). Federal fiscal penal law cases are again excluded. Further, Independent Administrative Tribunals rule on other matters assigned to them by state or federal law. As a result of this provision, Independent Administrative Tribunals can be assigned matters relating to ‘civil rights’ in the sense of the ECHR. In the course of the 2001 reform of the organisation of the Austrian administration (Verwaltungsorganisationsreform BGBl I 65/2002), the Independent Administrative Tribunals were assigned the power to 34

  Walter et al, Bundesverfassungsrecht, n 10, 444ff.  Police authorities may exercise such powers arresting people or searching homes without a proper warrant. 35

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function as the final instance in a large number of cases and thereby to pronounce on appeals against administrative decisions.36 In addition to the Independent Administrative Tribunals, amendments to the Federal Constitution introduced the Independent Federal Asylum Tribunal (Unabhängiger Bundesasylsenat) in 1997, followed in 2002 by the Federal Procurement Authority (Bundesvergabeamt). A 2008 amendment transformed the Independent Federal Asylum Tribunal (Unabhängiger Bundesasylsenat) into the Asylum Court (Asylgerichtshof). With regard to the members of the Asylum Court, the general rule applies that they are appointed by the Federal President based on nomination by the Federal Cabinet. (Members of the Asylum Court must have completed legal studies or legal and political science studies and have had at least five years of legal professional experience).37 Actually, almost all members of the Independent Federal Asylum Tribunal have been accepted as members of the newly established court.38 This has led to the – at least initial – problem that the Asylum Court still acted as an administrative tier of appeal rather than as a law court.39 After all other stages of legal remedy have been exhausted, in asylumrelated matters the Asylum Court may pronounce on rulings of administrative authorities or on complaints on the ground that an authority has breached its onus to take a decision (Art 129c of the Federal Constitution). Only landmark decisions (Grundsatzentscheidungen) of the Asylum Court are subject to review by the Administrative Court, whereas all other decisions, which represent the majority of cases, are merely subject to review by the Constitutional Court in accordance with Article 144a of the Federal Constitution. Landmark decisions confirmed by the Administrative Court are binding on the Asylum Court in all pending and future cases and – arguably – also on the Constitutional Court. The Asylum Court is entitled to file an application with the Constitutional Court to pronounce on the legality of ordinances or the 36

  For further competences of the Independent Administrative Tribunals, see Art 129a para 1 of the Federal Constitution. 37  Art 129d para 3 of the Federal Constitution. 38  It is interesting that a period of ten years of legal professional experience applies for members of the Administrative Court. It cannot be ruled out that the standards for members of the Asylum Court were designed to achieve the result described in the text. 39  See VfSlg 18632/2008 especially with regard to the quality of the reasoning given by the Asylum Court.



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constitutionality of laws the Asylum Court would have to apply to a particular case (Art 139 and Art 140 of the Federal Constitutional Law). The Independent Administrative Tribunals and the Federal Procurement Authority are furnished with these powers as well. Consequently, it might be said that they are somewhat hybrid in nature: they are administrative bodies, but may exercise powers that are otherwise attributed to courts only. As the current concept of administrative review does not fulfil the requirements of the ECHR on a systematic basis and, with regard to the numerous independent bodies established either by constitutional laws or simple laws the situation is rather confusing. In fact, there can be no doubt that it is in dire need of a substantial and comprehensive reform. The remedy was already found decades ago: the introduction of administrative courts in the states as a first tier of administrative review.40 As the monarchical system privileged the administration and, subsequently, favoured the influence of political parties, this idea was very well opposed. Nevertheless, in February 2010 the Federal Chancellor tabled a draft bill comprising a comprehensive reform of administrative review.41 It provides for the introduction of nine administrative courts, one in each state and two federal administrative courts. The states will be responsible for organising their courts. Thus, for the first time, they will be allocated with juridical powers in a formal sense. All these eleven courts will form the first tier of administrative review and it is envisaged that they will have the power to decide on the merits of a case. The Administrative Court will form the second tier of administrative review, thus becoming a court of appeal. The proposed constitutional amendment itself still restricts the jurisdiction of the administrative courts to the review of administrative rulings and the exercising of direct administrative power. In this way, it might be argued, it remains archaic and outdated. Interestingly, however, the draft bill contains a provision that would leave it to the legislation to furnish the administrative courts with a wider jurisdiction to review administrative actions. At the same time, the draft bill suggests dissolving more than a hundred independent authorities and bodies both at the federal level and in 40

 C Grabenwarter, ‘Auf dem Weg zur Landesverwaltungsgerichtsbarkeit’ (1998) Journal für Rechtspolitik 269; P Pernthaler and I Rath-Kathrein, ‘Die Einführung von Landesverwaltungsgerichten – eine Alternative zu den UVS in den Ländern’ (1989) Juristische Blätter 609. 41   Verwaltungsgerichtsbarkeits-Novelle 2010, 129/ME (XXIV. GP).

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the states. The Asylum Court, however, would remain untouched. This proposed amendment represents a radical reform of Austria’s judicial system and it remains to be seen to what extent or if at all this proposed amendment will be enacted. The tenor of the current discussion suggests that any substantial reforms of large parts of Austria’s monarchical heritage prompts considerable resistance, especially within the administration. As the proposed dissolution of independent bodies also affects autonomous bodies (such as the chamber of attorneys or the chamber of notaries), the opposition seems to be widespread. IV. The Organisation of the Highest Courts

All the members of the three highest courts, the Supreme Court, the Administrative Court and the Constitutional Court, are appointed by the Federal President on the recommendation of different institutions, which can be indicative of the amount of influence political parties may take on filling vacant positions. Thus, it might be argued, the division of power as provided for by the constitution is (again) at least partly overshadowed by the party system. The 54 ordinary members of the Supreme Court and the 66 ordinary members of the Administrative Court are appointed on the recommendation of the Federal Cabinet. But the Federal Cabinet is more or less bound by recommendations of the staff division (Personalsenat) of the Supreme Court and the plenary assembly (Vollversammlung) of the Administrative Court respectively. This provision ensures a strong influence of the courts on the recruitment of the judges and, thus, curtails the influence of the political parties. The president and the vice president of the Supreme Court, as well as the president and the vice president of the Administrative Court are recommended by the Federal Cabinet without being bound by recommendations from third parties. Although these vacancies are publicly announced, there are no public hearings for the candidates and the Federal Cabinet decides behind closed doors. Party affiliations, therefore, seem to be decisive and especially with regard to the president and the vice president of the Administrative Court, Austrian media quite openly discuss that these positions are shared between affiliates of the People’s Party and the Social Democrats. Basically the same accounts for the president, the vice president and all 12 members and six alternates of the Constitutional Court. According



The Organisation of the Highest Courts  189

to the Federal Constitution, the president, the vice president, six members and three alternates are appointed on the recommendation of the Federal Cabinet. Again, the decision is taken behind closed doors without any public hearing for the candidates. Three members and two alternates are appointed on the basis of a proposal from the National Council and the Federal Council is entitled to submit recommendations for the remaining three members and one alternate. It is no secret that all the members of the Constitutional Court are affiliated with political parties, predominantly the People’s Party and the Social Democrats. Media will address vacant positions as ‘conservative’ and ‘social democratic’ respectively and, in practice, this distribution is basically mutually accepted. Single governments, therefore, have not tried to fill vacant positions only with their candidates, but have restricted themselves merely to overturn the majority. As the president is normally not entitled to vote, in political controversial cases it might, therefore, be decisive which party enjoys a majority of seven judges. After WWII this majority was in favour of the People’s Party. It was turned around in the 1970s by the Kreisky government that filled one (and only one) ‘conservative’ position with a Social Democrat. Allegedly, this was the main reason that the Constitutional Court did not quash the most controversial laws the Social Democratic government enacted: the liberal laws on abortion, according to which the termination of pregnancy was no longer punishable within the first three months after conception42 and the democratisation of the self-government of universities.43 As a consequence, the conservative president of the court retired in protest. In 2003, the coalition government formed by the People’s Party and the Freedom Party filled a vacant ‘social democratic’ seat on the bench with a candidate affiliated with the Freedom Party. This did not only give the court a majority in favour of the government, but for the first time it also allowed a third party to nominate a judge thus breaking the duopoly of the People’s Party and the Social Democrats. More than all the other courts the Constitutional Court is therefore part of the political system which is also reflected in its jurisprudence.

42

  VfSlg 7400/1974.   VfSlg 8136/1977.

43

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V. Powers and Policies of the Highest Courts Pertaining to the Constitution

A.  The Supreme Court Whenever the Supreme Court seriously doubts whether a law it has to apply in a pending case is constitutional, it is under a legal obligation to file an application to the Constitutional Court, which may decide on this question. The parties of the pending law suit may try to convince the court that a law (or an ordinance) contravenes the constitution (or, in the case of an ordinance, a simple law) but they have no right to file such an application themselves. It is, therefore, in the hands of the Supreme Court (as well as lower courts) to safeguard the constitution in the fields of their jurisdiction, which comprises most parts of civil and criminal law. Unfortunately, no statistics are available that would indicate how often the Supreme Court files an application with the Constitutional Court. Observers may get the impression that this is very rarely done and that the Supreme Court would try to solve constitutional questions by interpretation rather than by applying to the Constitutional Court thus maintaining the status of a highest court. It has various possibilities to do so, especially with regard to fundamental rights. Within the fields of criminal law the Supreme Court has jurisdiction to rule on so-called ‘fundamental rights applications’ (‘Grundrechts­ beschwerde’). According to a 1992 law, everyone who is detained on the order of a judge or a criminal court has the right to file an application with the Supreme Court for an alleged infringement of the right to personal freedom.44 In such a case, the Supreme Court would basically restrict its review to scrutinising the reasoning given by the lower court. Should the Supreme Court find that it was unreasonable or inconclusive, it would quash the decision, but would not necessarily terminate the detention. The lower court, thus, would get another chance to produce better arguments. Further, the Supreme Court is responsible for implementing rulings of the ECtHR.45 Should the ECtHR establish that a decision of a crimi44  Fundamental Rights Application Act (Grundrechtsbeschwerde-Gesetz), BGBl 864/1992. 45  Art 363a Code of Criminal Procedure (Strafprozessordnung, StPO), BGBl 631/1975 in the version of BGBl 762/1996.



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nal law court has violated the ECHR, anyone who has been affected by such a decision may apply to the Supreme Court to reopen the case. Reopening has to be granted when it cannot be denied that the infringement of a right guaranteed by the ECtHR had a disadvantaging effect on the original court’s decision. Remarkably, the Supreme Court expanded its power to reopen a case. Nominating itself as the ‘safeguard of fundamental rights’ in the fields of criminal law, it held that it did not have to wait for a ruling of the ECtHR to reopen a case, but could establish on its own whether the ECHR was violated.46 In doing so, the Supreme Court claimed only to fill a loophole with regard to Article 13 ECHR, which imposes the duty on the Member States to provide for efficient domestic legal remedies in case a right guaranteed by the ECtHR is infringed. This ruling of the Supreme Court clearly set aside its traditional (more formal) approach of reading the Criminal Procedure Law Code (Strafprozessordnung). Hence, the court was heavily criticised for having blatently crossed the fine line between judicial adjudication and policy making. It may be speculated if the way the court established itself as a ‘safeguard of fundamental rights’ might have aimed at blocking any further attempts to allow the Constitutional Court to review the decisions of ordinary courts.47 In the field of civil law, it is the responsibility of the civil law courts and above all the Supreme Court to decide whether fundamental rights may be attributed a third party effect. Initially, fundamental rights arguments played no part in civil law doctrine. Only the Data Protection Act (Datenschutzgesetz) explicitly furnished the fundamental right to data protection with a third party effect. It was, therefore, up to the jurisprudence of the Supreme Court to accept such an effect also in other fundamental rights, especially the principle of equality. The Supreme Court has already used the principle of equality as an argument to force parties that hold a monopoly or a similarly powerful economic position into contract. With respect to that, the Supreme Court ruled that the proprietor of the only restaurant in a small village still had to serve a customer who had publicly criticised the proprietor thus curtailing his right to freedom of contract.48 Particularly within the field of labour law, the Supreme Court will have to implement the right not to be 46

  cf OGH 1.8.2007, 13 Os 135/06m.  S Reindl-Krauskopf, ‘Die neue Erneuerung des Strafverfahrens – zulässige Analogie oder Rechtsschöpfung’ (2008) Juristische Blätter 130. 48  OGH 14.07.1986, 1 Ob 554/86 = SZ 59/130. 47

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discriminated against on grounds of gender or for some other illegitimate reasons.49 Although Austria established a centralised system of constitutional review, there are vast fields of law in which the civil and criminal law courts under the guidance of the Supreme Court have to deal with fundamental right issues. In some cases, it is the sole responsibility of the Supreme Court to safeguard fundamental rights. Although initially reluctant, the Supreme Court becomes more and more aware of this responsibility. B.  The Administrative Court Although a 1946 amendment to the Federal Constitution50 proclaimed that the Administrative Court ‘ensures the legality of the entire administration’, in reality, however, the 1920 concept of administrative review basically remained unchanged. It restricts the Administrative Court’s powers of review to specific types of administrative acts, generally to the review of rulings (Bescheide) and in very rare cases directions. Even in cases of default in issuing a decision (Säumnis), the Administrative Court can only exercise its power if the administrative authority involved was under an obligation to issue a ruling. The core function of the Administrative Court therefore is to pronounce on complaints that allege illegality of rulings by administrative authorities (Bescheidbeschwerde). In such complaints, the claimant has to invoke a substantive right laid down by a simple law. The Administrative Court decides in the course of a contradictory procedure (kontradiktorisches Verfahren) on the illegality of the contested ruling. Parties to the procedure are the claimant and the respective authority. If a complaint is not rejected for procedural reasons, the Administrative Court may either dismiss it for being unfounded or repeal the contested ruling. Consequently, the Administrative Court basically is a court of cassation. It may repeal a ruling of an administrative authority but it may not resolve the substance of a matter brought before it. Following the repeal of a ruling in a specific case, the administrative authority must issue another ruling, but in doing so it will be bound by the legal opinion of 49

  cf T Tomandl, Arbeitsrecht, Vol I, 6th edn (Wien, Braumüller, 2008) 241ff.   BGBl 211/1946.

50



Powers and Policies of the Highest Courts and the Constitution  193

the Administrative Court. This new ruling can again be contested at the Administrative Court (or the Constitutional Court). Thus, it is possible that in a single case complaints are filed several times with the Administrative (and the Constitutional) Court respectively. Only if an administrative authority defaults in issuing a decision, the Administrative Court may exceptionally settle the matter substantively. In the same way as the Supreme Court, the Administrative Court is obliged to file an application with the Constitutional Court if it seriously doubts whether a law (or an ordinance) it has to apply in a pending case is consistent with the constitution. Unlike the Supreme Court, the Administrative Court regularly contests points of law at the Constitutional Court. In the years between 1994 and 2008, on average, it filed 93 such applications per year. The statistics are, however, misleading as they only count the applications, but not the number of provisions involved. As it is quite common that a number of applications relate to one and the same provision of a law, the Administrative Court did not contest 93 laws or ordinances per year but significantly less. But, nevertheless, the statistics show that applications by the Administrative Court play a part in the jurisprudence of the Constitutional Court. The reason for this phenomenon may be found in the academic literature that intensively scrutinises administrative law in the light of the constitution,51 something that traditionally is not done in the field of private law. Other than in post-war Germany and contrary to all theoretical efforts, especially in creating the ‘step pyramid’ of law, the Austrian constitution has never gained a dominating role outside the realm of administrative law. The more interesting question, of course, would be how successful these applications are when filed by the Administrative Court. Unfortunately, no statistics exist that would provide reliable information. But what can be said is that applications are not automatically successful because they are filed by one of the highest courts. The Constitutional Court would make it quite clear if it would not share the doubts raised by the Administrative Court. Further, the Constitutional Court may eliminate the doubts of the Administrative Court by insisting that the law can be interpreted in accordance with the constitution and thus may dismiss the application to rescind it, which is done more often than not. 51   cf for example standard textbooks on administrative law, such as S Bachmann et al, Besonderes Verwaltungsrecht, 8th edn (Wien, Springer, 2010).

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Although the Administrative Court is not prevented from interpreting laws in accordance with the constitution, it sometimes fails and sometimes even explicitly declines to do so. This was especially so with regard to fundamental rights and human rights more generally. The Administrative Court hardly adopted the more substantive reading of the constitution the Constitutional Court started to introduce in the 1980s.52 To a certain extent, the Administrative Court still adheres to the more formal, traditional reading of administrative and constitutional laws.53 Consequently, this has sometimes lead to a struggle between the two public law courts – very much at the expense of the claimant seeking legal remedies. In the 1980s, for example, the Constitutional Court ruled that the expulsion of a foreigner was only legal if the incumbent administrative authority had properly balanced the public demand of expulsion against the substantive right to private and family life, according to Article 8 ECHR.54 This obligation was directly derived from Article 8 ECHR as the Aliens’ Police Act (Fremdenpolizeigesetz § 3, BGBl 75/1954), on which the expulsion had to be based, did not explicitly provide for respecting the private and family life of the foreigner. In consequence, foreigners were expelled for (minor) offences (like speeding) despite the fact that they had been living in Austria for a decade, were married to an Austrian and had children. Contrary to the jurisprudence of the Constitutional Court the Administrative Court insisted that the simple law, the Alien Act, did not provide for respecting the foreigner’s private and family life, thus administrative rulings which neglected these rights were perfectly legal. The administrative authorities, more than willingly, followed the jurisprudence of the Administrative Court. The effect of this struggle between the two highest courts was clear: those foreigners who filed an application with the Constitutional Court had a chance to win their cases, while those who contested the ruling at the Administrative Court were instantly dismissed. At the end, the view of the Constitutional Court only prevailed because it rescinded the relevant provisions of the Aliens’ Police 52

  cf chapter seven.  This approach of the Administrative Court, however, seems to change by and by as it has to apply European Law – cf Berka, Verfassungsrecht, n 11, 303ff; M Handstanger, ‘Zur Bedeutung der Entscheidungen des EGMR in der Praxis des VwGH’ (2007) Richterzeitung 160. 54   cf VfSlg 8792/1980. 53



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Act,55 forcing the legislation to provide for the respect of the foreigner’s private and family life. (In which the legislator only succeeded at a second attempt). 56 The main problem with the referred case, of course, lies in the structure of the concept of public law review: as there are two highest courts, they may develop different ways of reading the law. One of the most significant cases – although arguably exceptional – that reveals this structural problem of Austria’s rather archaic concept, is the case of the Jehovah’s Witnesses that at the end had to be brought before the ECtHR.57 Already in 1978, the Jehovah’s Witnesses requested to be recognised as a religious society under the 1874 Recognition Act (Anerkennungsgesetz). The responsible Federal Minister did not react. The (formal) legal question involved was whether the matter had to be determined by issuing an ordinance or an administrative ruling. Had the law only provided for issuing an ordinance the applicants would have had no right to obtain a formal decision. As the Federal Minister’s inactivity was based on the latter view, several members of the religious group lodged a so-called direct application (Individualantrag)58 with the Constitutional Court, claiming that the 1874 Recognition Act violated their right to freedom of religion (Art 9 ECHR) and their right to freedom of association (Art 11 ECHR). They argued that they were also directly affected by the relevant provisions of the 1874 Recognition Act as no administrative ruling was to be delivered. Therefore, they argued, a ‘direct application’ was admissible according to the jurisprudence of the Constitutional Court. Hence, the Constitutional Court ruled that – contrary to the legal view of the Federal Minister – the applicants had the right to have their case determined by an administrative ruling. The ‘direct application’ was, therefore, inadmissible. As the Federal Minister did not adhere to the decision of the Constitutional Court, the applicants filed a complaint with the Administrative Court alleging the Federal Minister’s default in issuing a decision. But the Administrative Court shared the 55

  VfSlg 10737/1985.   cf VfSlg 11455/1987, 11857/1988; B Raschauer, ‘Sind die Gesetzesvorbehalte der Grundrechte für die Vollziehung unmittelbar anwendbares Recht?’ (1988) 1 Zeitschrift für Verwaltung 30; H Tretter, ‘Neuerliche Verfassungs (Konventions) widrigkeit des § 3 Fremdenpolizeigesetz (Aufenthaltsverbot) und Neuregelung durch den österreichischen Gesetzgeber’ (1988) Europäische Grundrechte Zeitschrift 49. 57  cf Religionsgemeinschaft der Zeugen Jehovas and others v Austria (App no 40825/98) ECtHR 31 July 2008. 58   cf chapter six, v.c. 56

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view of the Federal Minister that in this particular case the law did not provide for the issuing of an administrative ruling and dismissed the applicants’ complaint. The applicants, therefore, again filed a ‘direct application’ with the Constitutional Court requesting that the court reviewed the law and the relevant provisions respectively as it had turned out to be impossible to obtain a formal administrative decision. The Constitutional Court, unsurprisingly, stuck with its previous decision and dismissed the direct application. But as an obiter dictum the court indicated that there might be a way out: the applicants were to file a complaint alleging the Federal Minister’s default in issuing a decision with the Constitutional Court. Albeit the Constitutional Court would have to reject such a complaint for not having any jurisdiction in such cases, it nevertheless would create a situation in which two courts, the Administrative Court and the Constitutional Court, had declined jurisdiction to decide on the same matter. As a result it would fall under the powers of the Constitutional Court to resolve such a ‘negative conflict of responsibilities’ (negativer Kompetenzkonflikt) on application. As the applicants acted in accordance with this obiter judgment, the Constitutional Court finally quashed the decision of the Administrative Court, rejecting the complaint alleging the Federal Minister’s default in issuing a decision, ruling that the Administrative Court had jurisdiction in this particular case. It did not only take 17 years to solve this formal legal problem,59 but also a broad reading of the term ‘negative conflict of responsibility’ as the two courts rejected the initial complaint for completely different reasons. Although the Constitutional Court only pretended to fill a ‘loophole’ in the system, in the end it overruled the Administrative Court and in doing so it also revealed the structural problem caused by a system that establishes two highest public law courts. In the final analysis one might reflect that such exceptional cases have led to situations which are almost reminiscent of the work of the great Prague-born author Franz Kafka.60 It might seem generous that 59

 Nevertheless, the case was far from being over as the legislation intervened denying the Jehovah’s Witnesses the status of a recognised religious society under the 1874 Recognition Act. 60   cf the great novels ‘Das Schloss’ (‘The Castle’) and ‘Der Prozess’ (‘The Trial’); especially readers who are more familiar with the works of Charles Dickens may be reminded of Jarndyce and Jarndyce, the ‘interminable brief’ law case before the Court of Chancery, told in the great Bleak House novel.



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the ECtHR did not rule that the length of the procedure did not violate the applicants’ rights according to Article 6 ECHR. But on the other hand, it still remains debatable if Austria’s system of administrative review fulfils the requirements that are normally attributed to a Rechtsstaat. Although some problems will be alleviated by the proposed amendment to the constitution which promises to introduce state administrative courts, this particular issue will not be addressed. C.  The Constitutional Court As already noted, some of the powers of the Constitutional Court derive from its origins as a successor to the nineteenth century Imperial Law Court. The Constitutional Court is, therefore, still equipped with powers that do not necessarily have to be exercised by a constitutional court.61 The Constitutional Court, as it exists, is somehow hybrid in nature. It basically acts as a civil law court when it decides on pecuniary claims on territorial corporate bodies (Kausalgerichtsbarkeit), although these claims are (formally) grounded in public law. It acts as a criminal court in all impeachment trials in which the Constitutional Court pronounces on suits that predicate the constitutional responsibility of the highest federal and state authorities for legal contravention culpable ensuing from their official activities. These law suits do not play a significant part in the jurisprudence of the court. Actually, only three cases can be found – two in the First Republic, one in the Second – in which State Governors were sued by the Federal Cabinet for allegedly having ignored its direction.62 These cases all reveal tensions between the political camps but the legal questions involved are of no specific constitutional interest. Many other responsibilities of the Constitutional Court could be exercised by an administrative court. The review of ordinances is a good example. This works in a similar fashion to the review of laws, often not requiring constitutional considerations and so this jurisdiction could easily be given to the Administrative Court. However, during the monarchy all courts had the power to review ordinances. This power was only centralised with the introduction of the republican constitution. 61  See also A Gamper and F Palermo, ‘The Constitutional Court of Austria: Modern Profiles of an Archetype of Constitutional Review’ (2008) 2 Journal of Comparative Law 64. 62   VfSlg 8/1921, 206/1923, 10510/1985.

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The Constitutional Court’s competences to review administrative rulings for an alleged infringement of a constitutionally guaranteed right or an alleged infringement of a substantive right by an illegal ordinance, an unconstitutional law or an unlawful international treaty, can be seen as a special form of administrative review. Although this power ensures the implementation of fundamental rights under the current system, it has been proposed to strip the court of this competence.63 However, as this would only make sense if the Constitutional Court were to be allowed to review the decision of the Administrative Court, it would have meant completely changing the system of administrative review in face of the resistance of the Administrative Court. Therefore, plans were dropped accordingly. The Constitutional Court may review a court’s decision only in the case of the newly established asylum court. Further, the Constitutional Court may resolve conflicts of responsibilities that largely stem from the current system of administrative review. Apart from that, it has jurisdiction to pronounce on challenges to the election of the Federal President and to elections to popular representative bodies (such as the National Council), the European Parliament (as long as it relates to the Austrian elections to the European Parliament, of course), to the constituent authorities of statutory professional associations and others. Although the cases concerned may have a highly political impact, they do not necessarily involve specific constitutional considerations.64 The core element of the powers of the Constitutional Court, of course, is the responsibility to review laws. This power may relate to laws that have already been enacted, which the Constitutional Court consequently may rescind. But it may also relate to laws that are not yet enacted and, therefore, only exist as draft bills. In the latter case, the Constitutional Court may only determine which legislation is responsible for the enactment of such a proposed law.65 63  J Aichlreiter, ‘Entlastung des VfGH – eine unlösbare Aufgabe?’ (1980) Zeitschrift für Verwaltung 300; K Berchtold, ‘Die Entlastung der Gerichtshöfe des öffentlichen Rechts in Österreich’ (1984) Europäische Grundrechte Zeitschrift 385; R Müller, ‘Die Zuständigkeitsabgrenzung zwischen VfGH und VwGH’ in M Holoubek and M Lang (eds), Das verwaltungsgerichtliche Verfahren in Steuersachen (Wien, Linde, 1999) 391. 64   For further competences of the Constitutional Court relating to international treaties, agreements between the Federation and the states and between states respectively cf Arts 138a and 140a of the the Federal Constitution. 65   cf Art 138 para 2 of the Federal Constitution.



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With regard to draft bills, the Federal Cabinet and the State Cabinets are entitled to apply to the Constitutional Court to determine which cabinet is the responsible authority. The applicant must attach a draft of the envisaged legislative act and must request a decision on whether it may enact the legislation according to the constitutional provisions allocating powers between the Federation and the states. The only legal question involved in such proceedings is the interpretation of the provisions of the constitution that allocate powers between the Federation and the states. It, therefore, reveals the initial idea of establishing a Constitutional Court, which is equipped with the power to review laws: to settle disputes between the Federation and the states over the allocation of competences.66 The Constitutional Court summarises its decision in a statement (Rechtssatz) published in the Federal Law Gazette. The statement has the same effect as a constitutional provision and may only be amended by the federal parliament (on the basis of a two-thirds majority). As far as the Constitutional Court is authorised to examine laws that have been enacted, two different types of judicial review may be observed. One is referred to as the ‘abstract judicial review’ (abstraktes Normprüfungsverfahren) and relates to the review of a legal provision without connection to a pending law suit; the other is referred to as the ‘concrete judicial review’ (konkretes Normprüfungsverfahren) and relates to the review of a law if it is to be applied in a pending law suit. In any case, the Constitutional Court would not be restricted to merely review laws against those constitutional provisions that allocate power between the Federation and the states, but against any constitutional provision including fundamental rights. With regard to the so-called ‘abstract judicial review’, the Federal Cabinet is entitled to contest any state law and every State Cabinet may contest any federal law. Beyond that, federal laws can be contested by a third of the members of the National Council and state laws by a third of the members of a State Parliament provided that the respective constitution of the state entitles it to do so. With regard to those bodies which might initiate an ‘abstract review’ of a law, it seems to be obvious that such proceedings mainly result from severe disputes between the political parties. In this context it is interesting that the 1974 law on abortion was contested by the government of Salzburg,67 although it 66

  Walter et al, Bundesverfassungsrecht, n 10, 508ff.   cf VfSlg 7400/1974.

67

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neither jeopardised the federal structure, nor the state of Salzburg in particular. Rather the conflict was based on a deep ideological divide between the catholic-conservative camp and the Social Democrats. ‘Concrete review’ of a law or a legal provision may be performed on application by a second tier civil or criminal law court, by the Supreme Court, the Administrative Court, the Asylum Court, an Independent Administrative Tribunal or the Federal Procurement Authority, ex officio by the Constitutional Court itself or by an individual alleging direct infringement of his or her substantive rights. If a court or one of the aforementioned independent administrative authorities has ‘reservations’ (Bedenken) relating to the application of a certain law, in other words, if it seriously doubts whether a statutory provision is constitutional or lawful, it has the legal obligation to file an application with the Constitutional Court. As already mentioned, the parties of the pending law suit have no right to make such an application. A prerequisite for the admissibility of an application is that the contested law would have to be applied in a pending case to resolve a legal question. In general, the Constitutional Court leaves it to the applicant court or independent administrative authority to decide which norms are fundamental to the decisions. However, if it turns out in the course of the proceedings that the contested provision is of no relevance to the case, the Constitutional Court has to dismiss the application. In cases of ‘concrete judicial review’, as well as in cases of ‘abstract judicial review’, the application must detail the grounds on which the applicant challenges the constitutionality of the contested law. The Constitutional Court has established that it is only entitled to examine a contested law on the grounds expressed in the application. (This also holds for proceedings initiated ex officio by the Constitutional Court itself: in these proceedings it may only examine the law on the grounds detailed in its decision to review a law [Prüfungsbeschluss]). As a consequence, an application must be dismissed should the law not be unconstitutional on the grounds given, even if it may be unconstitutional on other grounds. But as there is no time limit for requests to rescind a norm, it is possible to file another application at any given time. Furthermore, the court has developed a number of highly flexible procedural or formal prerequisites that sometimes allow the court to accept or dismiss applications to rescind a law almost at will. For example, it is essential to determine exactly and correctly the subject of review (Prüfungsgegenstand), which may be an entire law or only a certain



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part (a single word, a sentence, a paragraph, several paragraphs etc) of it, in which the constitutional problem may be spotted. Failing to determine the subject of review correctly would lead to a dismissal of the application. Of course, the applicant may try again. In a similar way, the Constitutional Court has in a casuistic way established numerous procedural requirements that allow it to accept or dismiss a so-called ‘direct application’ (Individualantrag). A ‘direct application’ is filed by an individual person requesting the rescission of a statutory provision that directly affects her or his legal position. According to the jurisprudence of the court, the law must thus actually interfere with the person’s rights and not only de facto affect her or his interests. The Constitutional Court has, thus, dismissed applications when a law only affected the applicant’s economic position (not withstanding that the constitution guarantees a right to free employment)68 or the function of the office she or he held. Because interference by the contested norm must be direct, which means that the norm must have become operative for the applicant without the delivery of a legal decision or the issuing of a ruling, the Constitutional Court has established a further procedural prerequisite referred to as ‘unreasonableness of detour’ (Umwegsunzumutbarkeit). This allows an application only to be admissible, if the applicant has no other reasonable recourse to legal action to submit objections to the constitutionality of the law to the Constitutional Court. The possibility of proceedings before a court or an administrative authority generally represents such a legal action. In short, the court has developed a rich case law69 that makes it basically unpredictable whether an application will be admissible or not. It may be argued that it has introduced flexible criteria which allow it to dismiss cases on formal grounds which it does not want to hear. But as there is no time limit for applications, applicants may try again and again. Whether this system of centralised constitutional review is still efficient and offers instant remedies in accordance with the principle of Rechtsstaat remains highly debatable. If a law (or the contested part of it) is found to be unconstitutional, the Constitutional Court rescinds it. Rescission is published in the designated form (for instance, in the Federal Law Gazette). As a rule, 68   cf M Pöschl, ‘Wirtschaftliche Interessen und Subjektive Rechte’ in K Arnold et al (eds), Recht, Politik, Wirtschaft – Dynamische Perspektiven (Wien, Springer, 2008) 495. 69   G Holzinger and M Hiesel, Verfahren vor den Gerichtshöfen des öffentlichen Rechts, Vol 1: Verfassungsgerichtsbarkeit, 3rd edn (Wien, Manz, 2009) 437ff.

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rescission becomes effective at the close of the day of publication. The Constitutional Court may, however, set a time limit for rescission, which in the case of a parliamentary statute may not exceed 18 months. If a time limit is set, rescission comes into force only after expiry of the specified period. The rescinded law cannot be contested within this period. This triggers the sometimes problematic effect that for this period of time a provision that has already been found to be unconstitutional remains applicable. Unless the Constitutional Court pronounces otherwise, rescission is not retroactive, the case in point (Anlassfall ) being an exception. Over the decades, the Constitutional Court has made extensive use of its power to rescind laws. The latest statistics available show that between 2001 and 2008 in 792 cases the Constitutional Court rescinded a legal provision or declared a legal provision that already had been repealed by parliament to be unconstitutional. Again, the statistics are somehow misleading as they count the cases in which applications were successful rather than reveal the number of legal provisions involved. As it is not unusual that several cases pertain to one and the same legal provision, the number of legal provisions found to violate the constitution was significantly smaller. The 2007 statistics of the court, which might serve as an example, listed 55 cases of successful applications. The number of legal provisions found to be unconstitutional amounted to (only but still) 23. Although the Constitutional Court may review laws under any possible constitutional aspect, some provisions play an overwhelming part in the jurisprudence of the court. These are the constitutional provisions pertaining to the allocation of power between the Federation and the states which had a dominant role especially in the 1950s and 1960s, further Article 18 of the Federal Constitution providing for sufficiently clear and detailed laws and, almost above all, the principle of equality. Out of the 23 legal provisions rescinded or declared unconstitutional in 2007, 12 were found to violate the principle of equality, four not to be sufficiently clear and detailed, two to upset the allocation of competences and only five to violate other provisions. Although the statistics are taken from one year only,70 they nevertheless seem to be indicative of the jurisprudence of the Constitutional Court. 70   I would like to thank Sarah Hillisch for scrutinising hundreds of court rulings to establish these figures.



Powers and Policies of the Highest Courts and the Constitution  203

As long as the Constitutional Court adhered to the traditional, retrospective methods of reading the constitution, its competence to review laws was more or less accepted, at least after WWII. Only when it started to promote freedom rights and introduced the principle of proportionality in the 1980s,71 did the power of the court to review laws come to be questioned once again, especially with regard to the democratic principle enshrined in the constitution. Politicians and academics not only criticised the result of the court’s considerations – sometimes for obvious reasons, of course – but also the style of the court’s reasoning which mainly lacks of transparency.72 Neither the identity of the judge who was initially responsible for the draft version of the ruling is disclosed nor is it revealed whether the ruling was based on a unanimous or on a split decision. It is not or at least not officially made transparent who was in favour of the ruling and who objected to it therefore and, consequently, it is impossible for judges to publish a dissenting opinion. The introduction of such an instrument has already been discussed on several occasions and demanded by many academics.73 Nevertheless, the idea has been rejected so far as judges of the court feared that this would only lead to political parties exercising pressure on ‘their’ members to publish such a dissenting opinion in politically controversial cases. If political parties were successful with such an approach, it would not only reveal the attitude of the political parties towards independent judges, but also portray the personalities appointed to Austria’s highest courts in a bad light. It may, therefore, be no surprise that constitutional court judges in Austria literally hide behind the institution of the court when they address themselves as ‘the Constitutional Court’ in the court’s case law thus pretending that the court is a completely impersonal institution enjoying almost imperial authority and dignity. 71

  cf chapter seven.  G Schernthanner, ‘Der Verfassungsgerichtshof und seine Unabhängigkeit’ (2003) Österreichische Juristenzeitung 621. 73   F Ermacora, ‘Reform der Verfassungsgerichtsbarkeit’ in B-C Funk et al (eds), Staatsrecht und Staatswissenschaften in Zeiten des Wandels – Festschrift Adamovich (Wien, Springer, 1992) 49, 51; R Machacek, ‘Die Einrichtung der „Dissenting Opinion“ im internationalen Vergleich – Einführung des Minderheitsvotums am Verfassungsgerichtshof’ (1999) Journal für Rechtspolitik 1; H Mayer, ‘Die Einführung der “dissenting opinion” am Verfassungsgerichtshof aus Sicht der österreichischen Verfassungslehre’ (1999) Journal für Rechtspolitik 30. 72

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After Austria’s accession to the European Union, it may be observed that, as a result of this accession, the powers of the Constitutional Court were significantly curtailed. Before 1995, the court had the power to review every law that was valid in Austria. After the accession to the European Union, an ever increasing part of laws valid in Austria can no longer be reviewed by the Constitutional Court. All the European regulations and all laws implementing European directives are removed from the court’s jurisdiction. Laws implementing European directives may only be subject to scrutiny insofar as the directives provide a leeway for Member States to implement a directive. The Constitutional Court thus would insist that this leeway may only be used in harmony with the Austrian Constitution.74 The powers of the Constitutional Court have not only been curtailed as a result of Austria’s accession to the European Union, but also by domestic legislation. As long as the People’s Party and the Social Democrats together enjoyed a two-thirds majority in parliament, it became a habit to enact constitutional provisions for the sole purpose of preventing the court from scrutinising a law. This was done not only as a reaction to a court ruling promoting a freedom right or the principle of equality75 but sometimes also to prohibit a court ruling.76 Finally, in 2009, when the Asylum Court was established, the constitution provided for the review of the Asylum Court’s decisions by the Constitutional Court, but not by the Administrative Court. This stood in sharp contrast to the review of the decision of the Federal Asylum Tribunal which could be undertaken by both public law courts. As a consequence, asylum seekers losing their case regularly file applications with the Constitutional Court. The Constitutional Court is almost flooded by applications of asylum seekers, thus leaving fewer resources to review laws. Therefore, it might be stated that in the current situation the Constitutional Court is developing into a ‘super’ administrative court while the substantial constitutional questions are decided either by the ECJ or by the ECtHR.

74   K Korinek, ‘Die doppelte Bedingtheit von gemeinschaftsrechtsausführenden innerstaatlichen Rechtsvorschriften’ in S Hammer, A Somek, M Stelzer, B Weichselbaum (eds), Demokratie und sozialer Rechtsstaat in Europa – Festschrift Öhlinger (Wien, WUV, 2004) 131. 75  See chapter seven. 76   VfSlg 15373/1998.



Further Reading  205 VI. Conclusion

In chapter one doubts have been raised whether the Austrian constitution fully meets the requirements of a Rechtsstaat (even and only in a formal sense) with regard to its judicial system which largely has been developed under the monarchy. As it was emphasised, the principle of Rechtsstaat has not been explicitly mentioned in the constitution but has been claimed by legal scholars to silently underpin the constitution. Thus, the court’s system has never been systematically reviewed and overhauled respectively from the point of view of the principle of Rechtsstaat. Austria’s system of administrative review clashed with Article 6 ECHR as it did not sufficiently provide for independent and impartial tribunals to hear cases on civil rights and obligations and criminal charges. This became only apparent in the light of the jurisprudence of the ECtHR. More independent authorities had to be established – the introduction of state administrative courts which seems to be desirable to meet the requirements of Article 6 ECHR on a more systematical basis, on the other hand, has been blocked for decades. Austria may pride itself for the worldwide first effective introduction of a centralised constitutional review. But the problems emerging from the rather archaic system of three highest courts operating on the same level which triggers overlaps and loopholes as well as the restriction on the access to the Administrative Court have not yet been addressed properly. The position of the Constitutional Court has severely declined after Austria’s access to the European Union not only for external but also for domestic reasons. Further Reading Adamovich, LK, ‘Der Verfassungsgerichtshof der Republik Österreich. Geschichte – Gegenwart – Visionen’ (1997) Journal für Rechtspolitik 1. Gamper, A and Palermo, F, ‘The Constitutional Court of Austria: Modern Profiles of an Archetype of Constitutional Review’ (2008) Journal of Comparative Law III/2 64. Grabenwarter, C, Verfahrensgarantien in der Verwaltungsgerichtsbarkeit. Eine Studie zu Artikel 6 EMRK auf der Grundlage einer rechtsvergleichenden Untersuchung der Verwaltungsgerichtsbarkeit Frankreichs, Deutschlands und Österreichs (Wien, Springer, 1997).

206  Jurisdiction Kelsen, H, ‘Judicial Review of Legislation. A Comparative Study of the Austrian and the American Constitution’ (1942) 4 Journal of Politics 183. ——, ‘Wer soll der Hüter der Verfassung sein?’ (1931) 6 Die Justiz 576. Korinek, K, ‘Die Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen’ (1981) 39 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 7. Machacek, R (ed), Verfahren vor dem VfGH und vor dem VwGH, 6th edn (Wien, Manz, 2008). ——, Austrian Contributions to the Rule of Law (Kehl, NP Engel Verlag, 1994). Öhlinger, T, ‘Constitutional Review. The Austrian Experience as seen from a Comparative Perspective’ (1998) 53 Zeitschrift für Öffentliches Recht 421. Olechowski, T, Der österreichische Verwaltungsgerichtshof (Wien, Verlag Österreich, 2001). ——, Die Einführung der Verwaltungsgerichtsbarkeit in Österreich (Wien, Manz, 1999). Walter, R, ‘Die Gerichtsbarkeit’ in Schambeck, H (ed), Das österreichische Bundes-Verfassungsgesetz und seine Entwicklung (Berlin, Duncker & Humblot, 1980) 443.

7 Fundamental Rights

O

Introduction – General Aspects – Binding Effect on the Administration – Binding Effect on the Legislation – Binding Effect on the Jurisdiction – Conclusion I. Introduction

I

n its first part, this chapter focuses on the development of fundamental rights protection in Austria. It will emphasise that the idea of human rights was already promoted by the 1811 Civil Law Code and that a fundamental rights charter, basically binding on the administration, was enacted in 1867. While the 1920 Federal Constitution did not add to the substance of the fundamental rights charter, it nevertheless enhanced its implementation. Political negotiations on a substantive reform of the 1867 charter have remained unsuccessful so far; the only major step forward was taken by ratifying the ECHR. Further, the chapter will discuss the character of fundamental rights in Austria. Although fundamental rights are mainly seen as ‘defensive rights’, Austria established one of the most comprehensive and effective social welfare systems even without having enacted social rights on a constitutional level. The chapter will also deal with the cautious approach civil law courts have taken to acknowledge a third party effect of fundamental rights. In its remaining part, the chapter will be devoted predominantly to analysing the jurisprudence of the Constitutional Court regarding fundamental rights protection. The court’s general approach will be discussed and the binding effect of fundamental rights on the administration and the legislation will be thoroughly analysed. Hereby, the tests applied

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by the court will be introduced and special light will be shed on the proportionality test and the objectivity test. II.  General Aspects

A.  History and Character of Fundamental Rights in Austria As it has already been made clear in chapter one, Austria was not among the first countries in the world to enact a charter of fundamental rights. Nevertheless, the philosophy of the age of enlightenment and its idea that all men (and women) were born free and equal that inspired the various declarations of fundamental rights in the late eighteenth century played a part in Austria’s legal system at a fairly early stage. An ‘enlightened’ absolute monarchy ordered the drafting of a new civil law code. This code was tried out in the province of West-Galicia before it was enacted throughout the empire, which was finally completed in 1812. It has remained the core element of Austria’s civil law system ever since. This civil law code contains a provision according to which every human being has ‘inborn’ or ‘inherent’ rights which are ‘evident by reason’. Consequently, every human being has to be regarded as a person and, therefore, every form of slavery was abolished.1 The semantic similarity to earlier fundamental rights declarations, such as the 1776 Virginia Bill of Rights, seems to be evident. Although this provision of the 1811 Civil Law Code may be addressed as a constitutional provision in substance, Austrian public lawyers will insist that within the system of the step pyramid, it does not have the rank of a constitutional law and, therefore, simple laws may not be measured against it. The 1811 Civil Law Code being based on the ideas of the age of enlightenment did not prevent the monarch from establishing a police state, especially after the 1814–15 Viennese Congress. But the discussion on fundamental rights was thereby not silenced and it reached its first peak in the aftermath of the 1848 March Revolution. The Kremsier Reichstag2 debated intensively drafted versions of possible bills of fundamental rights. Although none of these versions were ever enacted, 1

 See art 16 of the Civil Law Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).  See chapter one.

2



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they are still interesting from a linguistic and philosophical point of view as their phrasing reveals the influence of the political ideas of John Locke and/or Immanuel Kant. Two decades later, the language would be much more sober and ‘juridical’, losing its philosophical tone and, thus, already establishing the style of Austrian constitutional law. In a first step towards curtailing the police state, two laws were enacted in 1862: a Law on the Protection of Personal Liberty (Gesetz zum Schutz der persönlichen Freiheit, RGBl 87/1862), that basically implemented the ‘habeas-corpus’ rule, and a Law on the Protection of the Rights of the Home (Gesetz zum Schutz des Hausrechts, RGBl 88/1862), that contained a universal right not to deliberately have one’s home searched without a proper warrant. The latter is still in force today. In 1867, the Basic Law on the General Rights of Nationals (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger, RGBl 142/1867) followed. It comprised a charter of classic freedom rights, such as the freedom of speech, of religion, of assembly, of association, of employment and a property clause, as well as a general principle of equality and an equal right to access public functions. The main task of this charter was to limit the power of the executive branch of the (monarchical) government. Above that, it was already clear that fundamental rights should serve as principles for the drafting of legislation.3 Hence, the procedural guarantees of these rights were not really elaborate. The Imperial Law Court, which was entrusted with the responsibility of safeguarding the ‘political’ rights of this charter against the administration (other rights like those derived from the property clause were exempt from its jurisdiction)4, did not have the power to repeal administrative rulings but only to declare the violation of a fundamental right. As no court had the power to review laws, it was up to the emperor and the consenting parliament to decide in which way fundamental rights could serve as guiding principles of legislation. The electoral system guaranteed that the requirements of the upper and middle classes were effectively met. The social conflict between upper and middle class people, on one side, and working class people, on the other, therefore, remained outside of parliament. 3  M Stelzer, Das Wesensgehaltsargument und der Grundsatz der Verhältnismäßigkeit (Wien, Springer, 1991) 237; Die neue Gesetzgebung in Österreich – Erläutert aus den Reichsrathsverhandlungen, Vol I (Wien, 1868) 310. 4   Art 5 Basic Law.

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When the Federal Constitution was drafted in 1920, there were discussions on the creation of a new charter of fundamental rights. Mainly because of a possible inclusion of social rights the political parties could not agree upon a new fundamental rights code. Thus, the 1867 Basic Law on the General Rights of Nationals remained in force. To this day, this basic law still is a core element of the domestic guarantees of fundamental rights. Even after 1945, it was obviously impossible to redraft the 1867 charter. In the 1960s, 1970s and 1980s, further attempts were made as a Fundamental Rights Reform Commission (‘Grundrechts­ reform­kommission’) was established. Its comprehensive proposals only led to a minor reform: in 1988, the right to personal liberty was redrafted. The Constitutional Convention took up the matter again and recommended a new charter including social rights. Although it seems that this charter was supported by both the Social Democrats and the Conservatives at one point, it is still unclear if and how the recommendations of the Constitutional Convention will lead to a new charter of fundamental rights. In any event, the Federal Constitution of 1920 was of major importance for the development of the safeguarding of fundamental rights because it assigned the newly created Constitutional Court the power to repeal administrative rulings if the appellant alleged an infringement of a ‘constitutionally guaranteed right’. It is noteworthy that the Federal Constitution did not speak of ‘fundamental rights’. Austrian constitutional law uses the term ‘fundamental right’ only on very rare occasions. It mostly speaks of ‘constitutionally guaranteed rights’, implying a much more formal concept and meaning a substantive right guaranteed by a constitutional law. There are actually constitutional laws that have little in common with ‘fundamental’ rights. The personal right to membership of the Chamber of Labour, for example, is not a fundamental legal position, but as the provision ranks on a constitutional level (for reasons resulting from the allocation of powers) it is a ‘constitutionally guaranteed right’. In terms of substance, the 1920 Constitution added only a little to the 1867 charter. Nevertheless, the general principle of equality was enshrined in the 1920 document (Art 7), thus showing that the republic was built on the equality of all citizens and any privilege stemming from birth, gender, states class or religious denomination was abolished. Further, Article 83 of the Federal Constitution established a right ‘not to be deprived of one’s lawful judge’, thus safeguarding the jurisdiction of courts as well as administrative authorities when deciding on indi-



General Aspects  211

vidual cases. Both rights play a prominent part in the jurisprudence of the Constitutional Court – probably because they are guaranteed by the core document of the 1920 Constitution and not by an external provision. The Constitutional Court even holds the view that the principle of equality is also an important part not only of the system of fundamental rights, but also of the principle of democracy. Its core elements could therefore not be abolished but in the process of a ‘total revision’ could trigger a mandatory referendum.5 As the court’s view was expressed in an ‘obiter dictum’ it still remains unclear which core elements of the principle of equality the court may identify. A large and initially unforeseeable step in the development of fundamental rights was taken when Austria accessed the European Convention on Human Rights in 1958. The ECHR was basically meant as an answer to the darkest period of European history, when basic principles of humanity were violated by the Nazi regime. During the time when Austria was part of the German Reich,6 fundamental rights were effectively suspended. It may therefore also be seen as a reaction to this period that in Austria, the ECHR was adopted at the rank of constitutional law and was even made directly applicable. As a consequence, any complaint filed with the Constitutional Court can invoke the guaranteed rights of the European Convention on Human Rights. But as Austria accepts the judgments of the ECtHR, which is entitled to enforce the ECHR guarantees, the Constitutional Court, although initially reluctant, has more or less followed the precedents of the ECtHR in its development of fundamental rights doctrine. This has also had implications for the law guaranteeing domestic rights, the 1867 Basic Law on the General Rights of Nationals. Apart from these two main charters, the rights enshrined in the 1920 Constitution, the 1862 Law on the Protection of the Rights of the Home and the 1988 Law on the Protection of Personal Liberty, quite a few provisions exist additionally guaranteeing various fundamental rights.7 The 1919 State Treaty of Saint Germain, for instance, already obliged the Republic of Austria to treat minorities equally and not to discriminate against them. ‘Minorities’ were groups of Austrian citizens who 5

  VfSlg 15373/1988.  See chapter one. 7   W Berka, Die Grundrechte – Grundfreiheiten und Menschenrechte in Österreich (Wien, Springer, 1999) 32ff. 6

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belonged to non-German speaking ethnic groups and who remained in Austria after the collapse of the multi-ethnic monarchy. Article 7 of the 1955 State Treaty of Vienna attributed special substantive rights to the members of the ethnic groups of Slovenians and Croatians in Carinthia, Burgenland and Styria.8 This article has a constitutional status and is enforceable by the Constitutional Court.9 The rights include the right of elementary instruction in the Slovenian and Croatian languages and the existence of a certain number of secondary schools. In the administrative districts of Burgenland, Carinthia and Styria with Croatian, Slovenian or mixed populations, Croatian or Slovenian as appropriate is permitted in addition to German as an official language before courts and administrative authorities. In these districts the topographical descriptions and inscriptions (such as town signs) have to be bilingual (German and either Slovenian or Croatian).10 Further, Article 1 of the Data Protection Act, which is a constitutional provision, stipulates a fundamental right to data protection. In addition to Article 7 of the Federal Constitution a 1973 constitutional law transformed the International Convention on the Elimination of All Forms of Racial Discrimination into the Austrian legal system. According to the jurisprudence of the Constitutional Court, it provides for a substantive right not to be discriminated against on the basis of race, colour, descent or national or ethnic origin. This constitutional provision plays a significant part in the jurisprudence of the Constitutional Court pertaining to aliens,11 especially immigrants and asylum seekers, who may not invoke the general principle of equality, which initially was only reserved for nationals. This classic distinction between rights that relate to nationals and rights that relate to all human beings irrespective of their nationality can     8   I Reiter, ‘Der Staatsvertrag und die Nationalen Minderheiten’ in T Olechowski (ed), Fünfzig Jahre Staatsvertrag und Neutralität (Wien, WUV, 2006) 95.     9  See for instance VfSlg 16404/2001. 10  These obligations, which arose out of the state treaty, have been implemented by a number of ordinances and laws. Recent rulings of the Constitutional Court state that a population is mixed if the share of minorities is not negligible and in any case if it exceeds 10 per cent (VfSlg 16404/2001, 17733/2005). The Constitutional Court’s rulings suggest that some of the obligations of the state treaty have yet to be implemented, even though more than 50 years have gone by since the treaty was concluded. 11  K Korinek, ‘Der gleichheitsrechtliche Gehalt des BVG gegen rassische Diskriminierung’ in S Griller, K Korinek and M Potacs (eds), Grundfragen und aktuelle Probleme des öffentlichen Rechts. Festschrift für Heinz Peter Rill (Wien, Orac, 2005) 183; eg VfSlg 14191, 17026.



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still be found in Austria’s domestic fundamental rights guarantees, although it is nowadays partly overridden by EU law. Rights that were only guaranteed to nationals have to be extended to all EU citizens as discrimination between nationals and other EU citizens is prohibited by the Treaty of the European Union.12 Legal bodies may also hold fundamental rights if the rights are suitable for such bodies (obviously, they can be protected by the property clause, but not by the right to family). It is a specific feature of the Austrian legal system that territorial corporate bodies can also hold fundamental rights. Thus, a state may sue the Federation in case of an expropriation claiming that its property rights have been violated.13 The Austrian system of safeguarding fundamental rights as it is enshrined in the constitution still reflects the classic approach according to which the state should refrain as far as possible from interfering with fundamental rights and may only do so if there is sufficient justification. Correspondingly, the holder of a fundamental right is entitled to challenge state actions that might interfere with this right. State actions, mostly administrative acts (but also laws), may be rescinded by the Constitutional Court if they are held to violate those rights. Thus, the holder of a fundamental right has a defence against state intervention.14 German and Austrian fundamental rights doctrine accordingly refer to the ‘defensive’ function of freedom rights or sometimes to ‘defensive rights’, thus drawing on a term introduced by Georg Jellinek’s nineteenth century theory on substantive rights regarding the relationship between a state and its citizens.15 The doctrine of ‘defensive rights’ implies that a society should largely satisfy its economic needs by a ‘market’ in which the state is obliged not to interfere, but the functioning of which it should guarantee. Some Austrian legal scholars still emphasise that the fundamental rights guaranteed in Austria form a liberal principle which only may be revised by a mandatory referendum.16 12   Art 2 and Art 3 para 3 (ex Art 2 TEU) of the consolidated version of the Treaty of the European Union (known as Lisbon Treaty), that consolidated the Treaty on the European Union (1992 Maastricht TEU) and the Treaty on the Functioning of European Union (TFEU, 1957 Rome, former TEC). 13   cf eg VfSlg 11828/1988. 14   W Berka, Verfassungsrecht, 3rd edn (Wien, Springer, 2010); R Walter, H Mayer and G Kucsko-Stadlmayer, Bundesverfassungsrecht, 10th edn (Wien, Manz, 2007) 622. 15   G Jellinek, System der subjektiven öffentlichen Rechte, 2nd edn (Tübingen, Mohr, 1919) 81ff. 16   Walter et al, Bundesverfassungsrecht, n 14, 89.

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Nevertheless, it is clear that the defensive function alone does not force states to refrain from interfering with rights: the whole concept of ‘defensive rights’ must be supported by a system of courts upheld and financed by the state. It was probably the German constitutional doctrine and, consequently, the German Federal Constitutional Court that first suggested that fundamental rights obliged the state not only to refrain from interfering with freedom rights, but also to protect them (Schutzpflichten)17 and, moreover, to take measures to make freedom rights enjoyable for everybody (Leistungspflichten).18 The background for this suggestion lies in a more philosophical debate that focused on the question whether fundamental rights guarantee that citizens are legally free to make choices or intend citizens to be de facto free to enjoy their rights. If, for example, somebody owns an apartment that is contaminated by toxic gas from a nearby factory, he or she is still legally free to use it de facto; however, he or she will have to leave in order to survive. As long as only legal freedom falls within the scope of fundamental rights, states have to take no particular actions in such cases. The situation is different if human rights are designed to guarantee not only that people are legally free but that they are de facto free to enjoy their rights. As usual, the answer to this question is not given in the bill of rights but lies in the theory that is supplied to interpret it. Within the jurisdiction of the ECtHR, it has been agreed that the rights laid down in the ECHR may also oblige states to take protective measures, although it is not quite clear to what extent. In the example of the contaminated apartment, the ECtHR ruled that according to Article 8 ECHR it had been the duty of the state involved at least to inform the owner of the apartment in time.19 As far as the rights enshrined in the ECHR comprise obligations of the state not only to refrain from interfering, but also to actively protect the freedom to enjoy them de facto, such obligations are part of the Austrian legal system. Apart from that, it remains an open academic discussion, largely influenced by the German constitutional doctrine, if and to what extent fundamental rights might entitle their holders to pro17   eg BVerfGE 39, 1 (41) – Schwangerschaftsabbruch I; BVerfGE 46, 160 – Schleyer; P Unruh, Zur Dogmatik der grundrechtlichen Schutzpflichten (Berlin, Duncker & Humblot, 1996). 18  See eg M Sachs, ‘Vorbemerkungen zu Abschnitt I’ in M Sachs (ed), Grundgesetz Kommentar, 2nd edn (München, C.H.Beck, 1999) 93. 19   Lopez Ostra v Spain, Series A no 303 C (1994) 20 EHRR 277.



General Aspects  215

tective measures.20 It would also be open to discussion against which criterion it might be measured and whether the state has met its obligations or not. Again, the German Federal Constitutional Court has strongly influenced this debate by suggesting that state measures taken to protect fundamental rights have at least to be ‘not insufficient’ (Untermaßverbot).21 Nevertheless, it is clear that in Austria there is only limited possibility for legal enforcement of a state’s duty to take measures and its obligation to protect fundamental rights. As the Constitutional Court may only rescind laws that have been enacted, there is basically no legal remedy to force the legislator to act in case he deliberately remains inactive. This may make it impossible to enforce the state’s duty to take measures and thus its – possible – obligation to protect fundamental rights. B. Social Rights and the Social Welfare System The Austrian constitution comprises only freedom rights, equality rights, political rights, procedural and minority rights: neither are social rights nor is at least a social welfare state principle guaranteed at a constitutional level (unlike the Bonner Basic Law, which provides in its Article 20 for the Federal Republic of Germany being a social welfare state). The European Social Charter, which was ratified by Austria (BGBl 460/1979 in the applicable version), was only accorded the status of simple law. The same applies to the UN Convention on Social and Cultural Rights (BGBl 590/1978), which is not even directly applicable. Again, these findings underline the impression that Austria’s constitution implements a liberal doctrine fitting a market-oriented society. Strangely however, the Austrian legal system follows the idea of a social welfare state rather than a liberal market-oriented society. In the light of the jurisprudence of the Constitutional Court, freedom rights did not prevent Austria from establishing one of the most elaborate social welfare systems. More than 98 per cent of the people working and living in Austria participate in a mandatory social insurance scheme covering risks of 20

 See eg M Holoubek, Grundrechtliche Gewährleistungspflichten (Wien, Springer, 1997). 21   BVerfGE 88, 203 – Schwangerschaftsabbruch II.

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poor health and providing for insurance against certain accidents, unemployment and old age.22 The numerous social welfare institutions are organised as autonomous (‘self-administering’) bodies. Employees and employers share equally into the employee’s contributions. They are deducted from the employee’s wages by the employer, who has to transfer the money to the social insurance institution adding the employer’s share. Employees, therefore, are hardly aware of the amount of money that is contributed on their behalf to the social welfare systems. The different social welfare institutions represent different systems – different rates and different benefits apply.23 Further, depending on the amount of their wages or salaries, people are entitled to various transfers. A recent study24 has revealed that this system effectively manages a re-distribution of economic wealth. As transfers are paid by the Federation, as well as by the states, such a study had to focus on the situation in a particular state, which in this case was Styria. The study compares the economic situation of three families consisting of two adults and two children with assumed monthly earnings of €950, €1,900 and €3,800 respectively. The lowest earning family is entitled to transfers which will lift their monthly income up to €2,817. The family earning €1,900 may receive transfers to boost their monthly income into the region of €3,217, while the highest earning family in this example falls back to a mere €3,250. Although the monthly earnings of the poorest and the richest family differed by 300 per cent before the transfers were made, their monthly net income is almost equal. The study points out that although it is unclear whether all families actually claim the social transfers they are entitled to, in many cases it is economically unattractive to work harder or get a better education as passing certain income thresholds may trigger the loss of transfers, which normally would not be compensated by the pay rise as a marginal tax rate of more than 100 per cent may apply. As federal and state transfers are neither transparent nor coordinated, the Conservatives demanded only recently the introduction of a transfer account, thus revealing the transfers an individual or a family effec22

15.

 T Tomandl, Grundriss des österreichischen Sozialrechts, 6th edn (Wien, Manz, 2009)

23

 Tomandl, Grundriss des österreichischen Sozialrechts, ibid, 32f.  F Prettenthaler and C Sterner, ‘Eine Steuerreform, die nicht das gesamtstaatliche Steuer- und Transfersystem Österreichs harmonisiert, verdient diesen Namen nicht’ (2008) Gesellschaft und Politik 15ff. 24



General Aspects  217

tively received. The idea was immediately rejected by the Social Democrats. Nevertheless, the incumbent Federal Cabinet seems to have agreed on the introduction of such an instrument. C.  Third Party Effect There has been an intensive discussion – again mainly influenced by the German legal doctrine25 – which has centred on the question of whether and to what extent fundamental rights should be involved in relationships subject to private law (the so-called ‘horizontal’ or ‘third party effect’ of fundamental rights).26 In any legal relationship between the state and citizens, it is clear today that the state must respect the citizen’s fundamental rights. Things are slightly more complex with respect to relationships between citizens. Some historical texts, such as the French declaration of human rights presumed the third party effect of fundamental rights. Obviously, it was still more devoted to the philosophical background of fundamental rights which emphasises that the guarantee of freedom and equality works in every direction. As already mentioned above, the 1867 charter of fundamental rights is much more a legal document, being less philosophical. Apart from that, at the time the bill of rights was enacted in Austria, the civil law code had already implemented the ideas of freedom and equality and it was only necessary to additionally restrict the power of the government. Still, the then debates suggest that the 1867 fundamental rights were also guiding the entire legislation as principles.27 It is mainly because of this legal situation and the historical context that the Austrian legal doctrine has adopted a rather cautious approach to the idea that fundamental rights may have a third party effect. As citizens cannot be sued before the Constitutional Court and the Constitutional Court has no power to review the decision of ordinary 25  eg R Alexy, A Theory of Constitutional Rights (Oxford-New York, Oxford University Press, 2002) 351ff; J Schwabe, Die sogenannte Drittwirkung der Grundrechte (München, Goldmann, 1971). 26  Berka, Die Grundrechte – Grundfreiheiten und Menschenrechte in Österrreich, n 7, 128ff; R Novak, ‘Zur Drittwirkung der Grundrechte – Die österreichische Lage aus rechtsvergleichender Sicht’ (1984) Europäische Grundrechte Zeitschrift 133ff. 27  F Lehne, ‘Grundrechte achten und schützen? 1862 und 1867’ (1986) 108 Juristische Blätter 341ff and 424ff.

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civil law courts, it is therefore up to the civil law courts to give third party effect to fundamental rights. As already shown in chapter six, the Supreme Court has accepted such an effect at least in some cases. According to the legal doctrine, as well as the case law of the Supreme Court, citizens may not sue each other merely on the ground of an alleged violation of a fundamental right.28 Arguments based on fundamental rights are only acceptable if they are made in connection with civil law provisions that are open to an interpretation which respects fundamental rights. The ‘public morals’ clause of Article 879 of the Austrian Civil Law Code (ABGB), for instance, could be determined in the light of fundamental rights. (Thus, a contract could be void under this clause if it ignores the principle of equality, which would be the case if it is severely unbalanced in allocating rights and obligations between the contracting parties). In reality, however, the third party effect of fundamental rights does not play an important part in Austria’s legal system. In theory, of course, each civil law dispute has the potential to become a conflict over fundamental rights. Disputes concerning tenancy agreements, for example, may involve (constitutional) property rights on both sides which should be duly balanced. Such procedures would over-simplify the legal approach and would definitely not add to legal certainty.29 Civil law doctrine has been distinctively elaborated over hundreds of years based on a civil law code that was already inspired by the enlightened ideas of free and equal human beings, which also underpins the concept of fundamental rights. Unlike in Germany, there is no constitutional review of a civil law court’s decision and in consequence, civil lawyers do not feel the need to systematically consider fundamental rights. Nevertheless, adjusting civil law in favour of fundamental principles may make sense in cases where fundamental rights positions are nearly entirely ignored.30

28

  eg F Bydlinski, ‘Thesen zur Drittwirkung von Grundrechten im Privatrecht’ in R Rack (ed), Grundrechtsreform (Wien, Böhlau, 1985) 173ff; H Mayer, ‘Nochmals zur sogenannten “Drittwirkung” der Grundrechte’ (1992) Juristische Blätter 768ff. 29  See the harsh criticism of the jurisprudence of the German Federal Constitutional Court by G Roellecke, ‘Das Mietrecht des BVerfG’ (1992) Neue Juristische Wochenschrift 1649. 30   M Stelzer, ‘Stand und Perspektiven des Grundrechtsschutzes’ in Österreichische Parlamentarische Gesellschaft (ed), 75 Jahre Bundesverfassung (Wien, Verlag Österreich, 1995) 583, 610f.



General Aspects  219

D.  General Approach of Reading Fundamental Rights Over the years, the Constitutional Court has developed and/or adopted several tests to scrutinise laws (and administrative rulings) against the benchmark of fundamental rights. These tests vary depending on the specific right or the specific category of rights involved. General tests have been designed for freedom rights and the principle of equality. In the case of other rights, especially procedural rights, singular tests apply meeting the specific demands of the right involved. With regard to the rights to freedom, the Constitutional Court basically follows a three-step-test that has been largely influenced by the case law of the ECtHR and the German fundamental rights doctrine. According to this test, first, the scope of the freedom right must be established to determine whether it protects a particular activity. Secondly, it must be assessed whether the right has been interfered with and, finally, whether the interference was justified, otherwise the fundamental right was violated. As the debate in Germany has revealed, there are basically two different approaches to assess the scope of a freedom right.31 It can be either regarded as fairly broad (weite Tatbestandstheorie) or kept deliberately narrow (enge Tatbestandstheorie). A narrow scope means that only a few activities are protected by the right but it might also make the protection more effective. If, for example, the freedom of science (Art 17 of the Basic Law on the General Rights of Nationals) was restricted to activities of scholars sitting in their studies and putting down their ideas in writing, yet excluded publishing them, this fundamental right could probably be guaranteed very effectively, as such activities would hardly interfere with the rights of others or with public interests. Designing a fundamental right with a much broader scope, on the other hand, would trigger many more activities to be protected but might also result in a more flexible protection as it would be more likely to include activities that would interfere with other legal positions or legal interests. In practice, the Constitutional Court generally seems to take the latter position, although there are some notable exceptions. One of the most prominent exceptions is to be found in the 1974 court’s ruling on the law of abortion.32 The social democratic government had 31

  eg Alexy, A Theory of Constitutional Rights, n 25, 200ff.   VfSlg 7400/1974.

32

220  Fundamental Rights

enacted a new penal law code introducing a provision according to which abortion was not punishable when carried out within the first three months of pregnancy by a medical doctor after comprehensive medical consultations. This provision faced massive protests by the Catholic Church, catholic associations and groups within and outside the People’s Party. Thus, the Salzburg Government challenged it before the Constitutional Court, which primarily had to assess this provision against the right to life guaranteed by Article 2 ECHR. But according to the court’s findings, the scope of Article 2 ECHR did not cover the protection of life before birth. It argued that the exceptions stipulated by Article 2 ECHR only provided for the deprivation of life of the already born. Consequently, the unborn life would enjoy unlimited protection even if the mother’s life was in danger. The court insisted that such a view was not acceptable. Instead, as the exception to Article 2 ECHR did not cover such a case, the court concluded that it did not protect the unborn life at all. The Constitutional Court was heavily criticised especially by catholic and conservative lawyers for its ‘formal’ way of treating the case.33 Specula­tion grew that the ECtHR could take a different view. Decades after the 1974 ruling of the Constitutional Court, however, the ECtHR held that it was the Member States’ responsibility to decide how far they were willing to protect the unborn life. It was held that a common European standard could not be established and, therefore, did not apply. Although the law on abortion is still opposed by the Catholic Church and most certainly a striking exception in the legal system of a catholic country, it would be unthinkable even for a conservative government to change it. On the second step of the aforementioned three-step test the Constitutional Court determines whether there is an act that interferes with the activity that falls under the scope of a freedom right. Formally, such an act may be a ruling of an administrative authority, the exercise of direct administrative power and force, an ordinance or a law. A measure interferes with a freedom right if it forbids an activity or prohibits a citizen from exercising that right. The Constitutional Court determined, especially in its earlier jurisdiction, that only measures intended to prohibit an activity protected by a fundamental right could also interfere with this right. For instance, the Constitutional Court 33  W Waldstein, ‘Rechtserkenntnis und Rechtsprechung. Bemerkungen zum Erkenntnis des VfGH über die Fristenlösung’ (1976) Juristische Blätter 505, 574.



General Aspects  221

decided that a citizen’s right to personal liberty had not been infringed by an order of a customs authority not to leave a specific room while the citizen’s luggage was searched as the order did not intend to restrict the personal liberty but merely safeguarded the inspection.34 This approach was criticised by legal scholars35 and is obviously not in line with the jurisprudence of the ECtHR, which assesses and values the details of the case on an objective level rather than to assess the intention of the authority.36 It seems that the Constitutional Court is ready to drop its initial approach and follow the jurisprudence of the ECtHR.37 In many cases, however, the Constitutional Court did not follow this restrictive approach in the first place. For instance, it considered punishment for a statement that could have caused an offence to be an interference with the freedom of expression,38 even though punishment could not prevent the potentially insulting statement. The possible consequences of the punishment on the future activities of the citizen who had made the statement were enough to deduce interference. Only if the first two steps of this test are met and, thus, a measure can be regarded as interfering with the exercise of a freedom right, must it then be assessed whether the interference might be proportional. It is therefore important whether the court chooses a restrictive approach in assuming the scope and/or the interference or holds a broader view. A broader view would enhance fundamental rights as cases were to be decided on the third level, the justification. A more restrictive approach on one or both of the first two steps would help to decide more cases on these levels but automatically lead to the finding that fundamental rights were not violated (as they were not interfered with or not even touched). Over the years, the Constitutional Court has broadened its approach rather than imposed further restrictions although it still does not meet all the demands of the ECHR as they were established by the ECtHR. According to the jurisprudence of the Constitutional Court an extradition of foreigners, for example, only may infringe their right to family life and not also the equivalent right of their spouses or 34

  VfSlg 12017/1989.   eg Berka, Die Grundrechte, n 7, 146f. 36   Amuur v France (App no 19776/92) (1996) 22 EHRR 533. 37   VfSlg 15465/1999. 38   VfSlg 14233/1995. 35

222  Fundamental Rights

partners.39 This approach of the Constitutional Court clearly fails to meet the current standard of the jurisprudence of the ECtHR.40 But in general, the Constitutional Court has adopted a broader view within the last decades and was thereby also influenced by the case law of the ECtHR. With regard to the principle of equality, a two-step test applies as there is no need to assess a specific scope of the general equality principle. However, in all cases the criteria against which justification is measured depend on whether the right was infringed by the administration or by the legislator. III.  Binding Effect on the Administration

In its jurisprudence, the Constitutional Court has established several criteria against which it assesses the interference of administrative action with a freedom right. These criteria are summarised in ‘set phrases’41 (Grundrechtsformeln) which appear throughout the case law of the court as a leitmotif and starting point of all legal considerations. They reflect both the normative structure of the freedom rights guarantee and the Austrian two-track system of administrative review. Regarding the normative structure of freedom rights, it can be observed that almost all freedom rights are guaranteed only subject to the reservation that they might be restricted by a parliamentary statute.42 Nevertheless, some of them are guaranteed without reservation.43 One such right is given in Article 17 of the Basic Law on the General Rights of Nationals, which states that science and its teaching are free. Another one is the right to performing and teaching of arts (Art 17a of the aforementioned Basic Law). In both cases, at least in its phrasing, the constitution does not provide for any restrictions. In comparison, Article 6 of the Basic Law on the General Rights of Nationals states that ‘every national can . . . practise every kind of gainful activity subject to the conditions of 39

  cf VfSlg 15744/2000, 17047/2003.  eg Nolan and K v Russia (App no 2512/04) ECtHR 12 February 2009. 41   cf K Spielbüchler, ‘Grundrecht und Grundrechtsformel’ in O Martinek et al (eds), Arbeitsrecht und soziale Grundrechte (Wien, Manz, 1983) 289. 42   Walter et al, Bundesverfassungsrecht, n 14, 629. 43  S Morscher, ‘Freiheitsrechte ohne ausdrücklichen Gesetzesvorbehalt – welche werden wirklich “absolut” gewährleistet und warum?’ (2003) Juristische Blätter 609ff; M Pöschl and A Kahl, ‘Die Intentionalität – ihre Bedeutung und Berechtigung in der Grundrechtsjudikatur’ (2001) Österreichische Juristenzeitung 41. 40



Binding Effect on the Administration  223

the law’. This provision is read in a way that the right to free employment may be restricted by a parliamentary statute or on the basis of such a statute. The phrasing of the property clause (Art 5 of the Basic Law) may be even more explicit: expropriations may ‘only occur in cases and in the manner determined by law’. In other words, neither the right to free employment nor property are absolutely guaranteed by the constitution, but both are subject to a ‘reservation of interference’ (Eingriffsvorbehalt). The original, historic effect of this reservation, still under the monarchical constitution, was to curtail the powers of the administrative state and to subject them to parliamentary policies in times when no general principle of legality had been enacted.44 Thus, it ensured that the monarch’s prerogative powers could not be used to infringe fundamental rights. Consequently, however, any interference with a freedom right that is not based and cannot be based on a parliamentary statute violates the constitution. Thus, the Constitutional Court would argue, a ‘lawless interference’ (gesetzloser Eingriff ) constitutes a violation of a freedom right guaranteed only subject to a ‘reservation of interference’. Had the court stuck with a formal reading of the term ‘lawless’, freedom rights would have hardly become very effective. Administrative actions that obviously lack any legal basis are a rare phenomenon. In the case law of the Constitutional Court only a few examples may be found: for instance, an administrative ruling is ‘lawless’ in this sense when it is based on a law that has not yet entered into force.45 In practice, administrative authorities do refer to laws but sometimes these laws are applied so wrongfully that they only seem to back the administrative ruling. The Constitutional Court has, thus, adopted a more substantive approach and treats cases alike in which a parliamentary statute simply does not exist and in which there only seems to be a legal basis for the administrative action. In the end, it therefore does not matter whether an administrative authority openly acts without a legal basis or merely pretends to be backed by a law: should the act interfere with a freedom right, the right engaged is violated. Consequently, the equivalent set phrase of the Constitutional Court reads: freedom rights that are restricted by a right to interference are 44  See K Korinek and B Gutknecht, ‘Der Grundrechtsschutz’ in H Schambeck (ed), Das österreichische Bundesverfassungsgesetz und seine Entwicklung (Berlin, Duncker & Humblot, 1980) 291ff. 45   VfSlg 12624/1991.

224  Fundamental Rights

violated by a ruling of an administrative authority if there is no law that the ruling could possibly be based on or if it only pretends to be based on a law. This set phrase is still usually complemented by a third limb, according to which a violation can also be assumed if the ruling is based on an unconstitutional law.46 This third limb is mainly of historical importance. Nevertheless, it still can be linked to the basic idea that every lawless action of an administrative authority violates a constitutional right. It reflects the procedural situation created by the reviewing and rescinding of a law by the Constitutional Court. Whenever the Constitutional Court has to apply a law that it suspects to be uncon­stitutional, the court must review and if required rescind it. If the Constitutional Court rescinds a law, irrespective of whatever other consequences it may have, the law shall not be applied to the case under consideration. With regard to such a case, rescission has a retroactive effect. With hindsight, it can be stated that the administrative act was not based on a law. However, this criterion has lost its specific meaning due to the 1975 amendment of the constitution (BGBl 302/1975) that explicitly extended the Constitutional Court’s power to review administrative rulings on the allegation that a substantive right (not necessarily a constitutional right) was violated by the application of an unconstitutional law. Today, the second limb of the set phrase outlined above plays the essential part in the court’s jurisprudence. Different terms are used to express the idea that an administrative ruling only seems to be based on a parliamentary statute. This criterion may be fulfilled when the administrative authority pretends to act on a legal basis or when it applies the law in an unreasonable47 manner (denkunmögliche 48 Gesetzesanwendung). Thus, administrative rulings come under the scrutiny of the 46

 Generally on the set phrases of the Constitutional Court see Berka, Die Grundrechte – Grundfreiheiten und Menschenrechte in Österrreich, n 7, 118ff. 47   It might be tempting to compare this criterion with the Wednesbury unreasonableness principle. Depending on the reading of Wednesbury unreasonableness, there are many similarities but also some substantial differences. Both criteria, for instance, would cover the case in which the administrative decision defies logic but the Constitutional Court would never (explicitly) take into account moral standards (as the Austrian Constitution is not underpinned by a moral concept). On the other hand, the criterion as it is used by the Constitutional Court may trigger a full proportionality test (see later in the text). For Wednesbury unreasonableness cf P Cane, Administrative Law, 4th edn (Oxford, Oxford University Press, 2004) 250ff. 48  The closest English term for the German ‘denkunmöglich’ would be ‘unthinkable’ or, even more accurate, ‘impossible to think’.



Binding Effect on the Administration  225

Constitutional Court when the responsible authority severely fails to implement the law properly. Such severe failures may stem from defying logic, omitting to take the necessary procedural steps or completely misunderstanding the aim of a parliamentary statute. Thus, an administrative authority applied the relevant law in an unreasonable manner as it immediately removed licence plates without issuing an administrative ruling although the law did not explicitly provide for the exercise of direct administrative power.49 Admittedly, as long as the Constitutional Court concentrated on severe failures of implementing the law as outlined above, the jurisprudence of the court did not add much to the administrative review as it was and is exercised by the Administrative Court. Any such failure could easily be assessed by the Administrative Court as in such a case the administration simultaneously violates a ‘simple law’. Specific constitutional considerations are not required. The Administrative Court’s powers to review administrative rulings and to assess their legality was also the obvious reason why the Constitutional Court has not accepted the idea that every failure, every wrongful application of the law, may lead to a violation of a fundamental right. In this respect, the criterion established by the Constitutional Court reflects the two-track system of administrative review. While the Austrian Administrative Court is appointed to review the lawfulness of administrative acts the Constitutional Court is appointed to review the constitutionality of administrative acts. With regard to the wide scope of freedom rights, the Administrative Court would be left practically powerless (and the Constitutional Court would have to shift a much higher workload), if every unlawful act by an administrative body became an unconstitutional act. Therefore the Constitutional Court insists administrative acts to violate the constitution only if the failures in applying the law are of such severity that they border on ‘lawlessness’, meaning that they are substantially equivalent to the cases in which no legal basis exists. There is only one exception to this principle: Article 12 of the Basic Law introduces a specific type of reservation according to which ‘the exercising’ of the rights of nationals to assembly and to constitute associations ‘will be prescribed by special laws’. The Constitutional Court therefore argues that these rights may only be exercised subject to the relevant laws. This kind of reservation is called a ‘reservation of 49

  VfSlg 6402/1971.

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implementation’ (Ausführungsvorbehalt) and as a consequence, the court holds that every violation of the implementing law simultaneously constitutes a violation of the fundamental right. In all other cases, however, the court sticks to its opinion that only a severe failure in applying the law may constitute a violation of the freedom right engaged. Nevertheless, the criterion ‘applying the law in an unreasonable manner’ only gained real importance when the Constitutional Court suggested that every interpretation of a parliamentary statute not adhering to the constitution would be deemed to be ‘unreasonable’ in the above mentioned sense. Consequently, the administrative authorities are obliged to interpret all laws in conformity with the constitution and, above all, in conformity with constitutional rights guarantees. Whenever an administrative authority implements or enforces a parliamentary statute, it has to assess whether fundamental rights may be affected. Should this be the case, the authority has to respect this fundamental right and choose the measures to be taken accordingly. Unless prohibited by the statute, the authority has to interpret it in accordance with the fundamental right which would basically demand a balancing exercise as part of the decision making process. It is not important if the statute explicitly provides for such a balancing exercise or even addresses fundamental rights’ positions. It would suffice that the wording of the statute does not exclude what would basically be: a proportionality test. Thus, it was possible that the Constitutional Court demanded that police authorities deciding on the expulsion of foreigners had to respect the foreigners’ private and family life (Art 8 ECHR). Expulsion was deemed to be unconstitutional and thus violating Article 8 ECHR when the private interests of the foreigner were not properly balanced with the public interest expressed by the relevant parliamentary statute regardless of the fact that the statute did not provide for such a balancing decision.50 In a similar way, the court ruled that laws restricting business had to be interpreted in accordance with Article 6 of the Basic Law (right to free employment) whenever that was possible.51 Disciplinary measures taken against lawyers, civil servants or medical doctors have to be in accordance with Article 10 ECHR where it applies and Article 6 of the Basic Law respectively.52 Dissolution of an association or an assem50

  VfSlg 14121/1995.   VfSlg 11991/1989. 52   VfSlg 11404/1987, 13612/1993, 16483/2002. 51



Binding Effect on the Administration  227

bly is only lawful when the grounds given meet the requirements of Article 11 paragraph 2 ECHR, although the phrasing of the legal provisions that apply would allow a much broader approach.53 Interestingly, the freedom of scientific inquiry and the right to perform and teach arts although guaranteed without any reservation at all demand a similar balancing decision. In the case of a piano player whose practising annoyed and arguably disturbed her neighbours, the court ruled that she could not be fined by police authorities, but on the basis of a decision balancing the interests of her neighbours and the interest to perform arts. The statute involved did not explicitly provide for such a balancing decision, but instead allowed the law enforcement authorities to take action whenever people were improperly disturbed by noise.54 But it was held that the term ‘improperly’ was broad or vague enough to allow or even demand a balancing exercise read in the light of the constitution. With regard to the principle of equality, a similar pattern applies. The general equal protection clause (Allgemeiner Gleichheitsgrundsatz ; Article 7 paragraph 1 of the Federal Constitution) states that all nationals (Austrian citizens) are equal before the law. Privileges based upon birth, gender, estate, class or religion are excluded. It has already been discussed that the restriction of this guarantee so that it is enjoyed exclusively by Austrian citizens no longer applies. The principle of non-discrimination as it is enshrined in European law (Art 18 TFEU overrides Art 7 of the Federal Constitution insofar as all European citizens enjoy this right). Further, the Constitutional Court has adopted the same status of protection for foreigners with regard to the implementation of the International Convention on the Elimination of all Forms of Racial Discrimination (BGBl 390/1973). The call for equal treatment of all people is addressed primarily at the administrative state. According to the jurisdiction of the Constitutional Court, it is to be understood as a prohibition of arbitrariness, whereby it is irrespective whether an authority acts arbitrarily on purpose or not. Hence, if a measure appears to be arbitrary from an objective point of view it is unconstitutional.55 This may be the case if the authority severely misjudges the legal position of an applicant,56 plainly violates 53

  eg VfSlg 8090/1977 (association); VfSlg 10443/1985, 12155/1989 (assembly).   VfSlg 11567/1987. 55   VfSlg 4480/1963, 9206/1981. 56   VfSlg 10163/1984, 12924/1991. 54

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the claimant’s procedural rights57 or contrary to legal requirements issues a ruling without providing proper reasoning.58 An administrative authority may also violate the equal protection clause if it (wrongfully) interprets the enforced legal provision in a way that the provision itself would violate the equal protection clause.59 Similar to freedom rights, the principle of equality guarantees protection against severe failures of the administration in applying the law. In many cases it might be questioned whether this protection goes beyond the protection offered by the Administrative Court. The latter may also find that it is illegal to issue a ruling without giving adequate reasons (such reasons are always required apart from cases in which the authority entirely meets an application). Only when the Constitutional Court rules that the principle of equality demands an interpretation of the law different to the interpretation given by the administrative authority, specific constitutional considerations may be required. However, it has to be stressed that an arbitrary action of an administrative authority may only be repealed by the Constitutional Court if the administrative authority acts unlawfully, thus failing to apply the law correctly. When a civil servant challenged disciplinary measures taken against him arguing that the authority had refrained from taking actions in similar cases, the Constitutional Court instantly dismissed the argument.60 The same applied in the case of a proprietor of a Tyrolean camping site who allowed certain mobile homes on his site, an action which was arguably prohibited by a Tyrolean statute. The proprietor was fined by a Tyrolean authority. He challenged the ruling arguing that the authority had tolerated the type of mobile homes in question on other camping sites. The Constitutional Court did not even consider the facts as it thought that the law was applied reasonably. It rather stated that there was no right to equal incorrectness.61 This means that if the authority might have failed to apply the law (correctly) in other cases, the equal protection clause cannot be invoked, with the proviso that the authority acted legally in the applicants’ case. As a consequence of the jurisprudence of the Constitutional Court, in Austria there is no remedy against preferential treatment as long as no 57

  VfSlg 15124/1998.   VfSlg 15114/1998. 59   eg VfSlg 11284/1987. 60   VfSlg 5372/1966. 61   VfSlg 9169/1981. 58



Binding Effect on the Administration  229

legal position of a third party is affected. Administrative authorities may grant subsidies or issue permissions in favour of the applicant against the law without facing any consequences. Of course, one can only speculate how often preferential treatment is meted out in practice. But in a political system where political parties behave like feudal lords it can hardly be ruled out that party affiliates are not subject to such advantage every now and then. Only recently the ECtHR reacted to preferential treatment handed out by the Austrian parliament in its decision on the already discussed case of Jehovah’s Witnesses. 62 This religious group had requested for recognition as a religious society under the 1874 Recognition Act in 1978 already. After almost 20 years of clarifying questions of jurisdiction the request was dismissed by the responsible Cabinet Minster. This decision was overruled by the Constitutional Court as it found that it was taken without a proper investigation and therefore arbitrarily, thus violating the principle of equality. Meanwhile, parliament had passed the 1998 Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, BGBl I 1998/19). It implicitly amended the 1874 Recognition Act as it provided for religious groups to first acquire legal personality as a registered religious community. Only if they existed as a religious community for a minimum of ten years would they have a chance to be recognised as a religious society according to the 1874 Recognition Act and thus enjoy the vast privileges of this status. All applications under the 1874 Recognition Act were by law held to be requests under the 1998 Religious Communities Act. During the ten years waiting period religious communities should be monitored to assess whether they would qualify for recognition as a religious society. This law was applied in the case of Jehovah’s Witnesses although they had been established already as a religious group for some decades. Nevertheless, the law and its application were upheld by the Constitutional Court as well as by the Administrative Court.63 On the application of the Jehovah’s Witnesses the ECtHR was informed that in 2003 the Coptic Orthodox Church, which had existed as a religious community since 1998 and as a religious group for a considerably shorter period than the Jehovah’s Witnesses, was handed the status of a religious society by a parliamentary statute which clearly 62

  cf chapter six.   VfSlg 16131/2001, VwGH 14.09.2004, 2001/10/0091.

63

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constituted an act of preferential treatment – at least in the eyes of the applicant. The ECtHR took it into consideration and found that the Austrian parliament had demonstrated that it ‘did not consider such a waiting period to be an essential instrument for pursuing its policy in that field’.64 Thus, it had violated Article 14 in conjunction with Article 9 ECHR. The ECtHR has shown one possible way of dealing with preferential treatment, which is probably a problem of a structural nature of the Austrian legal and political system that the Constitutional Court was never willing to address. Apart from that, however, the jurisprudence of the Constitutional Court has significantly influenced not only the implementation of administrative law, but has also changed the methods of reading and interpreting it. Until the 1980s, administrative authorities could mainly have avoided an infringement of fundamental rights by strictly sticking to the phrasing of the parliamentary statutes and not overstretching it and relying on the explanatory remarks respectively. But as the court obliged the authorities to take into account the issue of fundamental rights and balance their measures against them to avoid the verdict of applying the law in an unreasonable manner, authorities have to follow different methods of interpreting the law and sometimes even to correct their initial intention. As the Administrative Court did not systematically follow the ideas of the Constitutional Court, a struggle between a more formal, traditional and a more substantive reading of administrative law ensued. Amongst Austrian public law scholars there are still proponents of a more traditional approach, as well as advocates of a more substantive view which is inspired not only by the case law of the ECtHR but also by the civil law and the German public law doctrine.65

64

  Religionsgemeinschaft der Zeugen Jehovas and others v Austria (App no 40825/98) ECtHR 31 July 2008. 65   W Berka, ‘Der Freiheitsbegriff des “materiellen Grundrechtsverständnisses”’ in J Hengstschläger (ed), Für Staat und Recht – Festschrift für Herbert Schambeck (Berlin, Duncker & Humblot, 1994) 339; R Walter, ‘Grundrechtsverständnis und Normenkontrolle’ in K Vogel (ed), Grundrechtsverständnis und Normenkontrolle (Wien, Springer, 1979) 17ff.



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IV.  Binding Effect on the Legislation

Apart from Articles 5 and 6 ECHR which both greatly influenced the development of Austrian legislation, it have been basically freedom rights and the equality clause that have played a decisive part in the jurisprudence of the Constitutional Court when reviewing laws concerning fundamental rights. A.  Freedom Rights: from Deference to Proportionality In assessing the constitutionality of laws in the light of freedom rights provisions, the design of the ‘reservation of interference’ attached to the freedom rights guarantees again was of importance. Austrian scholars distinguish between a ‘formal reservation of interference’ ( formeller Eingriffsvorbehalt) and a ‘substantial reservation of interference’ (materieller Eingriffsvorbehalt).66 Freedom rights that only state that interference is admissible on a legal basis, without providing for further requirements, contain a ‘formal reservation’ of interference. The wording of the provision does not set any limits to the legislation and seemingly leaves it to the discretion of the legislator to define the prerequisites for interference. Kelsen, for example, explicitly stated that a fundamental right subject to such a reservation was completely meaningless under the 1920 Constitution as it provided for the obvious: that any interference had to be based on a parliamentary statute.67 But as all administrative action of the state had to be based on a parliamentary statute according to Article 18 of the Federal Constitution, such a fundamental right did not offer any additional benefit; in particular, it could exercise no binding effect on parliament. Freedom rights subject to a formal reservation can be found primarily in the 1867 Austrian Basic Law on the General Rights of Nationals. In contrast, the ECHR shapes the reservations of interference differently, explicitly limiting them to restrictions that pursue certain aims and that are necessary in a democratic society. Such provisions are referred to as substantial reservations of interference. Both types of reservations played their part in the development of the juris66

 Berka, Die Grundrechte, n 7, 147; Walter et al , Bundesverfassungsrecht, n 14, 629.   H Kelsen, Allgemeine Staatslehre (Wien, Springer, 1925) 155.

67

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prudence of the Constitutional Court. The impact of the latter, of course, was moulded by the case law of the ECtHR. In its earlier jurisprudence, the Constitutional Court had only to deal with rights that were guaranteed subject to a formal reservation of interference. In particular, during the First Republic the case law of the court effectively met Kelsen’s view as the court held that such rights could not exercise any binding effect on the legislation. The argument of the court, however, was somewhat more subtle and sophisticated. In 1928, the State Governments of Vorarlberg and Styria filed an application to the Constitutional Court aiming to strike down a 1922 law regulating tenancy agreements.68 The main purpose of the statute involved was to strengthen the legal position of the tenant at the expense of the landladies and landlords. It limited the amount of rents which could be asked for and the rights of the landladies and landlords to terminate tenancy agreements restricting their right to freely negotiate contracts. The two State Governments argued that this law violated the property clause (Art 5 of the Basic Law on the General Rights of Nationals) as it did not protect the public interest more broadly, but only the interests of a single group of people (the tenants). The Constitutional Court did not deny that Article 5 of the Basic Law could have an effect on the legislator. It accepted that the right to property might only be infringed by a law that pursued the common good. However, it rejected the idea that defining the common good involved any legal aspects the court possibly could review. It emphasised that it was the task of parliament to assess which interests in society should prevail or how a compromise between conflicting interests might be found. The Constitutional Court refrained from giving an opinion on this question thus deferring on this matter to parliament. Although it might be argued that already in the 1920s the Constitutional Court expressed the idea that fundamental rights could only be infringed by laws pursuing the common good, it refused to review if this actually was the case. As a consequence, freedom rights did not have any binding effect on parliament. Freedom rights were, thus, of little significance and especially did not prevent Austria from developing a social welfare system. Some scholars might still propose that the freedom rights represent a ‘liberal’ principle of the constitution69 – but for a long time it had only minor effects. 68

  Mietengesetz BGBl 872/1922.   Walter et al, Bundesverfassungsrecht, 10th edn (Wien, Manz, 2007) 89.

69



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After 1945, the court changed its attitude only gradually. Inspired by a provision of the German Basic Law (Art 19 para 2), it stated that restrictions on fundamental rights must not affect the essence (Wesensgehalt) of the fundamental right in question.70 Not surprisingly, this statement initially had no effect in practice. No law was rescinded on the grounds that it had simply affected the essence of a fundamental right. Nobody, not even the court, had a clear idea of what the ‘essence’ of a fundamental right possibly could be. German lawyers, of course, also had difficulties in establishing the content of their constitutional provision which referred to the ‘essence’ of a fundamental right.71 Several theories were suggested that may be summarised under two categories. One set of theories focused on a core element of every fundamental right that could not be touched by the legislator under any circumstances (absolute Wesensgehaltstheorie),72 while the other suggested that the ‘essence’ of a fundamental right was affected when the legislator restricted its exercise in a disproportionate manner (relative Wesensgehaltstheorie).73 For a couple of decades it was not clear which theoretical approach the Austrian Constitutional Court would follow, as it only occasionally hinted at providing a possible reading of the ‘essence’ of freedom rights. Public law scholars, however, praised the idea that freedom rights might exercise a binding effect on the legislator.74 The latter was rather surpris70  The first ruling in which the court referred to this term was probably VfSlg 3505/1959. 71  See for instance H Krüger, ‘Der Wesensgehalt der Grundrechte i.S. des Art. 19 GG’ (1955) Die öffentliche Verwaltung 597, 598; A Kaufmann, ‘Über den “Wesensgehalt” der Grund- und Menschenrechte’ (1984) Archiv für Rechts- und Sozialphilosophie 384, 391. 72   G Dürig, Gesammelte Schriften 1952–1983 (Berlin, Duncker & Humblot, 1984) 127ff; T Maunz, Deutsches Staatsrecht, 19th edn (München, Beck, 1973) 117; L Schneider, Der Schutz des Wesensgehalts von Grundrechten nach Art. 19 Abs. 2 GG (Berlin, Duncker & Humblot, 1983) 201ff. 73  P Häberle, Die Wesensgehaltgarantie des Art. 19 Abs. 2 Grundgesetz, 3rd edn (Heidelberg, C.F. Müller, 1983); Alexy, A Theory of Constitutional Rights, n 25, 44ff. 74  J Aicher, Grundfragen der Staatshaftung bei rechtmäßigen hoheitlichen Eigentumsbeeinträchtigungen (Berlin, Duncker & Humblot, 1978); K Korinek, ‘Das Grundrecht der Freiheit der Erwerbsbetätigung als Schranke für die Wirtschaftslenkung’ in K Korinek (ed), Beiträge zum Wirtschaftsrecht (Wien, Orac, 1983) 243; P Oberndorfer and B Binder, ‘Der verfassungsrechtliche Schutz freier beruflicher, insbesondere gewerblicher Betätigung’ in L Adamovich and P Pernthaler (eds), Auf dem Weg zur Menschenwürde und Gerechtigkeit – Festschrift Klecatsky (Wien, Braumüller, 1980) 677ff.

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ing as the court’s reliance on a term borrowed from the German Basic Law and the German fundamental rights doctrine obviously clashed with the otherwise retrospective methods of reading the Austrian constitution. However, public law scholars in Austria elaborated various theories to establish the essence of a freedom right again borrowing from German constitutional doctrine.75 One of the most popular concepts was to assume that in its essence a freedom right guaranteed a legal institution such as ‘private ownership’ (in the case of the property clause, Art 5 of the Basic Law on the General Rights of Nationals).76 According to this doctrine, parliament was prevented from enacting a law exempting a whole category of goods from being open to private ownership. Obviously, the main difficulty of this doctrine was to define such a category. In case it was assessed on broader terms such as ‘immovables’, it seemed to be quite clear that the doctrine would have almost no practical impact as the Austrian parliament never made the least effort to nationalise all immovables. And should it ever make such a move, it is hard to imagine that there would be a constitutional court to prevent it from doing so as such action would imply a change of the political situation so radical that it would also affect the entire constitutional system. In preparing the introduction of the authoritarian 1934 Constitution one of the first measures taken was to silence the Constitutional Court. Were the category instead to be assessed as a narrower term, like narcotic drugs, its result seemed to be unacceptable as it might even be desirable to prevent people from owning (and using) them. Clearly, the effect demonstrated that it would be difficult to define a core area of a fundamental right that could be upheld against the legislation at any time and under any circumstances that might arise. Neither the German Federal Constitutional Court (Bundesverfassungsgericht) nor the Austrian Constitutional Court have ever declared a law invalid on the grounds that it interfered with such a core area of fundamental rights. Nevertheless, it might be tempting to speculate whether the Austrian Constitutional Court might one day assume that such a core element of a fundamental right will be immune from interference from the legislator under any circumstances. 75

 For the history of the debate on the essence of fundamental rights see M Stelzer, Das Wesensgehaltsargument und der Grundsatz der Verhältnismäßigkeit, n 3. 76   VfSlg 12227/1989, 14075/1995.



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For the time being, however, the Constitutional Court has taken a different route. In a 1959 ruling77 a Viennese law regulating on land development was scrutinised by the court. The law provided for a part of the land to be developed to be transferred to the state on the occasion of development, which clearly represented an act of expropriation. As the law did not specify any need or purpose the expropriated part of land had to be used for, it was ultimately rescinded by the Constitutional Court. According to the grounds given by the court, an expropriation was only to be deemed lawful if there was a specific need which could only be met by the object involved. Already in 1959, the court defined some of the most important limbs of the proportionality test: First, interference with a freedom right had to pursue a (specified) public interest. Secondly, – as the object had to be capable of meeting the public interest – interfering measures had to be suitable. Thirdly, – as the demand only could be met by the object – measures had to be necessary in the sense of being the least restrictive on the freedom right engaged. Only the last stage of the full proportionality test was missing – ie the assessment whether the suitable and necessary measure nevertheless was disproportionate as it imposed an excessive burden on the individual. Although this last limb was accepted in later cases, it never played a significant part in the jurisprudence of the Constitutional Court. In fact it took another 25 years for the proportionality test78 to be fully incorporated in the court’s jurisprudence.79 In the mid 1980s a couple of laws imposing limits on the right to free employment (Art 6 of the Basic Law on the General Rights of Nationals) came under the scrutiny of the Constitutional Court. Some of these laws provided for a so-called ‘assessment of demand’ (Bedarfsprüfung) as a prerequisite to issuing a licence for establishing certain businesses. These provisions, which were fairly common in Austria, protected the existing business in the market by erecting ‘objective’ barriers to the introduction of a new business. In one of the leading cases, the Constitutional Court quashed the related provisions of a law that regulated the market for taxi drivers.80 77

  VfSlg 3666/1959.  Alexy, A Theory of Constitutional Rights, n 25, 66ff and 396ff 79  See eg M Holoubek, ‘Die Interpretation der Grundrechte in der jüngeren Judikatur des VfGH’ in R Machacek, W Pahr and G Stadler (eds), Grund- und Menschenrechte in Österreich, Vol I Grundlagen, Entwicklungen und Internationale Verbindungen (Kehl am Rhein-Straßburg-Arlington, NP Engel Verlag, 1991) 43ff. 80   VfSlg 10932/1986. 78

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Whoever wished to set up a business as a (self-employed) taxi driver had to apply for a licence. Such a licence could only be issued if the market ‘needed’ an additional supplier of the business. This was mainly assessed on the expert opinion of a Chamber of Commerce, which therefore could protect the suppliers in the market who – by law – were all members of the Chamber. The number of licences could, therefore, be limited in the interest of the existing businesses. The federal government, of course, produced a couple of arguments supporting the idea that by limiting the number of taxicabs the common good was served. One aim given was to ensure that a customer could hire a free taxicab when she or he wished to do so. The court held that limiting the number of taxicabs rather than meeting this objective would have the contrary effect. The measure was therefore deemed unsuitable (in the sense of the proportionality test) with regard to the specific public interest which had been set out. Further, the federal government argued, a limitation of the number of taxicabs served the public interest by reducing traffic flow. A higher number of taxicabs could lead to serious congestion. Although the court accepted that avoiding road traffic congestion was a legitimate aim, it doubted that the removal of the limitations would significantly increase the number of taxicabs in circulation. Should nevertheless problems occur, they could be met with policing measures which would be less restrictive to the right to free employment than denying access to the market, which was therefore ‘not necessary’. Finally, the federal government insisted that the existing law was supported by safety considerations. Again, the court assumed that these aims could be pursued by other measures more suitable and less restrictive such as regulations providing for technical standards for the cars and for ensuring the drivers had specific skills. As a consequence, the court found that the ‘assessment of demand’ was a partly unsuitable, partly unnecessary measure to pursue the public interest and was only aimed at protecting the suppliers on the market which constituted no legitimate ‘public’ interest. Thus, the related provisions were rescinded. In a similar way, provisions pertaining to the establishing of skiing schools,81 driving schools,82 cinemas83 and other businesses were quashed by the Constitutional Court. 81

  VfSlg 11652/1988.   VfSlg 11276/1987. 83   VfSlg 11749/1988. 82



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In the case of chimney sweeps, undertakers and pharmacies, however, the court upheld laws providing for an ‘assessment of demand’ and, thus, the protection of the existing businesses on the market. The case of pharmacies is especially interesting as it can be compared with a ruling of the German Federal Constitutional Court. Already in 1956 a Bavarian law providing for an assessment of demand (Bedürfnisprüfung) as a prerequisite to issuing a licence to run a pharmacy was placed under scrutiny by the German court. Applying the proportionality test the court declared the relevant parts of the Bavarian law void.84 The Austrian Constitutional Court, on the other hand, found that a similar provision of the Austrian Law on Pharmacies (Apothekengesetz ) withstood the proportionality test. The Austrian court accepted the argument of the federal government that limiting the number of pharmacies and thus guaranteeing a certain income for existing pharmacies was a necessary measure in pursuing the public interest of continuously supplying the population with medical drugs. Only if a pharmacy was to supply a certain number of inhabitants (around 5,000) would it be economical to stock the drugs which were needed in rare but urgent cases.85 Although the Austrian Constitutional Court referred to the German decision and the situation in Germany it nevertheless followed the line of argument of the federal government. There were no reports that Germans had been forced to suffer severe damage to their health or to their lives because pharmacies had not stocked rarely needed drugs. Obviously, the Austrian Constitutional Court did not trust the regulatory function of the free market in the same way the German court had done decades ago. It comes as no real surprise that this Austrian regulation is currently under review of the ECJ.86 However, it is noteworthy that the Constitutional Court has developed a proportionality test on the basis of the 1867 Basic Law on the General Rights of Nationals – that is on the basis of freedom rights subject to ‘formal reservations of interference’.87 It thus overcame the traditional reading of these rights – a proportionality test was not what 84

  BVerfG 7, 377 – Apotheken-Urteil.   VfSlg 15103/1998. 86  P Bußjäger and G Heißl, ‘Bedarfsprüfung für Apotheken und Gemeinschaftsrecht’ (2010) Österreichische Juristenzeitung 209. 87  See also R Machacek, ‘Werden und Wandel der Grundrechte’ in Machacek et al (eds), Grund- und Menschenrechte in Österreich, Vol I Grundlagen, Entwicklungen und internationale Verbindungen, n 79, 735ff, 745. 85

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Kelsen had in mind when he defended the idea of constitutional review.88 The jurisprudence of the court was inspired by the German Basic Law and the German constitutional doctrine which was partly adopted by some Austrian constitutional scholars challenging the more traditional methods of reading the constitution.89 Although there was a domestic line along which the proportionality test was developed, the influence of the jurisprudence of the ECtHR which applied a similar test when reviewing state action against the Convention rights cannot be ignored.90 At some point, the Constitutional Court suggested that these different lines were interlinked when it hinted that the ‘essence’ of the right to freedom of expression (Art 13 of the Basic Law of the General Rights of Nationals) might be defined in Article 10 paragraph 2 ECHR91 which comprises – in the terms of Austrian fundamental rights doctrine – a ‘substantial reservation of interference’ (materieller Eingriffsvorbehalt). The influence of the ECtHR might be illustrated in a case relating to the former monopoly of the Austrian Broadcasting Corporation (Österreichischer Rundfunk – ORF). A 1974 Constitutional Law on the Guarantee of the Independence of Broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, BGBl 396/1974) declared broadcasting a public assignment and provided for the federal parliament to regulate this activity ensuring the objectivity of reporting and the diversity of opinion. The federal legislator, exercising this authority, enacted a law on the Austrian Broadcasting Corporation, which transferred the right to broadcasting exclusively to the Austrian Broadcasting Corporation. No other person or business, therefore, could obtain a licence to establish a radio or television programme. This system was upheld throughout the years regardless of technical innovations. According to a ruling of the Administrative Court,92 the 1974 constitutional law did not cover the so-called ‘passive’ broadcasting via cable networks, which meant that Austrians were entitled to listen to 88

 H Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ (1929) 5 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 30. 89   E Wiederin, ‘Denken vom Recht her – Über den modus austriacus in der Staatsrechtslehre’ (2007) Die Verwaltung 294, 314. 90  F Matscher, ‘Methods of Interpretation of the Convention’ in R Macdonald, F Matscher and H Petzold (eds), The European System for the Protection of Human Rights (Dortrecht, Martinus Nijhoff Publishers, 1993) 63. 91   VfSlg 11651/1988. 92   VwSlg 13681 A/1992.



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foreign radio programmes and watch foreign, mostly German, TV programmes. The system under the described law basically met the interests of the political parties to exercise control over the broadcasting sector. Unsurprisingly, powers were attributed to the highest federal and state authorities to appoint members for the various boards of the corporation (depending on the organisation which has been changed throughout the years, currently it is organised as a foundation). At some point the law also provided for broadcasting time to be allocated to the political parties represented under the National Council free of charge. The argument that the monopoly system operated in Austria served the political control of the broadcasting industry rather than the objectivity and impartiality of reporting was used in the applications filed to the European Commission of Human Rights, which referred the case to the ECtHR in 1992. The court held that the Austrian legal situation which set up a licensing system concurred with Article 10 paragraph 1 ECHR but not with Article 10 paragraph 2. It found that the policy of eliminating all competition was disproportionate to the aims pursued and, accordingly, not necessary in a democratic society.93 Ten years before the ECtHR handed out its judgment, the Constitutional Court had heard the case of one of the Strasbourg applicants and dismissed it.94 It had only measured the Austrian licensing system against Article 10 paragraph 1 ECHR, but had failed to perform a proportionality test according to Article 10 paragraph 2 ECHR. In a 1995 judgment,95 however, it followed the Strasbourg court and rescinded the related provisions of the scrutinised law on the grounds that they were disproportionate in the light of Article 10 paragraph 2 ECHR, thus basically paving the way for the introduction of private television. Private radio programmes were already allowed by a 1993 law but on a regional basis only. It took another six years until private radio and television programmes were admissible according to the 2001 Act on Private Radio Broadcasting (Bundesgesetz, mit dem Bestimmungen für privaten Hörfunk erlassen werden, BGBl I 2001/20) and the 2002 Act on Private Television Broadcasting (Bundesgesetz, mit dem Bestimmungen für privates Fernsehen erlassen werden, 93

  Informationsverein Lentia and Others v Austria Series A no 276 (1994) 17 EHRR 93.   VfSlg 9909/1983. 95   VfSlg 14258/1995. 94

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BGBl I 2002/84). In reality, of course, the Austrian Broadcasting Corporation still has a very strong position in the market. Its two main TV programmes as well as its radio programmes are still amongst the most popular. According to a recent study96 more than 80 per cent of those who watch TV programmes would (also) tune into the two main ORF channels. Thus, they reach more than 50 per cent of the entire population aged 14 or older. It might, therefore, be disputed if and to which extent the ‘principle of pluralism’ as it was emphasised by the ECtHR in the case of Informationsverein Lentia and others is enshrined in Austrian society. The study also reveals that one specific print media, the Kronen Zeitung, a tabloid newspaper, reaches over 40 per cent of the entire population and, thus, plays a significant part in shaping the public opinion.97 It, therefore, comes as no surprise that political parties constantly attempt to ensure the support of this paper, especially before elections. In 2008, shortly after the Lisbon treaty was ratified, the then Federal Chancellor, a Social Democrat, and his designated successor wrote a letter to the publisher in which they pledged to submit further amendments of the EU Treaty to a referendum, as the paper had been critical on the ratification process of the Lisbon Treaty calling for such a referendum. This ensured the support of the paper for the Social Democrats in the 2008 elections, which they actually won. During the 2010 presidential election campaign the publisher demanded that the candidate of the Freedom Party clarified her position on the Constitutional Law on the Prohibition of National Socialism and threatened to otherwise withdraw his support. The candidate acted accordingly. Although in this case the support of the paper did not win the elections, newspaper reports following the death of the publisher at the age of 89 in June 2010 suggest that he was one of the most important figures in Austrian domestic politics, sometimes called ‘the secret chancellor’.98 These reports also seek to reveal how he had been influencing the political debate in Austria during the last four decades, mostly supporting politicians from the Social Democratic Party and the Freedom Party respectively, representing 96  Arbeitsgemeinschaft Teletest (AGTT), Media-Analyse 2009, http://www. media-analyse.at (login 8 July 2010). 97  G Lengauer, ‘Framing Campaigns: The Media and Austrian Elections’ in G Bischof and F Plasser (eds), The Changing Austrian Voter (New Brunswick-London, Transaction Publishers, 2008) 126. 98   cf H Werner Scheidl, ‘Ein Herz und eine Krone’, Die Presse 18.06.2010, 2.



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authoritarian views rather than a liberal approach.99 Although pluralism within the media sector is guaranteed by the constitution and also by the jurisprudence of the Constitutional Court, an analysis of the efficient constitution may reveal that two dominant media – the nationalised Austrian Broadcasting Corporation and the Kronen Zeitung – effectively controlled the market in the broadcasting and the print sector respectively. Both therefore were and still are in possession of strong political power. Challenging these powers should be a task of the Austrian society rather than the legal system. To a certain extent, the new approach of the Constitutional Court has overridden what might have been accessed as structural or even categorical differences between the different types of freedom rights. According to this new approach, a proportionality test is performed, regardless of whether the freedom right involved is guaranteed subject to a formal or substantial reservation of interference. Consequently, what could have been a categorical difference is reduced to the observation that a substantial reservation limits and specifies the public interests which might legitimate an interference with the related freedom right. As the ECHR defines these public interests in a rather broad manner, this has basically no effect in reality. Moreover, in the case of freedom rights guaranteed without any reservations, the freedom of science and the freedom of the arts, a proportionality test also applies. Apparently, the court upholds the idea that these rights must be different in some way, when it argues that an ‘intentional interference’ with such a right is unconstitutional per se.100 For the time being, it can only be speculated in which cases the court may assume an ‘intentional interference’ as no definition has ever been given. Still, it is widely held that the court’s doctrine might prohibit the legislator from enacting laws preventing scientists and/or artists from following certain trends only because these trends are held to be detrimental to society.101 Thus, a Nazi-style law that defines certain trends in arts as ‘degenerated’ and consequently prohibits their performance would be unconstitutional per se. But, of course, there is no real threat that the Austrian parliament might enact such a law. Consequently, it can be observed that the different types of     99

  H Fidler, ‘Hans Dichand 1921 – 2010’, Der Standard 18.06.2010, 2; H Rauscher ‘Das Volk, die Zeitung und der “Alte”’ Der Standard 18.06.2010, 3. 100   VfSlg 8136/1977; VfSlg 10401/1985. 101   M Pöschl and A Kahl, ‘Die Intentionalität – ihre Bedeutung und Berechtigung in der Grundrechtsjudikatur’ (2001) Österreichische Juristenzeitung 41.

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reservations do not play a part in the modern fundamental rights doctrine which focuses on proportionality. B.  The Equality Clause As already pointed out, the equality clause is primarily binding on the administration, at least according to its phrasing. Nevertheless, the second sentence of the clause excludes privileges based upon birth, gender, estate, class or religion. In the monarchy, such privileges were often granted by law. One of the main historical aims of the equality clause was to overcome these privileges and the clause thus had an important impact on legislation. The grounds listed in the second sentence of the equality clause were seen as non-exhaustive. From this point of view, a general conclusion could be drawn that the equality clause prevented the legislator form discriminating against any unjust reason. Discrimination was, therefore, only admissible if it was based on reasonable or objective grounds (Sachlichkeitsgebot). Consequently, the Constitutional Court developed a specific ‘objectivity test’ (Sachlichkeitsprüfung). The starting point of this test is the idea that the equality clause essentially forces the legislator to treat equal issues in an equal manner. Unequal treatments are only tolerable if they are supported by valid arguments. The ‘objectivity test’ initially is based on the prerequisite that there are two different legal regulations to be compared with each other, whereby it is crucial which regulations and which aspects are chosen for comparison. When the Constitutional Court had to assess a provision of criminal law that declared a male homosexual relationship between an adult and a minor punishable by law, it had to deal with the argument that this provision violated the equal protection clause because similar lesbian relationships went unpunished. The court held that there were significant differences between homosexual male and lesbian relationships in view of reasons given by the government and, therefore, rejected the application.102 In a subsequent case the court had to assess the same criminal law provision in the light of the argument that the provision in question violated the equal protection clause on the grounds that a relationship that started between a sixteen-year-old and a seventeen-year-old went unpunished for one year and became punisha102

  VfSlg 12182/1989.



Binding Effect on the Legislation  243

ble during the second year only to go unpunished from the third year onwards. The applicant argued that this was unreasonable (nonobjective) and the court accepted the argument and rescinded the provision.103 Similarly, parliament is forced to treat unequal issues unequally unless there are valid reasons for an equal treatment. In this respect, the Constitutional Court held that limiting the opening hours of night clubs to the opening hours of restaurants would entail treating unequal issues equally and would, therefore, violate the equal protection clause.104 The jurisdiction of the Constitutional Court has now gone a step further: in many cases the court abstains from comparison of the regulation it reviews with another regulation but simply examines whether the regulation ‘is reasonable (objective)’. In doing so, it accepts that parliament has a wide leeway in defining valid reasons. The Constitutional Court applied the objectivity test as shown above literally in hundreds of cases and it has rescinded dozens of laws or related provisions on the ground that discrimination was not supported by a good cause. Nevertheless, it can be said that according to the high sophistication of the test (namely in assessing which provisions might be compared with each other) the jurisprudence of the court had the effect of fine-tuning legislation rather than striking down policy concepts.105 In this respect, the court has always accepted legislation that had provided for different legal systems in similar fields of administration. The court rejected comparing these legal systems with each other, thus guaranteeing equality only within the system. The most prominent example is probably the field of social security. The mandatory social insurance schemes are operated by various autonomous bodies. People are members of these bodies according to the profession(s) they exercise. Different legal systems apply, triggering different amounts of mandatory contributions and different benefits.106 As these systems are not compared with each other according to the jurisprudence of the Constitutional Court, it may, therefore, be perfectly legal if a civil servant receives less payment during maternity leave than an employee would be entitled to. 103

  VfSlg 16565/2002.   VfSlg 12923/1991. 105   M Pöschl, Gleichheit vor dem Gesetz (Wien, Springer, 2008) 204ff. 106  Tomandl, Grundriss des österreichischen Sozialrechts, n 22, 32f. 104

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The objectivity test is not even applied.107 It is also perfectly legal that people who exercise two professions or more might be forced to contribute to two or three insurance schemes, although they would not receive medical treatment twice or three times in case of illness. But when the court found that the equality clause was violated by women being entitled to old age pension five years earlier than men it severely challenged the political system.108 Although the court basically accepted the possibility of favouring women being reasonable because of the extra burden in raising children and organising family life, it held that the scheme under scrutiny typically benefited women who did not bear that extra burden. Nevertheless, pressure groups were strong enough to persuade parliament to enact a constitutional provision overriding the court’s ruling.109 It is interesting to see that in this case, as well as in other cases in which the court dealt with the question of equality between men and women, it found that men were disadvantaged. In 1998, Article 7 of the Federal Constitution was amended to the effect that it requires the Federation, states and municipalities to subscribe to the de facto equality of men and women. Measures to promote the actual equality of women and men (affirmative action), in particular by eliminating existing inequalities, are, therefore, admissible. In a similar way, a 1997 amendment to the constitution provides for the confirmation of the Federation, the states and the communities to promote equal treatment of disabled persons in all parts of everyday life. Although not stated explicitly, affirmative action seems to be admissible. V.  Binding Effect on the Jurisdiction

In theory, fundamental rights are also binding on jurisdiction. In particular the procedural guarantees enshrined in Articles 5 and 6 ECHR are paramount. As the Constitutional Court has no jurisdiction over the Administrative Court and ordinary courts, they have to ensure the application of these procedural guarantees. Only the ECtHR may perform a supervisory function. 107

  cf VfSlg 13829/1994.   VfSlg 12568/1990. 109   Bundesverfassungsgesetz über unterschiedliche Altersgrenzen von männlichen und weiblichen Sozialversicherten, BGBl 1992/832. 108



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It is also up to the ordinary courts which hear civil law cases to decide on a possible third party effect of freedom rights and the equality clause. The Supreme Court has accepted such an effect, especially of the equality clause. This has already been discussed in chapter six. Moreover, in its function as the highest criminal law court of the republic, the Supreme Court has emphasised its role as the guardian of fundamental rights in criminal law cases.110 VI. CONCLUSION

With the exception of a few spectacular cases, the objectivity test performed in accordance with the principle of equality, other than the proportionality test, has hardly challenged the policies implemented by parliament. Many rescissions of laws and/or legal provisions on the grounds that they failed the objectivity test went unnoticed by the public as they were of merely ‘technical’ importance. On the other hand, the proportionality test, although moderately applied, cut into a system in which political parties claimed to be in charge of handing out jobs and professional careers. To a certain extent, it opened markets which were organised as closed shops. But as the court introduced a more substantive approach to reading the constitution, it was not only heftily criticised by representatives of the political system calling for constitutional provisions to override the court’s judgments, but also by traditionalists among public law scholars. It may be fair to add that even supporters of a more substantive reading of the constitution criticised the style of the judgments pointing out that some of the court’s findings should be based on experts’ opinions rather than on the judges’ attitudes. The lack of transparency of the voting and of the possibility of issuing dissenting opinions certainly undermined an all-over acceptance of the court’s rulings. By demanding to interpret parliamentary statutes in accordance with the constitution, the court also forced the administration to implicitly perform the objectivity test and the proportionality test for which the administration in general was neither prepared nor trained. Some parts of administration, of course, were simply unwilling to follow the jurisprudence of the Constitutional Court. For quite some time they were largely backed by the Administrative Court, which stuck with the more 110

 See chapter six.

246  Fundamental Rights

traditional methods of reading administrative law. A struggle between the two courts ensued as already discussed in chapter six. However, applying the proportionality test has not only helped the Austrian legal system to adjust to the demands of the ECHR but also prepared the country for accession to the European Union with its devotion to a single market and the principle of proportionality which is enshrined in its entire legal system. Further Reading Baumgartner, G, ‘The Relationship between European and National Protection of Fundamental Rights’ in Weber, A (ed), Fundamental Rights in Europe and North America, Part A (Leiden-Boston, Martinus Nijhoff Publishers, 2001) 119ff. Berka, W, ‘Concretization of and Limitations on Fundamental Rights’ in Weber, A (ed), Fundamental Rights in Europe and North America, Part A (Leiden-Boston, Martinus Nijhoff Publishers, 2001) 47ff. ——, Die Grundrechte: Grundfreiheiten und Menschenrechte in Österreich (Wien, Springer, 1999). Brauneder, W, Die historische Entwicklung der modernen Grundrechte in Österreich (Wien, Verlag für Geschichte und Politik, 1987). Holoubek, M, Grundrechtliche Gewährleistungspflichten (Wien, Springer, 1997). ——, ‘Function and Interpretation of Fundamental Rights’, in Weber, A (ed), Fundamental Rights in Europe and North America, Part A (LeidenBoston, Martinus Nijhoff Publishers, 2001) 99ff. Korinek, K, Grundrechte und Verfassungsgerichtsbarkeit (Wien, Springer, 2000) . Lengauer, G, ‘Framing Campaigns: The Media and Austrian Elections’ in Bischof, G and Plasser, F (eds), The Changing Austrian Voter (New Brunswick-London, Transaction Publishers, 2008) 123. Machacek, R, Pahr, W and Stadler, G (eds), Grund- und Menschenrechte in Österreich (Kehl am Rhein-Straßburg-Arlington, N.P. Engel Verlag) Vol I: Grundlagen, Entwicklungen und internationale Verbindungen (1991), Vol II: Wesen und Werte (1992), Vol III: Wesen und Werte (1997). Merten, D and Papier, H-J (eds), Handbuch der Grundrechte in Deutschland und Europa, Vol VII/1: Grundrechte in Österreich (Wien, Manz and C.F. Müller, 2009). Pöschl, M, Gleichheit vor dem Gesetz (Wien, Springer, 2008). Schäffer, H and Jahnel, D, ‘The Protection of Fundamental Rights’ in Weber, A (ed), Fundamental Rights in Europe and North America, Part A (Leiden-Boston, Martinus Nijhoff Publishers, 2001) 75ff.



Further Reading  247 Stelzer, M, Das Wesensgehaltsargument und der Grundsatz der Verhältnismäßigkeit (Wien, Springer, 1991). ––—, ‘The Evolution of Fundamental Rights and its Influence on the Drafting of Fundamental Rights Instruments’ in Weber, A (ed), Fundamental Rights in Europe and North America, Part A (Leiden-Boston, Martinus Nijhoff Publishers, 2001) 18ff. ——, ‘Sources of Fundamental Rights’ in Weber, A (ed), Fundamental Rights in Europe and North America, Part A (Leiden-Boston, Martinus Nijhoff Publishers, 2001) 13ff. Stelzer, M, Bernert, I and Kronbichler, M, ‘Schools and Religion Relation: Austria’ (2005) ERLP/REDP 223ff.

Conclusion and Perspectives

T

he introduction of the proportionality test by the Constitutional Court as described in the chapter above really marked a turning point in the history of the Austrian Republic and its constitution. Remarkably, it coincided with the demise of the nationalised industry and the stable political system of the post-war period that saw two parties – the conservative People’s Party and the Social Democrats – sharing the power. The system was supported by the social partnership, an institution which operated outside the constitution (at least until 2008). Arguably, it was responsible for the economic growth of the country and the social harmony Austria was admired for in many parts of the world. On the other hand, the stable political system that produced grand coalition governments sometimes supported by more than 90 per cent of the National Council members with the dominant influence of the social partners on legislation suppressed the development of parliamentarianism. Decisions were taken by the Federal Cabinet or social partner institutions behind closed doors and acclaimed by parliament. The written constitution was, thus, set aside by an efficient constitution featuring the party system. Apart from that, the political parties – again the People’s Party and the Social Democrats – enjoyed a two-thirds majority which enabled them to amend the constitution almost at will thus setting no effective limits to the power of the two political parties if jointly exercised. The core document of the constitution, the 1920 Federal Constitu­ tional Law, re-enacted in 1945 in its 1929 version, only formally stemmed from the year 1920. Many institutions such as the entire court system, the administrative system, the autonomy of municipalities and the fundamental rights charter had already been developed during the Hapsburg Monarchy and were simply transferred to the republic. Even the federal system had its roots in the constitution of the monarchy. In substance, Austrian public lawyers appreciated this historical context by reading the constitution in a retrospective manner which subconsciously led to a glorification of the monarchy and prevented the development of a republican identity without referring to Austria’s monarchical past.

250  Conclusions and Perspectives

This retrospective approach after WWII also allowed the erasure of the ‘dark’ period of Austria’s history – the decade between 1934 and 1945 – from its collective memory. This period was, therefore, neither properly reviewed by post-war society nor was Austria’s contribution to the establishment of fascist dictatorships in Europe assessed. In particular, the glorification of the monarchy seems to have concealed the fact that one of the first parties devoted to National Socialism was founded on the soil of the Hapsburg Monarchy by German speaking bohemians. Not only did the Austrian roots of fascism remain unexplored, but the re-enactment of the 1920 Constitution also prevented a discussion on the substance of the constitution and possible amendments to empower democracy, freedom rights and the rule of law. Even after WWII, the political parties could not agree on a moral concept underlying the constitution. Only the declaration of Austria’s eternal neutrality represented a more substantive ‘value’ both political parties could support. ‘Neutrality’ shaped Austria’s position during the Cold War. The first and greatest challenge to Austria’s constitutional system came from the ECHR and the ensuing jurisprudence of the ECtHR. It forced Austria to enact substantial reforms to its system of administrative review, which were only pursued half hearted still leaving some questions unanswered. Partly following the jurisprudence of the ECtHR, partly arguing along a line that was already developed in the case law of the Constitutional Court, a more substantive reading of the constitution led to the introduction of the proportionality test, thus, challenging the traditional methods of interpreting constitutional law. This methodological dispute still dominates Austrian constitutional law doctrine. Although this dispute will never be decided at a theoretical level, agents of a more substantive reading of the constitution are better prepared to deal with the requirements of EU law than traditionalists. The 1994 accession to the European Union has further challenged Austria’s constitutional system, especially with regard to its federal system. Many constitutional lawyers believe that the constitution is in need of a substantial reform, specifically focusing on the charter of fundamental rights, the system of administrative and constitutional review and the federal structures. A Constitutional Convent had produced some comprehensive suggestions which have not (yet) led to a major reform. In many ways such a major reform would involve overcoming the legacy of the monarchy. But overcoming this legacy may also help to



Conclusions and Perspectives  251

address Austria’s past properly. Its daemons which emerged in the 1980s together with the demise of the stable post-war system are still haunting the republic. It remains to be seen if substantial and comprehensive reforms will be enacted or if the operators of the political system will just keep on tinkering.

Glossary English – German

Administrative Court

Verwaltungsgerichtshof

Administrative decision

Bescheid

Administrative ruling

Bescheid

Alliance for the Future of Austria

BZÖ, Bündnis Zukunft Österreich

Allocation of competences

Kompetenzverteilung

Allocation of powers

Kompetenzverteilung

Assigned sphere of power

übertragener Wirkungsbereich

Asylum Court

Asylgerichtshof

Austrian Association of Cities and Towns

Österreichischer Städtebund

Austrian Association of Municipalities

Österreichischer Gemeindebund

Austrian Broadcasting Corporation Österreichischer Rundfunk, ORF Austrian Federal Economic Chamber

Österreichische Bundes-Wirtschaftskammer

Austrian Freedom Party

Freiheitliche Partei Österreichs

Austrian Industry Holding plc

Österreichische Industrieholding AG, ÖIAG

Austrian People’s Party

ÖVP, Österreichische Volkspartei

Austrian Trade Union Federation

Österreichischer Gewerkschaftsbund

Autonomous bodies

Selbstverwaltungskörper

Cabinet Minister

Bundesminister

Chamber of Agriculture

Landwirtschaftskammer

Chamber of Labour

Arbeiterkammer

Christian Social Party

Christlich-soziale Partei

254  Glossary Conference of the State Governors

Landeshauptleutekonferenz

Constitutional Court

Verfassungsgerichtshof

Diet

Landtag (monarchisch)

District Courts

Bezirksgerichte

Federal Assembly

Bundesversammlung

Federal Cabinet

Bundesregierung

Federal Chancellor

Bundeskanzler

Federal Council

Bundesrat

Federal Diet

Bundestag

Federal Government

Bundesregierung

Federal Law Gazette

Bundesgesetzblatt

Federal Minister

Bundesminister

Federal President

Bundespräsident

Federal Procurement Authority

Bundesvergabeamt

First Republic

Erste Republik (1918–1938)

German Federal Constitutional Court

Bundesverfassungsgericht

German National Socialist Labour Deutsche Nationalsozialistische Arbeiter Party Partei – DNSAP Green Party

Die Grünen

Government bill

Regierungsvorlage

Imperial Council

Reichsrat

Imperial Law Court

Reichsgericht

Independent Administrative Tribunals in the States

Unabhängige Verwaltungssenate der Länder – UVS

Independent Environmental Tribunal

Unabhängiger Umweltsenat

Independent Federal Asylum Tribunal

Unabhängiger Bundesasylsenat

Indirect Federal administration

mittelbare Bundesverwaltung



Glossary  255

Integration Conference

Integrationskonferenz der Länder

Liberal Forum

Liberales Forum

Main Standing Committee (of the National Council)

Hauptausschuss des Nationalrates

Minister

Bundesminister

National Council

Nationalrat

Ombudsman Board

Volksanwaltschaft

Ordinance

Verordnungen

Ordinary jurisdiction

ordentliche Gerichtsbarkeit

Own sphere of powers

eigener Wirkungsbereich

Petrification doctrine

Versteinerungsdoktrin

Popular petition

Volksbegehren

Principle of Legality

Legalitätsprinzip

Principle of Rechtsstaat

Rechtsstaatsprinzip

Private law administration

Privatrechtsverwaltung, Privatwirtschaftsverwaltung

Provincial Courts

Landesgerichte

Provincial Courts of Appeal

Oberlandesgerichte

Provisional National Assembly

Provisorische Nationalversammlung

Public administration

Hoheitsverwaltung

Public Audit Office

Rechnungshof

Republic of German Austria

Republik Deutschösterreich

Reservation of interference

Eingriffsvorbehalt

Reservation of law

Vorbehalt des Gesetzes

Second Republic

Zweite Republik (1945­– )

Self-administering bodies

Selbstverwaltungskörper

Self-administration

Selbstverwaltung

Self-governing bodies

Selbstverwaltungskörper

Simple law

einfaches Gesetz

Social Democratic Party of Austria SPÖ, Sozialdemokratische Partei Österreichs

256  Glossary Social partners

Sozialpartner

Social Partnership

Sozialpartnerschaft

Standing Orders

Geschäftsordnung

State administrative courts

Landesverwaltungsgerichte

State Council

Staatsrat

State Government; State Cabinet

Landesregierungen

State Governor

Landeshauptmann

State Law Gazette

Landesgesetzblatt

State Parliament

Landtag (republikanisch)

State Secretary

Staatssekretär

States

Länder

Supreme Court

Oberster Gerichtshof

Union of Independents

VdU, Verband der Unabhängigen

German – English

Arbeiterkammer

Chamber of Labour

Asylgerichtshof

Asylum Court

Bescheid

Administrative decision; administrative ruling

Bezirksgerichte

District Courts

Bundesgesetzblatt

Federal Law Gazette

Bundeskanzler

Federal Chancellor

Bundesminister

Cabinet Minister, Federal Minister, Minister

Bundespräsident

Federal President

Bundesrat

Federal Council

Bundesregierung

Federal Cabinet, Federal Government

Bundestag

Federal Diet



Glossary  257

Bundesverfassungsgericht

German Federal Constitutional Court

Bundesvergabeamt

Federal Procurement Authority

Bundesversammlung

Federal Assembly

BZÖ, Bündnis Zukunft Österreich

Alliance for the Future of Austria

Christlich-soziale Partei

Christian Social Party

Deutsche Nationalsozialistische Arbeiter German National Socialist Labour Party Partei – DNSAP Die Grünen

Green Party

eigener Wirkungsbereich

Own sphere of powers

einfaches Gesetz

Simple law

Eingriffsvorbehalt

Reservation of interference

Erste Republik (1918-1938)

First Republic

Freiheitliche Partei Österreichs

Austrian Freedom Party

Geschäftsordnung

Standing Orders

Hauptausschuss des Nationalrates

Main Standing Committee (of the National Council)

Hoheitsverwaltung

Public administration

Integrationskonferenz der Länder

Integration Conference

Kompetenzverteilung

Allocation of powers, allocation of competences

Länder

States

Landesgerichte

Provincial Courts

Landesgesetzblatt

State Law Gazette

Landeshauptleutekonferenz

Conference of the State Governors

Landeshauptmann

State Governor

Landesregierungen

State Government; State Cabinet

Landesverwaltungsgerichte

State administrative courts

Landtag (monarchisch)

Diet

Landtag (republikanisch)

State Parliament

258  Glossary Landwirtschaftskammer

Chamber of Agriculture

Legalitätsprinzip

Principle of Legality

Liberales Forum

Liberal Forum

mittelbare Bundesverwaltung

Indirect Federal administration

Nationalrat

National Council

Oberlandesgerichte

Provincial Courts of Appeal

Oberster Gerichtshof

Supreme Court

ordentliche Gerichtsbarkeit

Ordinary jurisdiction

Österreichische BundesWirtschaftskammer

Austrian Federal Economic Chamber

Österreichische Industrieholding AG, ÖIAG

Austrian Industry Holding plc

Österreichischer Gemeindebund

Austrian Association of Municipalities

Österreichischer Gewerkschaftsbund

Austrian Trade Union Federation

Österreichischer Rundfunk, ORF

Austrian Broadcasting Corporation

Österreichischer Städtebund

Austrian Association of Cities and Towns

ÖVP, Österreichische Volkspartei

Austrian People’s Party

Privatrechtsverwaltung, Privatwirtschaftsverwaltung

Private law administration

Provisorische Nationalversammlung

Provisional National Assembly

Rechnungshof

Public Audit Office

Rechtsstaatsprinzip

Principle of Rechtsstaat

Regierungsvorlage

Government bill

Reichsgericht

Imperial Law Court

Reichsrat

Imperial Council

Republik Deutschösterreich

Republic of German Austria

Selbstverwaltung

Self-administration

Selbstverwaltungskörper

Self-administering, self-governing or autonomous bodies

Sozialpartner

Social partners



Glossary  259

Sozialpartnerschaft

Social Partnership

SPÖ, Sozialdemokratische Partei Österreichs

Social Democratic Party of Austria

Staatsrat

State Council

Staatssekretär

State Secretary

übertragener Wirkungsbereich

Assigned sphere of power

Unabhängige Verwaltungssenate der Länder – UVS

Independent Administrative Tribunals in the States

Unabhängiger Bundesasylsenat

Independent Federal Asylum Tribunal

Unabhängiger Umweltsenat

Independent Environmental Tribunal

VdU, Verband der Unabhängigen

Union of Independents

Verfassungsgerichtshof

Constitutional Court

Verordnungen

Ordinance

Versteinerungsdoktrin

Petrification doctrine

Verwaltungsgerichtshof

Administrative Court

Volksanwaltschaft

Ombudsman Board

Volksbegehren

Popular petition

Vorbehalt des Gesetzes

Reservation of law

Zweite Republik (1945– )

Second Republic

Index Introductory Note References such as ‘178–9’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about the ‘Austrian Constitution’, the use of this term (and certain others which occur constantly throughout the book) as an entry point has been minimised. Information will be found under the corresponding detailed topics. abortion 189, 199, 219–20 absolute majorities 68, 110, 115, 131 absolute monarchy 2–5 abstract judicial review 199–200 accountability 73, 96–100, 130    Federal Cabinet/Ministers 130–1    Federal President 120–3 administration    federal 19, 62, 96, 108, 125, 145    financial 102, 169    and fundamental rights 222–30    private law 92–3, 258    public 17, 24, 61, 87–8, 103, 154    of public funds 101–2    separation from jurisdiction 178–88    state 19, 88, 168, 172 administrative authorities 50–1, 179–81, 192, 194, 223–6, 228–30    independent 181, 200 Administrative Court 6, 20–1, 175–8, 182, 186–8, 225    powers pertaining to Constitution 192–7 administrative courts, state 130, 153, 197, 205, 256–7 administrative decisions 6, 34, 112, 132–3, 176, 178–9 administrative review 129, 175, 182, 187, 197–8, 225 administrative rulings 23, 187, 194–6, 198, 209–10, 223–5 Agriculture, Chambers of 56–7, 79 Alliance for the Future of Austria 67, 253, 257 allocation of powers/competences 134, 147, 151, 153–64, 166–7, 199    function and principles 153–4

  general 154–9    interpretation of regulations regarding competences 160–4   special 159–60 amendments, constitutional 7, 18, 20, 29, 107–9, 140–1 annexation 12, 51 anti-semitism 12, 117 appointment, Federal Cabinet 19, 123–5 assessment of demand 235–7 assessment procedure 78–9 Association of Cities and Towns, Austrian 138, 253, 258 Association of Municipalities, Austrian 138, 253 associations 55, 59, 63, 78, 161, 225–7 Asylum Court 18, 20, 128, 186–8, 198, 204 Austrian Association of Cities and Towns 138, 253, 258 Austrian Association of Municipalities 138, 253 Austrian Broadcasting Corporation 104, 238, 240–1, 253 Austrian Federal Economic Chamber 79, 172, 253, 258 Austrian Freedom Party 15, 253, 257 Austrian Industry Holding plc 144–5, 253, 258 Austrian People’s Party 13, 253, 258 Austrian Trade Union Federation 56, 79, 253, 258 Austro-Hungarian monarchy see monarchy authentic versions 18, 142–3 authentication 77–8, 165 autonomous public bodies 18–19, 56, 108, 128, 130, 171–3 autonomous sphere 5, 134, 155, 167

262  Index balancing decisions 226–7 banks, nationalised 133, 145 basic principles 1, 32–7, 211 bills    draft 57, 78, 82–3, 187, 198–9   government 78–9 binding opinions 94 borders 2, 28, 135, 151, 162, 166 broadcasting 104, 144, 238, 240–1, 253 budgets, federal 18, 83, 96, 138–41, 149 Burgenland 75, 149, 212 Cabinet, Federal see Federal Cabinet Cabinet Ministers 74, 97–8, 124, 127, 134, 136 Cabinets, State 19, 152, 170, 172, 199, 256–7 campaigns, election 53–4, 107, 115 candidates 65, 68–70, 111, 116, 123–4, 188–9 Carinthia 48, 75, 212 Catholic Church 44–5, 220 centralised constitutional review 175, 177, 192, 201, 205 centralised State 8–9 centre of state authority 18, 61 Chamber of Labour 56–7, 79, 172, 210, 236, 253 Chambers of Agriculture 56–7, 79, 253, 258 Chambers of Commerce 56–7, 236 Chancellor    Federal 74, 77–8, 86–7, 111–12, 123–5, 142–4    Vice 78, 123–6 character of Constitution 18–31    hierarchy of norms 23–7    interpretation 28–31, 163, 177, 194, 250    main features 18–20    written and efficient 20–3 charges, criminal 176, 181, 184, 205 children 66, 162, 194, 216 Christian Socials 8, 11, 13, 43–5 Church, Catholic 44–5, 220 citizenship 151–2 civil law 4, 157, 178, 180, 207–8, 217–18    courts 4, 73, 191, 197, 207, 218 civil rights 88, 153, 179, 181–3, 185, 205 see also fundamental rights civil servants 9, 56, 78, 104, 124, 132–3 civil service 82, 103, 108, 127, 132–3, 145 clubs 42, 71–2, 97, 243    parliamentary 45, 54–5, 71–2, 75, 84, 97 coalition governments 8, 78–9, 92, 99, 115–17, 123–6    grand 24, 44–6, 63, 67, 99–100, 114–15

committees of inquiry 98–9 Communist Party 13, 15, 43 competences 28, 85, 101, 149, 171, 198 see also powers    allocation of 134, 147, 151, 153–64, 166–7, 199 complaints 103–4, 185–6, 192, 195–6, 211 compulsory membership 56, 58, 171 concrete judicial review 199–200 Conference of the State Governors 76, 254, 257 confidence votes 100, 112, 123, 131 conflicts 9, 11, 25–6, 36–7, 118, 122–3    social 57–8, 209 consensus 29–30 consent, parliamentary 81, 134, 176 Conservatives 7, 9–11, 13, 66, 115, 118   emergence 44–5 constituencies 41, 66, 68–9 Constitution see Introductory Note constitutional amendments 7, 18, 20, 29, 107–9, 140–1 Constitutional Convention 17–18, 129, 158, 210 Constitutional Court 29–36, 87–92, 175–9, 193–205, 210–13, 219–39    powers pertaining to Constitution 197–204 constitutional doctrine 1, 23, 32–3, 36, 70, 87    German 214, 234, 238 constitutional monarchy 5–6 constitutional review 25, 177, 197, 218, 238, 250    centralised 175, 177, 192, 201, 205 constitutionality 20, 54, 119, 187, 200–1, 225 constitutionally guaranteed rights 210 contracts 92–3, 132, 181, 191, 218, 232 courts    see jurisdiction; highest courts    provincial 4, 20, 255 criminal charges 176, 181, 184, 205 criminal law 4, 157, 177, 180, 184, 190–1    courts 20, 177, 190, 192, 197, 200 data privacy 98–9 decentralised unitary state 148, 151 defensive rights 207, 213–14 deference 231 delegation of legislative powers 87–93 demand, assessment of 235–7 democracy 9–11, 14, 36, 51–2, 119, 127–9    Austrian 36, 92, 127    representative 39, 53, 89

democratic legitimation 113, 128–9 democratic principle 1, 24, 32–4, 203 democratic responsibility 128–9, 172 devolution 149–51 devolved powers 149, 166–7 direct administrative power 185, 187, 220, 225 direct application 195–6, 201 direct elections 10, 42, 109–10, 121 directives, European Union 21, 93, 204 disciplinary measures 72, 226, 228 discrimination 213, 242–3 division of powers 9, 28, 34, 89, 92 draft bills 57, 78, 82–3, 187, 198–9 draft constitutions 4, 17, 95, 148 e-government 108, 141–3 ECJ see European Court of Justice economic powers 139–40 ECtHR see European Court of Human Rights efficient constitution 1, 12, 20, 40, 92–3, 99–100 election campaigns 53–4, 107, 115    presidential 110, 240 elections 41, 44–8, 67–8, 110–11, 116, 164–5    direct 10, 42, 109–10, 121    general 45–8, 75–6, 113–14, 122–3, 139, 170–1 electoral parties 40–1 electoral reform 67 electoral system 18, 40–1, 44, 61, 65–9, 71 electorate 54, 68–9, 71, 77–8, 80–1, 164 employment, free 30, 201, 223, 226, 235–6 enforcement 97–8, 158, 169 environmental protection 47, 53, 158 equal protection clause 228, 242–3 equal treatment 227, 243–4 equality 53, 151, 191, 202, 209–12, 217–19    clause 231, 242–5 EU laws 21, 144, 213, 250 European Court of Human Rights (ECtHR) 30, 181–5, 190–1, 219–22, 229–30, 238–40 European Court of Justice (ECJ) 23, 26–7, 31, 95, 168, 204 European integration process 37, 117, 167–8 European law 25–7, 31, 79, 141, 194, 227 European Parliament 73, 93, 109, 137, 198 European Union 16–17, 93–5, 133–8, 157– 8, 204–5, 213

Index  263    and executive branch 137–8    legislation 77, 147     Federal participation 93–5     participation by states 167–8 execution 154, 159, 165 executive branch 61–2, 76, 93, 107–46, 209    civil service 82, 103, 108, 127, 132–3, 145    e-government 108, 141–3    and European Union 137–8    federal budget 138–41    Federal Cabinet see Federal Cabinet    Federal President see Federal President    foreign affairs 133–8    highest authorities 108–9    and nationalised industries 143–5   oversight 96–104 executive powers 88, 98, 153, 169, 171, 180 expropriations 183, 223, 235 expulsion 51, 194, 226 external powers 147    state legislation 166 families 66, 213, 216 family life 194–5, 221, 226 farmers 45, 56, 160–1 fascism 10–12, 250 federal administration 19, 62, 96, 108, 125, 145   indirect 169–70 Federal Assembly 8, 62, 109, 111, 113, 121–2 Federal Asylum Tribunal 128, 204 federal budget 18, 83, 96, 138–41, 149 Federal Cabinet 77–8, 107–9, 112–14, 123– 31, 136–9, 145   accountability 130–1    appointment 19, 123–5    direction of the administration 127–30   powers 125–7 Federal Chamber of Commerce 56–7 Federal Chancellery 18, 142, 165 Federal Chancellor 74, 77–8, 86–7, 111–12, 123–5, 142–4 Federal Council 17, 19, 61–2, 93–5, 98, 121–2    assembly and legal status 74–6    legislative role 83–4 Federal Diet 11–12 federal government 62, 64, 66, 68, 92–4, 236–7    executive branch 61–2, 76, 93, 107–46, 209    legislative branch 62–105, 126, 137

264  Index federal law 25–6, 142–3, 149–52, 156, 169, 199 Federal Ministers 62, 78, 108, 124–7, 144–5, 195–6 see also Federal Cabinet   accountability 130–1 federal parliament 18–19, 28, 33–5, 61, 62–5, 159–61   composition 65–74    legislative function 77–95    National Council see National Council    oversight function 96–104 Federal President 62–3, 73–5, 84–5, 100–1, 107–8, 109–23   accountability 120–3    election and legal position 109–11    powers 111–20, 122–3, 126 federal principle 1, 24, 32–4, 116, 152–3 Federal Procurement Authority 109, 128, 186–7, 200, 254, 257 federal state see federalism federalism 9, 17, 19, 68, 75, 147–73    allocation of powers/competences 134, 147, 151, 153–64, 166–7, 199    history and concept 148–53    indirect federal administration 169–70    municipal government 171–3    State Governors’ role 169–70    and state legislation 164–8 fees 52, 56 filibustering 64, 82 Finance Constitution 159–60 financial administration 102, 169 First Republic 6, 12, 14, 37, 43, 45 fiscal year 138, 140 foreign affairs 133–8 foreigners 184, 194–5, 221, 226–7 formal reservations of interference 231–2, 237 FPÖ see Freedom Party free employment 30, 201, 223, 226, 235–6 free mandate 70–2 free markets 3, 31, 237 freedom 195, 217, 219–23, 226–7, 234–5, 241 Freedom Party (FPÖ) 46–8, 58–9, 67–8, 79, 103, 115–17 freedom rights 30, 203, 213–15, 219, 222–3, 231–42 functionaries, public 73–4, 111, 165 fundamental rights 5, 9, 30–1, 90, 190–2, 207–46    binding effect on administration 222–30    binding effect on jurisdiction 244–5    binding effect on legislation 231–44

  character 208–15    charter 9, 30, 207–8, 217, 249–50    general aspects 208–22   history 208–15   interpretation 219–22    new charter of 16–17, 210    social rights and social welfare system 215–17    third party effect 207, 217–18 funding, political parties 40, 52–4, 55, 59 funds, public 101–2 general allocation of powers 154–9 general elections 45–8, 75–6, 113–14, 122–3, 139, 170–1 general principle of equality 209–10, 212 general rights of nationals 5, 209–11, 222, 231–2, 234–5, 237–8 German constitutional doctrine 214, 234, 238 German Federal Constitutional Court 30, 54, 135, 214–15, 218, 234 German fundamental rights doctrine 219, 234 German Nationals 6–7, 10, 43, 59   emergence 45–6 Germany 7, 9, 11–12, 14, 92, 218–19 government, federal see federal government government bills 78–9 governments, state see state governments Governors, State 68, 76, 134, 165–6, 168–70, 256–7 grand coalition governments 24, 44–6, 63, 67, 99–100, 114–15 Green Party 21, 47–8, 58–9, 64, 67–8, 103 grounds, substantive 118–20, 122 guarantees 5, 27, 71–2, 182, 184, 213–14    procedural 209, 244 Hapsburg monarchy see monarchy hierarchy 73–4    of norms 23–7    party 105, 126 higher ranked norms 24–5 highest authorities 20, 63, 108–9, 128, 184 highest courts 20, 175–8, 188–91, 193–5, 197, 203   organisation 188–9    powers pertaining to Constitution 190–204 history 2–18, 50–1, 108, 113–14, 154–5, 249–50    absolute monarchy 2–5

   constitutional monarchy 5–6   federalism 148–53    First Republic, Civil War and Authoritarian Regime 6–13    fundamental rights 208–15    Second Republic 13–18 Holy Roman Empire 3–4 House of Hapsburg see monarchy human rights 117, 194, 207, 214, 238 see also fundamental rights Imperial Council 5–6, 42, 148, 254, 258 Imperial Law Court 5–6, 176, 197, 209, 254, 258 income pyramid 73–4, 111 independence 6, 13, 69, 135, 180–2, 184 independent administrative authorities 181, 200 Independent Administrative Tribunals 17, 128, 184–7, 200 independent authorities 18–20, 108, 129–30, 144, 205 independent bodies 187–8 independent tribunals 128, 153, 175, 181–2, 184 indirect federal administration 169–70 industrial permission 28, 160–1 industries, nationalised 39, 92–3, 108, 154, 249 information 78, 95, 98, 126, 129, 141 initiatives   legislative 78–81   popular 80–1 inquiry, committees of 98–9 institutions 29, 40, 61–3, 77–8, 101–2, 249    constitutional 33, 39, 85    most powerful 62, 100, 107    social partner 57, 79, 249   state 164–5 Integration Conference 76, 168, 255, 257 integrative policy 94, 168 interests, public 31, 219, 226, 232, 235–7, 241 interference 201, 221–3, 231–2, 234–5, 237–8, 241    reservations of see reservations of interference international law 12, 25–6, 134, 167 international organisations 108, 136–7 international treaties 18, 108, 134–6, 137, 145, 166–7 interpretation    character of Constitution 28–31, 163, 177, 194, 250

Index  265    fundamental rights 219–22    retrospective 34, 161–2 interrogation, right to 64, 97–8, 105, 131 intra-systematic development 28, 162–3, 173 Italian system 68 Jehovah’s Witnesses 195–6, 229 joint constitution 150–1 Joseph II 3–4 judges 129, 176, 178, 184–5, 188–90, 203 see also jurisdiction judicial review 27, 34, 91, 151, 199   abstract 199–200   concrete 199–200 jurisdiction 4–5, 92, 111, 153, 175–205, 209–10   concept 176–8    and fundamental rights 244–5    organisation of highest courts 188–9    separation from administration 178–88 jurisprudence 30–1, 193–5, 201–2, 211–12, 221–2, 230–2 Klestil, President 116–17 Labour, Chamber of 56–7, 79, 172, 210, 236, 253 law-making procedures see legislative procedures laws, review of 6, 20, 119, 176, 197–9, 202–4 legal basis 30, 52–3, 88, 135, 166, 223–5 legality, principle of 87–8, 90–2, 223, 255, 258 legislation see also legislative function    federal 62, 76, 93, 96, 156    and fundamental rights 231–44    state 147, 150–1, 163, 164–8, 171, 199 legislative branch 62–105, 126, 137    electoral system see electoral system    Federal Council see Federal Council    federal parliament see federal parliament    legal status of members of National Council 69–74    legislative function 77–95    Ombudsman Board 17–18, 62, 101, 103–4    oversight function 96–104    Public Audit Office 55, 62, 73, 101–3 legislative function 77–95    delegation of legislative powers 87–93    legislative procedures 36, 63, 72, 77–87, 92–3, 118–19    participation in EU legislation 93–5 legislative initiative 78–81

266  Index legislative powers 2, 33–4, 58, 107, 119, 134   delegation 87–93 legislative principles 155–6 legislative procedures 36, 63, 72, 77–87, 92–3, 118–19    deliberation and voting 81–3    Federal Council role 83–4    legislative initiative 78–81    popular initiative 80–1    referenda 1–2, 23–4, 35–6, 84–7, 121–2, 135–7 legislative process 5, 8, 83, 86, 92–3, 95 legislative proposals 77, 79–80 legitimation 88–9, 113, 128–9 Liberal Forum 48, 53, 255, 258 liberal principle 33, 213, 232 liberty, personal 209–11, 221 licences 235–8 lists, party 68–9, 170 Lower Austria 75, 170 lower ranked norms 23–5

National Council 61–5, 77–84, 93–5, 109– 13, 118–24, 138–9    legal status of members 69–74 national law 26–7 National Socialism 9, 15, 50–1, 59, 117, 240 nationalised banks 133, 145 nationalised industries 39, 92–3, 108, 154, 249    and executive branch 143–5 nationality 117, 213 nature conservation 163–4 Nazi regime 12, 15, 51, 115, 117, 211 neutrality 16, 250 new public management see NPM nomination 113, 138, 176, 186 norms 23–7, 30, 79, 200–1    hierarchy of 23, 25–7    higher ranked 24–5    lower ranked 23–5 NPM (new public management) 102 nuclear power stations 85–6

Main Standing Committee 103, 138 majorities 22–3, 63–4, 75, 98–100, 149–51, 189    absolute 68, 110, 115, 131    parliamentary 81, 127 majority decisions 98–9 maladministration 103–4 mandate, free 70–2 mandatory referenda 27, 32, 86, 211, 213 markets 145, 213, 235–7, 240–1    free 3, 31, 237 mayors 162, 171–2 media 81–2, 99, 103–4, 122, 131, 133 members of parliament 48, 53, 69, 71, 73, 98 members of tribunals 130, 182 membership, party 39, 43, 48, 68, 111, 132–3 Miklas, President 113–14 Ministers    Cabinet 74, 97–8, 124, 127, 134, 136    Federal 62, 78, 108, 124–7, 144–5, 195–6 minorities 7, 98–100, 211–12 modus austriacus 22, 28–9, 238 monarch 3, 62, 88, 96, 148, 176 monarchical constitution 179, 223 monarchy 1–12, 29, 40–4, 148, 176–7, 249–50   absolute 2–5   constitutional 5–6 moral concepts 8, 21, 29–30, 37, 89, 224 municipal government 5, 17, 55, 92, 154–5, 171–3

objectivity 238–9    test 208, 242–5 occupation 11–12, 111 official translations 18–19, 171 officials 39, 57, 109, 126–7, 132 Ombudsman Board 17–18, 62, 101, 103–4 opposition 46, 63–4, 73, 97–8, 100, 131    parties 43, 64, 80–2, 95, 97, 99    rights 64, 100 order, alphabetical 75, 127 ordinary courts 43, 176, 179, 191, 244–5 oversight function 96–104 parliament, federal see federal parliament parliamentarianism 14, 21, 41–2, 51, 64–5, 96–7 parliamentary clubs 45, 54–5, 71–2, 75, 84, 97 parliamentary consent 81, 134, 176 parliamentary statutes 61, 202, 222–6, 229–31, 245 parliaments, state 19, 61–2, 74–6, 80, 93, 164–6 parties 8–9, 13–16, 42–8, 50–6, 66–72, 122–7    coalition 63, 124   electoral 40–1    opposition 43, 64, 80–2, 95, 97, 99    small 47–8, 54, 64, 125    third 96, 109, 188–9, 229 partners, social 12, 39–40, 54–9, 68–9, 77–9, 249

partnership, social see social partnership party hierarchy 105, 126 party lists 68–9, 170 party membership 39, 43, 48, 68, 111, 132–3 party statutes 43, 68 party system 13, 20, 53–5, 58, 68, 125   development 40–8 peaceful exploitation of nuclear power 85–6 People’s Party 45–8, 54–6, 66–9, 98–9, 115–18, 188–9 personal liberty 209–11, 221 perspectives 143, 249–51 petrification 28, 160–3 planning law 90–1 police authorities 185, 226–7 police state 208–9 political liability 97, 131 political parties 39–54, 55–9, 74–8, 111–12, 130–3, 143–5    1980s onwards 47–8    development of party system 40–8    and electoral parties 40–1    founding of 40, 49, 49–52    law on 49–54    public funding 40, 52–4, 55, 59 political powers 16, 47, 74, 107, 115, 117 political scientists 13, 40, 47, 52, 63–4, 82 political system 8, 30–1, 114–16, 145, 229–30, 244–5 political treaties 134–5 politicians 11, 17, 36, 73, 104, 126–7 popular initiative 80–1 powers 33–5, 93–6, 110–20, 170–3, 175–80, 196–9    allocation of 134, 147, 151, 153–64, 166–7, 199   delegation 87–93    devolved 149, 166–7    direct administrative 185, 187, 220, 225    division of 9, 28, 34, 89, 92   economic 139–40    executive 88, 98, 153, 169, 171, 180   external 147    Federal Cabinet 125–7    Federal President 111–20, 122–3, 126    highest courts 190–204    legislative 2, 33–4, 58, 107, 119, 134    political 16, 47, 74, 107, 115, 117    separation of 5, 17, 33, 130, 178–9    state 137, 149, 151–2, 155 preferential treatment 104, 228–30 President, Federal see Federal President presidential election campaign 110, 240 principalities 2–3, 148

Index  267 privacy, data 98–9 private law 92, 154, 166, 176, 193, 217    administration 92–3, 258 privatisation process 93, 144–5 procedural guarantees 209, 244 procedures   assessment 78–9    law-making 63, 72, 77, 87, 93, 118–19    legislative 36, 76, 77–87, 92 property 47, 183, 223, 232    clause 209, 213, 223, 232, 234 proportional representation 40, 47, 65–7, 165 proportionality 30–1, 203, 235–9, 241–2, 245–6, 249–50    test 66, 208, 235–9, 241, 245–6, 249–50 proposals, legislative 77, 79–80 provincial courts 4, 20, 255 provisional constitutions 6, 14 Provisional National Assembly 6, 255, 258 public administration 17, 24, 61, 87–8, 103, 154 Public Audit Office 55, 62, 73, 101–3 public bodies 171–2    autonomous 18, 171–3 public functionaries 73–4, 111, 165 public functions 39, 133, 209 public funding 40, 53–5, 59 public funds, administration of 101–2 public interests 31, 219, 226, 232, 235–7, 241 public law 20–1, 32, 64, 102, 154, 181    courts 1, 6, 20, 54, 176, 194 public posts 73–4 public procurement laws 35, 93, 154, 159 publication 77–8, 142–3, 165, 202 pyramid 24–5, 73–4    income 73–4, 111    step 23–4, 30, 135, 177, 193, 208 quorum 82, 125, 136, 151 railway system 155, 163–4 ratification 134–6 re-election 76, 110, 112, 118 Rechtsstaat 1, 24, 31–5, 43, 129, 205 referenda 1–2, 23–4, 35–6, 84–7, 121–2, 135–7    mandatory 27, 32, 86, 211, 213 reforms 4, 17, 139–40, 170, 178, 250    comprehensive 18, 79, 159, 187, 251 religious groups 195, 229 religious societies 195–6, 229 representative democracies 39, 53, 89 rescissions 31, 82, 201–2, 224, 245

268  Index reservations 180, 184–5, 200, 225, 227, 238    of law 88, 255, 259 reservations of interference 223, 231, 238, 241    formal 231–2, 237    substantial 231, 238, 241 retrospective interpretation 34, 161–2 retrospective methods 28–9, 164, 203, 234 revenues 138–9 review 118–19, 182–3, 186–7, 190–2, 197– 200, 224–5    administrative 129, 175, 182, 187, 197–8, 225    constitutional 25, 177, 197, 218, 238, 250    judicial 27, 34, 91, 151, 199    of laws 6, 20, 119, 176, 197–9, 202–4    subject of 200–1 revision, total 23, 27, 32–4, 81, 136–7, 150 right to interrogation 64, 97–8, 105, 131 rule of law 35, 250 Salzburg 75, 170, 199–200 scrutiny 204, 224, 235, 237, 244 Second Republic 11, 13–18, 20, 29, 37, 115 self-administration 5, 128, 147, 171–3 self-governing bodies 8, 19, 58 separation 33, 175, 180    of jurisdiction and administration 178–88    of powers 5, 17, 33, 130, 178–9 sessions, parliamentary 69, 72 set phrases 222–4 shared areas 157–8 simplicity 23–4 small parties 47–8, 54, 64, 125 social conflicts 57–8, 209 Social Democrats 6–11, 44–8, 54–6, 63–4, 66–9, 115, 188–9   emergence 42–4 social partners 12, 39–40, 54–9, 68–9, 77–9, 249 social partnership 12, 39–40, 55–8, 59, 68–9, 78–9 social rights 9, 210, 215–17 social welfare state 10, 117, 215 social welfare system 140, 215–17, 232 sovereignty 8, 15, 140, 148–50, 166, 173 Soviets 13, 15, 43, 143 special allocation of powers 159–60 state actions 27, 213, 238 state administration 19, 88, 168, 172 state administrative courts 130, 153, 197, 205, 256–7 State Cabinets 19, 152, 170, 172, 199, 256–7 state constitutions 129, 147, 152–3, 165–7

State Council 6, 11 state courts 20, 153 state governments 73, 76, 125, 232, 256 State Governors 68, 76, 134, 165–6, 168–70, 256–7   role 169–70 state legislation 147, 150–1, 163, 164–8, 171, 199    co-operation in Federal State and participation in EU legislation 167–8    external powers 166    institutions and procedures 164–5 State Parliaments 19, 61–2, 74–6, 80, 93, 164–6 state powers 137, 149, 151–2, 155 states    federal 9, 147–52, 155, 157    participation in EU legislation 167–8 statutory provision 200–1 step pyramid 23–4, 30, 135, 177, 193, 208 Styria 75, 170, 212, 216 subject matter 26, 135–6 subject of review 200–1 subsidiarity 95, 157 substantial reservations of interference 231, 238, 241 substantive grounds 118–20, 122 ‘sufficiently clear and detailed’ 89, 156 Supreme Court 4, 20, 175–8, 188, 218, 245    powers pertaining to Constitution 190–2 taxes 139, 154, 159 television programmes 238–9 territorial corporate bodies 154, 157–9, 161, 164, 167, 197 territorial self-administration 171–2 third parties 96, 109, 188–9, 229 third party effect 191, 207, 217–18 total revision 23, 27, 32–4, 81, 136–7, 150 Trade Union Federation, Austrian 56, 79, 253, 258 trade unions 68–9, 145 translations, official 18–19, 171 treaties 18, 108, 134–6, 137, 166–7, 212–13 treatment    equal 227, 243–4    preferential 104, 228–30 tribunals 125, 128–30, 181–5, 254, 259    impartial 181, 205    independent 128, 153, 175, 181–2, 184    members of 130, 182 Tyrol 75, 101, 170

Union of Independents 15, 46, 256, 259 unitary state, decentralised 148, 151 Upper Austria 75, 168, 185 vacant positions 188–9 veto 83–4, 118 Vice Chancellor 78, 123–6 Vienna 3–4, 10, 12, 44, 148–9, 156 Vorarlberg 75, 101, 149, 170, 232

Index  269 voters 68, 71, 80 votes 43–4, 46–8, 65–8, 71, 100–1, 110    of no confidence 100, 112, 123, 131 voting 66, 71, 81–2, 165, 245 Waldheim, Kurt 115–16, 184 wars 3–4, 12, 15, 36, 44–6, 63 Westminster system 68–9 women 65, 141, 208, 244