INTRODUCTION: THE AUSTRIAN FEDERATION AND ITS AUTONOMOUS LÄNDER
The Austrian Federation was created in 1920 as a compromise between the Social Democrats and the Christian-Social-Party. While the former wanted to establish a strong unitary state, the latter supported the formation of a federation similar to Switzerland’s.
These entirely different attitudes towards federalism resulted in the Austrian Federation, which was conceptualized primarily by the famous legal scholar Hans Kelsen. Article 2 of the Federal Constitution (Bundes-Verfassungsgesetz, or B-VG) stipulates that Austria is a federal state consisting of nine autonomous member-states (Länder): Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria, Tyrol, Vorarlberg, and Vienna. But this federal state retains strong unitary features. The division of competencies provides relatively few opportunities for the Länder to enact legislation, and the constitution creates a weak federal council, the Bundesrat, that has no veto power against ordinary federal legislation.Constitutional changes since the formation of the federation have further accentuated this unitary emphasis, as most amendments to the constitution since 1920 have modified the division of competencies by transferring additional powers to the federal level. In the main legislative realms, as well as in the administration of laws, the federal level plays a pivotal role. For example, the courts are regulated by federal law, and judges and other employees are civil servants of the federation. Matters of internal security are likewise addressed by federal legislation and administered by federal officials.
Although the constitutional powers of the Länder are circumscribed, their constitutional position is guaranteed. The Austrian Constitution enshrines several principles, usually referred to as the structural principles of the federal constitution, and federalism is among those principles.
The Federal Constitutional Court has defined the federal principle as incorporating three substantive elements: (a) the distribution of legislative and administrative competencies; (b) the participation of the Länder in federal legislation and administration (so-called indirect federal administration, mainly executed by the governors of the Länder); and (c) the constitutional autonomy of the Länder. Both legal theory and judicial rulings confirm that a substantial alteration of any of these principles would be considered a “total revision” of the constitution, and under Article 44, paragraph 3, of the Federal Constitution, such a total revision of the constitution requires approval by popular referendum. Thus, abolishing the federal principle would require the consent of the people in a referendum, in addition to a two-thirds majority in both chambers of parliament.1 Moreover, besides the National Council, the Federal Council, the second chamber of parliament (the Federal Council represents the Länder parliaments), has to assent if the competence of the Länder concerning legislative or executive powers is to be restricted. Passing such regulations also requires the presence at least of half the deputies and a two-thirds majority.Two other aspects of Austrian constitutionalism also bear mention at the outset. First, Austrian constitutional law embodies a long tradition of legal positivism, which has played an important role in the interpretation and execution of Austrian laws. This tradition has encouraged an understanding of the constitution that is focused on the wording of provisions more than on the spirit of the document. As a result, Austrian constitutional law tends to be very casuistic and detailed. Second, the political role of the Länder is much stronger than their limited constitutional powers might suggest. In particular, the Landeshauptleute (governors of the Länder) are powerful veto players in the Austrian political system, because they have strong political positions in the Länder. Owing to the centralized structure of the party system, they also play an important role at the federal level.