REFORMING AUSTRIA’S FEDERAL SYSTEM: AT THE HEART OF THE WORK OF THE GRAND COALITION?
After the elections to the National Council in October 2006, which almost resulted in a tie between the Social Democrats and the People’s Party, it took until January 2007 for the two parties to craft a co-operation agreement for the legislative period.
The new chancellor, Alfred Gusenbauer, declared that the reform of the federal state and of the administration was at “the heart” of the agreement and of the government’s work. But in fact, the chapter that deals with constitutional reform does not aim to create a new constitution (like the Austrian convention) but rather seeks (1) the establishment of administrative courts in the Länder, which would allow for Länder participation in courts, (2) the organization of a new system of administration in education that would allow the Länder to play a more important role in the Austrian educational system, (3) the enhancement of the constitutional autonomy of the Länder and the reduction of the supervisory powers of the federation, and (4) the creation of a new distribution of competencies by a so-called third pillar that would facilitate cooperative legislation between the federation and the Länder. The last reform is undoubtedly the most difficult, and many observers doubt whether a consensus can be reached on a distribution of competencies.An essential difference between the Austrian Convention and the new approach towards constitutional reform under Chancellor Gusenbauer was that the proposals for the reform projects were to be crafted by a small group of experts that included politicians as well as scholars. This approach had played an important role in debates on the reform of Austria’s federal system in the past. The agreement between Social Democrats and the People’s Party explicitly mentioned four experts. On the side of the SPO, Theo Ohlinger, professor of constitutional law at the University of Vienna, and Peter Kostelka, former speaker of the section of the SPO in the National Council and later ombudsman, were nominated to be on the expert commission.
On the side of the OVP, Andreas Khol, former president of the Austrian National Council, now retired but still one of the most prominent political experts in Austrian federalism, and Franz Fiedler, former president of the Austrian Court of Audit and President of the Austrian Convention were selected for the expert group. In addition, two experts had to be delegated from the conference of the governors. The first was Gabriele Burgstaller, governor of Salzburg and member of the SPO, and the second was Herbert Sausgruber, governor of Vorarlberg and member of the OVP. Both could be represented in part by other experts. Georg Lienbacher, the head of the Constitutional Service of the Federal Chancellory, served as general secretary of the group. The group of experts was supposed to have developed its proposals by the end of June 2007.In July 2007, the expert group presented a draft paper containing proposals for the introduction of administrative courts in the Länder, and in March 2008 it proposed a new division of competencies, a new role for the Federal Council, and a reorganization of the administration of elementary and secondary education. As a whole, these proposals would have strengthened “executive federalism” in Austria. But in the following months the coalition of the SPO and the OVP broke apart. As a result of the election held in the autumn of 2008 a new coalition of the SPO and the OVP under the leadership of federal chancellor Werner Faymann was formed, but the new government abandoned the project of a new division of competencies. So it is not surprising that as of late 2010, no bill had passed in parliament giving life to the proposals of the former expert group, although agreement may be possible on both the federal and Länder levels with regard to administrative courts and the administration of education. The opposition parties – the Greens, the Freedom Party, and the BZO – will undoubtedly object to proposals on these topics, but they will not be able to block them should the SPO and the OVP work out a compromise.
In addition to controlling the federal government, those parties govern in eight of the nine Länder, the exception being Carinthia, which is governed by the BZO.However, the prospects for a new distribution of legislative competencies remain poor. As formulated in the report of the Austrian Convention and in proposals of the federal government, there are huge differences between the positions of the Länder and the federal government. It is remarkable that the positions of the Länder towards the federal government have remained quite uniform, even though there have been differences over federalism and various economic positions between the Länder. It may be that the efforts to achieve legislative co-operation between the federation and the Länder in dealing with matters such as hospitals and certain components of youth and social welfare policy could serve as a model for expanding the sharing of competencies between federal and Länder authorities in other areas.