CONSTITUTIONAL AUTONOMY IN AUSTRIA
Relative Constitutional Autonomy
Articles 10–15 of the Federal Constitution regulate the separation of legislative and executive powers between the federation and the members.
Because federal and Länder statutes have the same rank, if one legislature enacts a statute that contradicts the constitutional distribution of powers, it remains valid until annulled by the Constitutional Court. In terms of the distribution of powers, four possibilities exist: (1) exclusive Bund (federal) legislation and execution, (2) Bund legislation and Länder execution, (3) fundamental legislation by the Bund, with enabling legislation and execution by the Länder, and (4) exclusive Länder legislation and execution. Although the Länder enjoy residual powers in areas not expressly assigned to the federation, the federation exercises the most important powers, as enumerated in Article 10 of the constitution.Because constitutional autonomy is one of the central elements of the federal principle, each of the nine Länder has its own constitution. Yet although the Länder have their own legal systems and enjoy relative constitutional autonomy, it is of course limited by the powers of the federal government. In addition, there is some pressure toward homogeneity among the Länder constitutions, because they are supposed to harmonize with the Federal Constitution and commonalities among the Länder constitutions facilitate such harmonization.
Since the early 1980s, after a long period of inactivity, various reforms of the Länder constitutions have been introduced. Reform efforts began with deep-reaching changes in the constitution of Vorarlberg in 1984 and with debates about constitutional reform in Styria at the same time. Other Länder, including Tyrol, Salzburg, and Upper Austria, followed within fifteen years with important modifications of their constitutions.
The constitutions of other Länder were also modernised in various ways. These amendments have included the establishment of more mechanisms for direct democracy, the introduction of goals for state activity, and an expansion of the range of instruments, such as public auditing, for supervision of the operation of government. Some observers have also noted a “wider self-consciousness” among the Länder in making use of the constitutional space available to them.2 Coinciding with these changes was a change in the common understanding of the role of Länder constitutions among legal scholars and practitioners. Länder constitutions were no longer seen as subservient to the Federal Constitution but were seen instead as the basic law within the various Länder. This changed understanding, however, raised a new question about the scope of constitutional autonomy for the Länder. According to Article 99, B-VG, the Länder constitutions may not “affect” the Federal Constitution. This provision safeguards the homogeneity of federal and Land constitutional law. In the past, there was extensive debate about the meaning of this provision. However, the Constitutional Court has clarified matters, ruling for many years that “affect” means that subnational constitutions may not contradict the Federal Constitution.3 This means that the constitutional autonomy of the Länder resulting from Article 15, paragraph 1, B-VG (in which all competencies in legislation or administration that are not explicitly transferred to the federation remain within the autonomous field of the Länder) has its limits in the fundamental principles of the Federal Constitution, on the one hand, and in explicit provisions of the Federal Constitution, on the other. This implies that constitutions of the Länder may codify anything insofar as they do not contradict federal constitutional law.The Federal Constitution provides a general framework that applies to both the federation and the nine Länder.
This framework is based not only on fundamental constitutional principles such as democracy, republicanism, the rule of law, and human rights but also on certain more general constitutional provisions, such as the duties of administrative bodies or the structure of state organization.4 Scholars have therefore characterized the constitutional autonomy of the Austrian Länder as a “relative constitutional autonomy.”5 Consequently, Article 99 B-VG serves as a specific rule for the homogeneous relationship between federal and Länder constitutional law.6 It guarantees a certain standard of fundamental rights or democratic instruments.Basic Principles of the Federal Constitution and Their Impact on Länder Constitutions
Based on Article 99, B-VG, discussed in the previous section, the Constitutional Court has ruled, as we saw, that the basic principles of the Austrian Federal Constitution may not be contradicted by the Länder constitutions.7 This requirement of homogeneity raises difficulties, however, in that the content of the basic principles is shaped less by express provisions of the constitution than it is by the case law of the Constitutional Court. This can be seen in the Court’s ruling in 2001 dealing with Article 33, paragraph 6, in the constitution of Vorarlberg that allowed the people of Vorarlberg to demand the enactment, amendment, or abolition of state laws (including state constitutional laws) by way of citizen petitions. Under this provision, if a petition relating to Land legislation is supported by a certain number of voters or at least ten municipalities, the Land parliament must decide if the petition is to be considered or not. If the Land parliament refuses to consider a petition that is supported by at least 20 percent of the voters, a referendum must be held on the same question, and if it turns out to be successful, the Land parliament is obliged to pass a bill in accordance with the demands formulated in the petition.
The provision thus compels the Land parliament to enact legislation even if its members do not wish to do so. The crucial question for the Court was whether the mere possibility of forcing the Land parliament to enact a certain piece of legislation represented a level of direct democracy that was incompatible with the democratic principle codified in the Federal Constitution. The fact that Article 33, paragraph 6, of the Vorarlberg Constitution had never been of practical significance in the past played no role in the Court’s decision making.In earlier rulings, the Constitutional Court had already emphasized that the democratic principle stands mainly for representative democracy.8 Elements of direct democracy, insofar as they are explicitly provided for by federal constitutional law, were regarded as exceptions to this basic principle. In its judgment in the Vorarlberg case, the Court held that the fact that the (historical!) federal constitutional lawmakers wanted to provide for a referendum only to a limited extent (in the year 1920!) formed not only a federal constitutional standard that bound the federation, but also an essential element of the basic constitutional principle of representative democracy (parliamentarism) that bound the Länder constitutions as well.
Express Restrictions on the Constitutional Autonomy of the Länder
The Austrian Federal Constitution – unlike those in Germany, Switzerland, and the United States, for example -- regulates in detail the structure and operation of subnational governments. Article 95, B-VG, mandates the same principles for state parliamentary elections as for elections at the federal level (principles of common, equal, secret, and direct elections). Article 96, B-VG, states that the status of the deputies of the Landtage may not deviate from the status of the deputies to the National Council. Other provisions prescribe legislative procedure in the Länder (e.g., Article 98, B-VG).
Article 101, B-VG, requires that the Land government be elected by the Land parliament and consist of a governor, his representatives, and other members.
The Federal Constitution also contains special regulations for the capital, Vienna, because of its dual status as a state and a municipality, as well as detailed regulations for the institutional structure and operation of municipalities. According to Article 117, B-VG, there must be a municipal council that is elected on the basis of proportional representation, a mayor who may – depending on the respective Land constitution – be elected directly by the people, and an executive body, the Gemeindevorstand. The Federal Constitution authorizes the Länder to allow municipalities to make use of direct democracy, such as initiatives and referenda, at the municipal level. Article 118, paragraph 2, B-VG includes a definition of local self-government along the lines of the subsidiarity principle. Paragraph 3 enumerates those matters for which local self-government is guaranteed.