Federalism in Austria

Presentation by Dr. Marcus Brand, UNDP

Overview of this presentationI. General information about AustriaII. Constitutional historyIII. The Political SystemIV. The Austrian legal systemV. Functioning of the federal statestructureVI. Lessons for Nepal?

I. General information about Austria Population: 8.3mArea: 83.000 km2Federal units: 9 (Länder)Capital: Vienna (1.5m)EU member: since 1995Geographic features:landlocked, West andCentre mountainous (2/3Alpine), flat lands in EastEconomy: 2/3 services, 1/3industry, less than 3%agricultureTax ratio: 42% of GDPLanguage: German

I. General information about Austria

II.Constitutional historyA little bit of history… 1918: Republic of Austria founded afterWorld War I by German-speaking provinces(Länder) of Austro-Hungarian Empire Seven Constituent Länder (now 9) 1920: Federal Constitution

II.Constitutional history 1920 Federal Constitutional Act forms themain body of Austrian federal constitutional law. 1933 and 1945: One party rule and lateroccupation by (Nazi-)Germany; World War II Constitutional Convention (2003-2005): onlyminor changes

II.Constitutional historyAustria-Hungary1918

II.Constitutional historyAustria-Hungary1918

II.Constitutional history

II.Constitutional historyHistorical context Weak “national identity” (buffer state) Linguistically homogenous; regional identities Two strongly opposed political „camps‟(Socialist Left – National/monarchist Right) Political violence Economic collapse1925: agreement on competences betweenfederation and Länder1929: strengthened role of federal president(direct election)1933: Coup d'état, authoritarian regime

III. The Political System: Federal unitsThe 9 Länder: Burgenland, Carinthia,Lower Austria, Salzburg, Styria, Tyrol,Upper Austria, Vienna, Vorarlberg

III. The Political SystemFederal ChancellorFederal MinistersFederal PresidentElectionDelegation, MembershipAppointment, AffirmationExecutive BranchLegislative BranchJudiciaryFederal AssemblyFederal CouncilNational CouncilConstitutionalCourtAdministrativeCourtJudiciaryLand GovernorLand CouncilorsLand DietLand level9xFederal levelAustrian electorate (from age 16)

III. The Political System: Federalism as one of the core constitutional principles Federalism is a basic constitutional principle. Federal Constitution provides a distribution ofpowers (competences) between the federation and thenine Länder. Länder enjoy some constitutional autonomy and arerepresented at the level of federal lawmaking (FederalCouncil – Second Chamber). Austria belongs to the most centralized federal statesworldwide. Länder are compensated by a strong system of cooperativefederalism and large executiveresponsibilities on behalf of the federation (indirectfederal administration).

III. The Political System: Constitutional division of powers (Art. 10) Länder hold a residuary competence (inpractice very few areas). Specific power-sharing regimes (Länder andmunicipalities take part in the politicalnegotiations).

III. The Political System: Federalism as one of the core constitutional principlesImportant principles to balance thefederal structure• One economic and customs area (Euro, EU)• Freedom of movement of people, goods,services• Individual rights protection (equality, rule oflaw, effective remedy)• Political culture of compromise and consensus(“social partnership”)

IV. The Austrian Legal system: hierarchy of normsThe hierarchy of normsBasic constitutional principles (total revision)Federal constitutional lawLand constitutional lawFederal lawsLand lawsOrdinancesAdministrative acts/decisionsEnforcement acts

IV. The Austrian Legal System: The Rule of Law “Principle of legality“: laws must have a clear andprecise meaning. All legal acts must be based on a law and the lawitself on the Constitution (hierarchical order) Legislative power being the "first among allpowers“. Administrative authorities (executive and judicialpowers) are strictly bound to observe the laws. Interpretation: Only the legislature can provide“authentic interpretation” and legal definitions. Executive and judicial authorities are bound bylimits of literal meaning of laws.

IV. The Austrian Legal System: The legality principle Administrative state institutions can issuegeneral ordinances (regulations) on the basis oflegislation within its sphere of competence Rule of law demands efficient and effectiveinstruments of legal protection.‣ Administrative and judicial appeals‣ An independent judiciary‣ Administrative Court‣ Constitutional Court‣ Constitutionally guaranteed proceduralrights.

IV. The Austrian Legal System: Special Courts of Public Law Constitutional Court and the AdministrativeCourt: courts with jurisdiction in the field ofpublic law‣ Administrative Court decides on complianceof administrative rulings with ordinary laws,and in case of delaying administrativeauthorities.‣ Constitutional Court has a broad number ofvery different powers (“Austrian model”).

IV. The Austrian Legal System: Special Courts of Public LawConstitutional Court special jurisdiction in the field ofunconstitutional administrative rulings which itcan repeal• if it violates a person in constitutionallyguaranteed fundamental rights• or because it is based on law that isunconstitutional. decides on the constitutionality of laws andthe legality of regulations (ordinances);competence disputes; accusations againstsupreme executive organs; and elections.

V. Functioning of the federal state structureThe 9 Länder: Burgenland, Carinthia,Lower Austria, Salzburg, Styria, Tyrol,Upper Austria, Vienna, Vorarlberg

V. Functioning of the federal state structure:Federal legislative procedureFederal legislative procedure Bill is passed in the National Council, goes to theFederal Council (some exceptions: federal budget) Federal Council has suspensive veto (8 weeks);may be overruled by a second decision taken by theNational Council Federal Council may exercise an absolute veto: if aconstitutional amendment bill would deprive theLänder of competences. Federal Council has never exercised an absoluteveto and rarely makes use of its suspensive veto.

V. Functioning of the federal state structure:Federal legislative procedure Only in a very limited number of cases, eachLand has to be directly asked to approve a bill(absolute veto). The Federal Council members mostly voteaccording to instructions of their respectivepolitical party rather than Länder interests (sameparliamentary parties),but: “free mandate”Leading political parties

V. Functioning of the federal state structure: Federal CouncilFederal Council (2 nd Chamber) Land diets elect (indirectelection), based on proportion Number of seats (3-12)based on census data (now 62) Composition changes aftereach Land election1112 11354 9 34

V. Functioning of the federal state structure:Constitutional autonomy of the LanderGeneral characteristics of federalism in Austria Austrian federalism can be described as cooperativeas well as symmetric No formal rule to give precedence to federallaws (disputes decided by Const. Court) Federal Constitution determines mostinstitutional aspects (such as the Land Diets(Parliaments), Land Governments and therelations between them). Each Land has its own „constitution‟.

V. Functioning of the federal state structure:Constitutional division of powers (Art. 10-15 of the Constitutional Law)Types of federal systemsSeparated System levels areclearly separated More transparencyand accountability Less need fordialogue, need forcooperation Area-basedcompetencesIntegrated System levels areinterdependent,entangled Less transparencyand accountability More dialogue,need for cooperation Functionalcompetences

V. Functioning of the federal state structure:Constitutional division of powers (Art. 10-15 of the Constitutional Law)Types of competences in Austria Subject areas where federation is responsiblefor the legislation and execution. Subject areas shared between the federation(as regards legislation) and the Länder (asregards execution). Subject areas where the federation isresponsible for framework legislation whilst theLänder are responsible for implementing theselaws (through their own legislation) andexecuting them. Concurrent legislative powers: not foreseen

V. Functioning of the federal state structure:Constitutional division of powersSpecial competence arrangements Public Finance Constitutional Finance Law: Federal legislature assignscompetences on taxation Fiscal Equalization Law: renewed periodically School system Public Procurement Public Service

V. Functioning of the federal state structure:Administrative division

V. Functioning of the federal state structure: Competences of the federationLegislation and execution – federal responsibility External affairs, civil and criminal law affairs,nearly all security issues, trade and industry,monetary and banking matters, railways,aviation, motor traffic, forestry, water rights,labour legislation, social security and publichealth matters, military affairs, etc. Only in exceptional cases are there federalauthorities at the decentralized level (policeagencies, internal revenue service).

V. Functioning of the federal state structure:Constitutional autonomy of the Lander Länder are responsible for the execution ofmany federal matters that, even though theyremain in the federal competence, are executedby the Land Governors (indirect federaladministration). The Länder can also conclude treaties witheach other and with the federation respectively. The Länder also co-operate informally throughConferences of Land Governors.

V. Functioning of the federal state structure: Public AdministrationStaff of administrative entities on different levels(not including independent agencies andenterprises)Federal level 132.731Land level 140.900Municipality/local level 73.400

V. Functioning of the federal state structure: How a “Land” works?Tirol

V. Functioning of the federal state structure: How a “Land” works?Land GovernorDeputy LandGovernors (2)Land Councilors(5)LandGovernmentLand Diet(36 Members)Office of the LandGovernment(Administration) Agriculture Labour Housing9 DistrictAdministrativeOffices99 9 9 9 9 9 9 DistrictsMayors ofCommunesand Towns99 9 9 9 9 9 9 DistrictsEducation Health CultureSecurity Sports EnvironmentDevelopment Transport Social Affairs