CHANGE AND DEVELOPMENT IN AUSTRIAN STATE CONSTITUTIONS

The Structure and Content of Länder Constitutions

Austria’s subnational constitutions are quite uniform in their regulation of the structure of Land governments and the procedures by which they operate.

Constitutional Reform Initiatives in the Länder

Recent constitutional reform initiatives in the Länder have addressed “state goals,” fundamental rights, direct democracy, instruments of parliamentary control, and government systems in the Länder. Let us survey each in turn.

STATE GOALS. The constitutions of the Austrian Länder characteristically include as a sort of preamble provisions of a general kind dealing with the Land’s legal status, the basic values underlying its constitution and politics, the fundamental rights it recognizes, and the aims it seeks to pursue. With the exception of Vienna’s, each Land constitution emphasizes the autonomy of the Land within the Federal State. While the term “State of the Federal Republic” is usually used, the Vorarlberg Constitution calls the State of the Federal Republic an “independent State.” Among the states of the Federal Republic, Tyrol stands out in particular with its proclamation of fidelity to God, making it the only member of the Federal Republic to include a religious confession in its preamble.

In the late 1970s and the early 1980s, the Austrian Länder began to introduce so-called state goals into their constitutions. Lower Austria and Burgenland pioneered these efforts with the latter, for example, declaring itself a democratic welfare state based on the rule of law. However, these were only the first small steps. The first wide-ranging modification of a Land constitution took place in Vorarlberg 1984. Lower Austria, Upper Austria, Tyrol, Salzburg, and Carynthia have all followed the lead of these Länder, constitutionalizing a large number of political, economic, and social principles that guide governmental action within their borders. Through these state goals, the Länder have committed themselves to basic values such as democracy, justice, the rule of law, social justice, the welfare state, economic well-being, tolerance, and the support of disadvantaged people within society.

One common state goal is the liberal principle of the free development of each person. This is understood to require state attention to (1) appropriate living conditions throughout the Land, (2) safeguards for human dignity and the free development of personality, (3) the creation of sufficient living possibilities, (4) the creation of sufficient jobs, (5) support for the interests of the elderly, (6) social welfare assistance, and so on. The constitutions of Tyrol and Vorarlberg expressly provide that any Land action must respect human dignity, equal protection before the law, and proportionality of the means applied. They also contain provisions requiring the state to protect and foster marriage and the family.

The constitutions of Salzburg, Carinthia, and Upper Austria elaborate in considerable detail state goals for the protection of the environment, and Salzburg emphasizes as well as one of its state goals the protection of animals. In 2006 Salzburg also declared the protection and preservation of water resources as a new state goal, in order to be able to ensure a supply for future generations. Thus Salzburg has added to its extensive environmental goals a commitment to sustainability.¹⁰

To be clear, these state goals provisions do not grant fundamental rights to the citizens. There is considerable dispute as to the appropriateness of including state goals in Länder constitutions. Some commentators have insisted that because these declarations lack binding legal effect, they are unenforceable. Others maintain that they serve as action directives to the legislature and thus do have normative effect. In Das Verfassungsrecht der osterreichischen Bundesländer, Friedrich Koja examined this question closely, concluding that state goals are designed to be legally binding on legislators.¹¹ However, this does not mean that a court can issue a direct order for legislation (Gesetzgebungsauftrag) or require individual legislators to take action.

FUNDAMENTAL RIGHTS. The Austrian Federal Constitution contains an extensive listing of fundamental rights dating back to the Basic Law of 1867, and it also includes the European Convention on Human Rights, which, even though it is a multilateral concordat, has the status of federal constitutional law. Nevertheless, the Federal Constitution does leave room for the recognition of additional individual rights in Länder constitutions, as long as these protections do not contradict the Federal Constitution. This concern about contradiction likely means that the Länder should not include in their constitutions “classic” fundamental rights that have already been enshrined in the Federal Constitution, because – under Article 99, B-VG – provisions dealing with fundamental rights in Länder constitutions may not affect or limit the fundamental rights guarantees of the Federal Constitution.¹² However, the formulation and adoption of new social and cultural requirements as fundamental rights does not threaten the requirement of conformity with the Federal Constitution, because the Federal Constitution has not codified such rights, and so the Federal Constitution’s legal limit, Article 99, B-VG, does not apply. However questions of legal authority remain.

Debate has focused on whether the Federal Constitution reserves the right to adopt fundamental rights exclusively for the federal level on ground of the provision of Article 10, pararagraph 1, point 1, B-VG.

Some examples may illustrate how the Länder have made use of this constitutional space, that is, of their authority to extend rights beyond those recognized at the federal level.

Three Länder – Salzburg, Tyrol, and Vorarlberg – have expressly constitutionalized the right to property. The constitutions of Tyrol (Article 11, paragraph 2), Vorarlberg (Article 11, paragraph 2) and Salzburg (Article 10, paragraph 3) require that when confiscation of property occurs as a result of state law, adequate compensation must be provided. A provision of the Tyrolean Constitution further guarantees individuals the right to obtain social aid, the only constitutional provision in Austria that recognizes a fundamental social right. There are not only fundamental rights in Land constitution but also fundamental obligations of the citizens: the constitutions of Tyrol (Article 14) and Vorarlberg (Article 12) oblige persons who are residing on Land territory to provide assistance in case of emergencies and disasters “in accordance with condition of the laws.”

DIRECT DEMOCRACY. The Federal Constitution does not expressly regulate direct democracy in the Länder. The provisions in the Länder constitutions dealing with direct democracy result primarily from constitutional reforms that began in 1983 in Vorarlberg and continued over the next two decades in the other Länder. During this period, political debate revealed widespread popular concern about how well legislators represented the interests of the public, and strengthening the instruments of direct democracy seemed to be an answer to this concern. The constitutional changes commenced in Vorarlberg and later on spread to Tyrol, Styria, Salzburg, Upper Austria, and Lower Austria.

Although all Länder constitutions authorize some use of direct democracy, they differ in the forms that they authorize. All constitutions contain the popular initiative, so that the Land parliament has to deliberate. Some Länder permit a Land parliament to conduct an optional referendum concerning any statute that has been adopted but not yet promulgated. Some Länder constitutions also provide for referenda to be held on the municipal level. Such plebiscites have become increasingly popular and have been used in dealing with a broad range of issues, in particular seeking popular support for building permits for large housing projects or other construction projects. The constitutions also provide for a referendum if the Land parliament decides to authorize one. In addition, Burgenland, Lower Austria, Upper Austria, Styria, Tyrol, and Vorarlberg also provide for referenda on bills adopted by the Land parliament if this is requested by a sufficient number of voters. It is unclear whether this “veto-referendum,” as it is called, contradicts the democratic principle of the Federal Constitution, which, as mentioned previously, emphasizes representative rather than direct democracy.¹⁶

Salzburg more or less follows the model of the Federal Constitution, with the initiative and both forms of referenda obligatory. Furthermore, in the case of a partial revision of the constitution, one-third of the representatives of the Land parliament have to decide if a referendum is necessary. In the case of an optional referendum the Land parliament may decide if a referendum shall take place. Upper Austria and Vorarlberg have established a combination of the initiative and the referendum under which an initiative becomes law if a majority votes for it in a referendum. However, the Constitutional Court has declared this provision of the constitution of Vorarlberg unconstitutional.¹⁷ Upper Austria has also introduced a variant of this: if an initiative is ratified by a majority of voters, the Landtag can, by a two-thirds majority, prevent the result of the referendum from becoming law. Finally, all Länder constitutions provide for the consultative referendum with regard to legislative and executive matters, upon the request of the Land parliament or of the Land government or of a certain number of voters.

Instruments of Parliamentary Control

The Länder constitutions have established various instruments of parliamentary control over the Land government, the validity of which are addressed in Article 127c, B-VG, as amended in 1999. Among these instruments are the right of legislators to question members of the Land government and the right of the Landtage as a whole to pass a no-confidence resolution, leading to the resignation of a specified member of the government or of the government as a whole. Another instrument of parliamentary control is the right to establish investigative committees. Interestingly, in some parliaments, such as those in Salzburg and Tyrol, the right to establish investigative committees belongs to the parliamentary minority.

Each Land parliament regularly uses the right of interpellation in the form of a question period at the beginning of a state parliament session. This so-called Aktuelle Stunde (the English translation could be “topical hour”) is meanwhile also a popular instrument of parliamentary control in the Land parliaments.

Land Audit Offices

Among the most important instruments of parliamentary control are independent Land audit offices (Landesrechnungshofe), now established in the Länder, which have the right to examine the financial management of state administrations. (The terminology is slightly different in Vienna, where the office is designated as the Kontrollamt because it is the mechanism of control not only in the Länder but also in the municipality of Vienna. It is in fact an office of the municipal council (Gemeinderat), which is organizationally assigned to the municipal board (Magistrat)).

Initially there was some dispute about the constitutionality of Land audit offices. Some scholars argued that establishing them in the various Länder would contradict the Federal Constitution by interfering with the work of the federal audit office and promoting inadmissible competition with audit offices at the federal level. However, other scholars accepted the (relative) constitutional autonomy of the Länder, which the mechanism of a federal audit office would permit. Ultimately, the adoption of a federal constitutional amendment (Article 127c, B-VG) in 1999 confirmed the validity of creating audit offices in the various Länder. This amendment expressly authorizes them to create their own audit offices as similar types of institutions to the federal audit office, and they are allowed to establish regulations regarding their organization and as functions. They create audit offices as an auxiliary authority of Land parliaments, which means that they are an office of control paralleling the federal audit office, especially in its organizational structure. The control of public accounts and the administration of public funds in the sphere of the Länder is therefore exercised both by the federal audit office and by the Land audit offices.

Even if the offices in the Länder do not interfere with the work of the federal audit office, their creation raises other legal questions. For example, which governmental authorities are under the supervision of the audit office and responsible to it? Obviously, as an auxiliary organ of the Land parliament, it may examine the financial management of the Land. With regard to municipalities, however, the legal situation is more complicated. Article 119a, paragraph 2, B-VG, indicates that the Land has the right to examine the financial management of the municipalities within its borders with regard to economy, efficiency, and appropriateness. Since the control of financial management is control in the sense of the supervision of municipalities, the authorities of the Länder and the federal government are entitled to undertake it. Thus the executive and not the legislature has the competence.

In the past there were lengthy debates about whether the Land constitution could allow audit offices to examine the financial management of the municipalities. The prevailing opinion was that they were not allowed to exercise control because control by an auxiliary body of a parliament would contradict Article 119a, B-VG. But now a recent modification of the Austrian Federal Constitution has clarified certain points.¹⁸ Although the federal audit office may examine the financial management only of municipalities that have more than ten thousand inhabitants, nevertheless, if they are called on by the Land government to supervise a municipality, the federal and the Land administration may audit financial management in their responsibility as supervisors. Moreover, the Land constitutions are now explicitly entitled to allow Land audit offices to examine the financial management of municipalities that have less than ten thousand inhabitants. In this change the Federal Constitution follows the arguments of Norbert Wimmer, according to which there could be only one solution to the problem: codifying a “competence clause” (Kompetenztatbestand) through federal constitutional regulations.¹⁹ Obviously the argument that the constitutional autonomy of the Länder allows them to entrust their audit offices with the control of financial management of municipalities was neglected.

As of December 2010 the Länder had not modified their constitutions in respect of this new situation. Nevertheless, it can be expected that the audit offices in more or less all the Länder will be allowed to audit the municipalities. Presently, in some cases their constitutions do entitle them to entrust their offices with the control of the financial management of municipalities. In this function the audit office is then acting as an auxiliary body of the government. But in the literature this construction was not approved. Therefore a different construction was considered, namely, that the audit office acts as an expert on behalf of the government (compare the Landesrechnungshofgesetz Oberosterreich: the Upper Austrian Law on the Land Audit Office).²⁰ On a vote by, or rather by a request of a Länder institution like the government, parliament, or a certain number of deputies, the audit offices carry out special investigations. The requirements for investigation are different in the respective Länder.

Requests may be authorized by the following:

· The Land parliament – in Styria, Salzburg, Burgenland, Tyrol, Carinthia, Lower Austria, and Vorarlberg.

· The Land government – in Burgenland, Salzburg, Carinthia, and Vorarlberg.

· The control commission – in Salzburg, Burgenland, Tyrol, Carinthia, Lower Austria, and Vorarlberg.

· A member of the Land government in the context of concerns of the member’s department – in Styria, Burgenland, and Carinthia.

· Individual members of the control commission – in Burgenland and Carinthia.

· A party that fails to have a quarter of the members of the state parliament – in Salzburg.

· A third/a quarter of the delegates of the Land parliament – in Burgenland, Tyrol, Lower Austria, Styria, Salzburg, and Vorarlberg.

· A “Landtagsclub” that does not have a third of the members of the Land parliament – in Burgenland.

· A quarter of the delegates if they belong to a group of voters that is not represented in the Land government – in Tyrol.

· The Land government, if it requires an examination, and the control commission – in Styria and Tyrol.

· The governor – in Salzburg.

· A popular initiative – in Vorarlberg and Styria.

Only Styria and Vorarlberg permit a popular initiative on the request for an investigation by the the Land audit offices. In these Länder public control is also an aspect of direct democracy.

Finally, it should be stressed that so far no major problems have resulted from possible duplication of work by federal and Land audit offices. In addition, the Länder offices sometimes serve a supplementary function, because some special areas of financial management control can be undertaken only by the member state offices – for instance, for enterprises where state involvement is less than 50 percent.²¹

OMBUDSMAN. An amendment to the Federal Constitution in 1977 (Article 148a, B-VG) established the office of Federal ombudsman (Volksanwalt), which was modelled after the ombudsman office in Sweden. The ombudsman represents an auxiliary body of the parliament for controlling the administration. Under the Federal Constitution, each Land has the option of authorizing the federal ombudsman to oversee the administration of the state. Most Länder have availed themselves of this possibility. However, Vorarlberg and Tyrol have made use of the constitutional space extended by the Federal Constitution to create their own ombudsman offices.

The Vorarlberg ombudsman resembles its federal counterpart in terms of internal organization and the scope of its authority. In contrast, Tyrol created a somewhat different institution. For one thing, the ombudsman of Tyrol is under the authority of the Land parliament and cannot otherwise be removed before the expiration of its term of office, and the ombudsman of Tyrol differs from the federal ombudsman in the scope of its activities. For example, the ombudsman can be “called” even if other legal remedies remain available, and the ombudsman can examine “indirect federal administration.” From the perspective of the Federal Constitution, the authority of the ombudsman of Tyrol to control the indirect federal administration may be problematic, because Article 148a, B-VG, appears to allow the federal ombudsman or the Land ombudsman to examine only the execution of laws enacted by their level of government.²²

Government Systems in the Austrian Länder

The most important differences in governmental structures are concerned with the rules about the composition of the executive body, the state government. After 1945, seven of the nine Länder constitutions – all but those of Vorarlberg and Vienna – have provided for proportional representation. These constitutions are based on a power-sharing model under which the political parties – in particular the conservative People’s Party, the Social Democratic Party, the national-liberal Freedom Party, and the Greens – can appoint members of the government based on their share of the popular vote. Moreover, in Burgenland, Carinthia, Lower Austria, Upper Austria, and Styria, only the candidates nominated by the political parties can be elected, since the only valid votes are those cast for their nominees (the so-called Fraktionswahl). This mechanism, which in practice has transformed the election into an appointment process for the various parties, has nonetheless been accepted by the Constitutional Court.²³ An important element of competition does remain in the election of the governor, which is, under all Länder constitutions, based on a majority vote.

Like Vienna in 1921 and Vorarlberg in 1923, Salzburg and Tyrol modified their constitutions at the end of the 1990s in order to accommodate the election of their state governments by a majority rather than a proportional voting system. Thus, since 1998 there have been four Länder with majoritarian governments: Vorarlberg (since 1923), Vienna (since 1921), Salzburg, and Tyrol. These reforms were meant to spur political competition, but it is debatable whether this goal has actually been achieved. This might be why other Länder have so far retained their systems of proportional representation.