Federal Constitution (Austria)
The Federal Constitution of the Republic of Austria is understood to mean the entirety of all constitutional laws and provisions of federal law. The central provisions of federal constitutional law are contained in the Federal Constitutional Law (B-VG), which is generally meant when the constitution is mentioned. In addition to it, there are also numerous other laws ( federal constitutional laws ) or individual legal provisions (referred to as constitutional provisions in the respective law ) as well as individual international treaties with constitutional status. This fragmentation of Austrian federal constitutional law leads to great confusion.
Founding of the state
- Resolution of October 30, 1918 on the basic institutions of state power.
- On the same day it was decided to abolish (war) censorship.
- Law of November 12, 1918 on the state and form of government of German Austria (Art. 1: German Austria is a democratic republic. All public powers are exercised by the people. Art. 2: German Austria is part of the German Republic. Art. 9: Right to vote without Difference of sex )
Of the three principles of these resolutions (separate state, republic, affiliation) only one, the republic, could be fully enforced. With regard to the assumed national territory (all districts of Cisleithania with a majority of German-speaking population ), German-Austria had to make major cuts within a few weeks (German- Bohemia , German- Moravia , Austrian Silesia and South Tyrol remained outside the new state). The Anschluss was prevented by the victorious powers of the First World War .
The Constituent National Assembly elected on February 16, 1919 , which met for the first time on March 4, 1919, made further fundamental decisions:
- Habsburg law of April 3, 1919 (see there; in constitutional status, however the expulsion of the Habsburgs from the country as stated in Art. 2 by the Council of Ministers 1996 as a dead right)
- Nobility Repeal Act of April 3, 1919 (see there; in constitutional status)
- State Treaty of Saint-Germain-en-Laye of September 10, 1919 with the victorious powers of the First World War, ratified by the National Assembly on October 25, 1919 (since that day no longer the State of German Austria , but, as in the treaty, the Republic of Austria ) and on Came into force on July 16, 1920. Art. 27 defines Austria's borders, subject to those in Art. 49 et seq. regulated Carinthian referendum . Articles 62–69 ( protection of minorities ) have constitutional status. Art. 88 ( independence of Austria ) prevents the connection to Germany without mentioning this country.
Federal Constitutional Law 1920
The Federal Constitutional Law (B-VG) was passed on October 1, 1920 by the Constituent National Assembly elected on February 16, 1919 and first convened on March 4, 1919 , which emerged from the first democratic elections in Austria and, as its name suggests , was intended to be the constituent parliament from the start. It should be noted that the federal state of Burgenland did not exist at that time and that its area still belonged to Hungary , so Burgenland deputies were not involved.
The drafts for the B-VG were drawn up by the legal philosopher and constitutional lawyer Hans Kelsen and the two leading members of the government, Karl Renner ( Social Democratic Party ) and Michael Mayr ( Christian Social Party ), who took turns in the office of State Chancellor on July 7, 1920. The full name of the law was: Law of October 1, 1920, which establishes the Republic of Austria as a federal state (Federal Constitutional Law) .
The B-VG was announced on October 5, 1920 in the State Law Gazette under No. 450. The announcement was repeated on November 10, 1920, the day on which essential parts of this constitution came into force, in the Federal Law Gazette (BGBl.) , Which replaced the State Law Gazette , under No. 1. The Austrian B-VG is thus one of the oldest constitutions in Europe that is still in force today .
Recourse to the Basic Law on the General Rights of Citizens of 1867
However, the B-VG was incomplete from the start because the parties of the young republic were unable to reach an agreement on a number of important points. This particularly concerned the area of fundamental rights as well as the distribution of competences between the federal government and the states in some particularly sensitive matters. In order not to endanger the constitution, basic laws from Imperial Austria were adopted, in particular from the so-called December Constitution the Basic State Law on the general rights of citizens for the kingdoms and countries represented in the Imperial Council of December 21, 1867, which (with the exception of the citizenship rules in Art 1 and 4, the reference to a law that is no longer applicable in Art. 8 and the possibility of temporarily suspending fundamental rights in Art. 20) are still part of the Federal Constitution today.
Burgenland laws 1921, 1922
A few weeks after the constitution came into force, the national territory was expanded to the current state. The state treaties of the victors of the First World War - 1919 in St. Germain with Austria, 1920 in Trianon with Hungary - had stipulated that the German-populated western Hungarian regions were to be attached to Austria. The National Council therefore passed the Federal Constitutional Act of 25 January 1921 on the position of Burgenland as an independent and equal state in the Federation and on its provisional establishment.
The actual handover of the country to Austria did not take place until November and December 1921. In the constitutionally determined state capital Ödenburg , a referendum took place from 14 to 16 December 1921 , which resulted in the city remaining with Hungary. In 1922, some border municipalities changed national territory.
On April 7, 1922, the National Council passed the 2nd Federal Constitutional Law on Burgenland , which changed the first Burgenland law and made provisions for the transition from the federal state administration to the state administration set up by the state of Burgenland. The law contained a provisional state order and a provisional state election order .
Federal Constitutional Amendment 1925
Two major amendments to the B-VG were made in the First Republic. The Federal Constitutional Amendment 1925 (so its short title) of July 30, 1925 was part of a comprehensive constitutional and administrative reform that had become necessary due to the obligations from the Geneva Protocols of 1922. In particular, the definitive distribution of competencies between the federal and state governments was established. The amendment came into force on October 1, 1925. In order to offer a uniform text, the Federal Chancellor brought about the so-called republication of the Federal Constitutional Law by ordinance of September 26, 1925.
Second federal constitutional amendment 1929
This amendment was preceded by disputes about the future exercise of political power in Austria. After ten years of parliamentary democracy, the Christian Socials had in mind a form of government that would be more dominated by a leader. The Social Democrats, without whom a legal constitutional amendment could not come about, put up hesitant resistance. Back then, the “zeitgeist” was not exclusively dominated by democracy: three of Austria's seven neighboring states (Hungary with an authoritarian government, Yugoslavia with a royal dictatorship, Italy as the leader state) offered object lessons for opponents of democracy.
The Second Federal Constitutional Amendment (so the short title) passed on December 7, 1929, which, according to the harmless-sounding long title, contained "some amendments" to the constitution, meant a power shift from parliament to the Federal President : he now appointed the government (which had previously been elected by parliament was) and the officials, he was Commander-in-Chief of the Federal Army , he was able to dissolve Parliament. He has now been directly elected by the people for six years. Outside the session of Parliament, the President had a limited right to issue an emergency. One leaned on the model of the emergency article 48 of the Weimar Imperial Constitution. However, the Social Democrats ensured that most of the Federal President's legal acts are tied to proposals by the federal government responsible for Parliament .
As in 1925, the B-VG was re-announced by the Federal Chancellor, this time by ordinance of January 1, 1930. The constitution now bore the title Federal Constitutional Law in the 1929 version until 1994 .
Corporate State: Constitution 1934
Chancellor Dollfuss used loopholes in the National Council's rules of procedure (there was no provision for the case that all three National Council presidents resign) to rule without a parliament from March 5, 1933. Federal President Miklas , who was called to intervene as the guardian of the constitution and petitioned to act by more than a million people , neither made use of his right to issue emergency ordinances to temporarily repair the National Council's rules of procedure, nor did he demand a proposal from the Federal Government to dissolve the National Council and thus to new elections. The constitutional court was paralyzed by the resignation of pro-government judges.
The brief civil war began on February 12, 1934 , followed by the ban on the Social Democratic Party, the dismissal of Vienna's mayor, Seitz, and the establishment of detention camps for political opponents.
In order to preserve the parliamentary appearance during the introduction of the corporate state (which was also known as Austrofascism ), the federal government passed an ordinance on April 24, 1934 that closed the loophole in the National Council's rules of procedure. On the same day, also by government decree, the constitution of the federal state of Austria ( May constitution ) was announced, which begins with the following preamble:
- In the name of God Almighty
- from which all right proceeds
- the Austrian people
- for his Christian, German federal state
- on a class basis
- this constitution.
On April 30, 1934, the National Council met for the last time as a rump parliament (without the excluded Social Democrats and without most of the Greater German MPs who stayed away in protest) and "passed" the Federal Constitutional Act on extraordinary measures in the area of the constitution , which marked the transition to the (already enacted) The corporate state constitution should be legalized. The law also included the transfer of all previous rights of the National Council to the federal government. This now set May 1st to commemorate the proclamation of the constitution, which formally came into force on July 1st, 1934.
Habsburg Law 1935
On July 13, 1935, the dictatorial federal government passed the federal law on the repeal of the expulsion and the return of the property of the House of Habsburg-Lothringen . This measure was reversed by the Nazi state in 1939.
time of the nationalsocialism
During the time of National Socialism , the constitution of the German Empire was in effect . The Weimar Constitution was not formally repealed by the National Socialists , but due to the Enabling Act it had already been materially overridden in essential points in the course of 1933. In place of a constitution based on the rule of law, a totalitarian leader state that defied any normative limitation had emerged.
Declaration of Independence 1945
During the collapse of the Greater German Reich in 1945 at the end of World War II , representatives of the former Christian Socialists , now the Austrian People's Party , the Social Democrats and the Communist Party of Austria met in Vienna, came to an agreement on April 23 and proclaimed on April 27, 1945 in the spirit of the Muscovites Declaration of the Allies of 1943 independence from Germany and the re-establishment of the Republic of Austria . On the same day, with the knowledge of the Soviet occupying power (the cabinet introduced itself to Marshal Tolbuchin ), the Provisional State Government under Karl Renner was constituted , which claimed to act for all of Austria.
For the time being, both steps were only effective in Vienna and its surroundings, as the other parts of the country had not yet been liberated from Nazi rule or were occupied by other allies and there were initially no contacts between the zones of occupation. The Allied Council did not recognize the Renner government until October 20, 1945.
According to the Declaration of Independence, the republic was to be restored in the spirit of the 1920 constitution - a formulation by Renner that left all the details open. There were different opinions about the future constitutional structure. Renner wanted to create a centralized structure. ÖVP and SPÖ wanted to revisit the Federal Constitutional Law of the First Republic, the communists had other plans. KPÖ representative Ernst Fischer called for a provisional national assembly (as it had existed in 1918/1919), which should be elected “in various appropriate forms”. This would have sparked constitutional discussions for years. (On May 13, 1945, Ernst Fischer spoke at a KPÖ conference of the goal of a “true people 's democracy ”.) The Social Democrat Adolf Schärf succeeded in persuading Renner to quickly establish constitutional security: to return to the Federal Constitution as soon as possible, as it was on May 5. March 1933 (the day after the last session of the National Council before the dictatorship years).
Constitutional and legal transition laws 1945
The legal scientist Ludwig Adamovich sr. leading involved.
- Constitutional transition law
On May 13, 1945, the Provisional State Government passed the Constitutional Transition Act (V-ÜG, long title: Constitutional Act on the renewed entry into force of the Federal Constitutional Act in the version of 1929 ), which included the B-VG and other laws in the version as it existed before the corporate state , put it back into force and repealed all constitutional rules of the corporate state and the German Reich. (The most important repealed laws are explicitly listed in the V-ÜG.) The law was backdated to May 1, 1945.
As of December 31, 2007, the law was determined to no longer apply.
- Provisional constitution
Since de facto not all provisions of the B-VG were immediately applicable again, a provisional constitution (long title: Constitutional law on the provisional establishment of the Republic of Austria ) was put into effect on May 13, 1945 ; also backdated to May 1st. It stipulated that the state would temporarily be headed uniformly from Vienna and that the provincial governors and the mayor of Vienna would therefore be appointed by the provisional state government.
It laid down the functioning of the government (also in the legislative process), re-established the Supreme Court , the Administrative Court and the Court of Auditors , and determined that the Federal President's agendas should be taken care of by the Political Cabinet Council. (These were the state chancellor and a political state secretary [= minister] of each of the three parties.) The historic federal states were restored, but for the time being Burgenland was to be divided and the Nazi border between Vienna and Lower Austria remained unchanged.
On October 12, 1945, the provisional constitution was adopted after the so-called country conferences, 24. – 26. September and 9-11. October, changed with the representatives of the federal states in order to involve them more closely. At the third country conference on October 25, 1945, the country representatives expressed their satisfaction with this.
In Art. 4 of the Constitutional Transition Act it was determined that the Federal Constitutional Act will become fully effective again six months after the first National Council meeting and that the Provisional Constitution will then cease to be in force. According to the judicature of the Constitutional Court, however, this happened at the first session on December 19, 1945.
- Law transition law
The law transition law (R-ÜG, long title: Constitutional law of May 1, 1945 on the restoration of legal life in Austria ) served to remove typically National Socialist legislation incompatible with a real democracy. It granted the Provisional State Government the power to repeal such regulations by simple announcement, which was done 34 times for certain subject areas by June 30, 1947. Other laws and ordinances passed after March 13, 1938 were put into provisional validity until they were revised. ( For example, the German Energy Industry Act 1935, which has been in force since 1939 , was partially in force until 2000.) The law was passed on May 13, 1945 and backdated to May 1. On January 1, 2004, in addition to linguistic adjustments, Section 3 (Commission for Standardization and Simplification) was repealed.
Other legal provisions were changed with individual laws, which also listed the repealed regulations and the legal provisions that might have to be reinstated.
- Vienna Constitutional Transition Act (WV-ÜG)
With the constitutional law of July 10, 1945, the provisional state government reinstated the Vienna City Constitution as it existed in 1931. Corporate and National Socialist provisions on the municipal code of Vienna were repealed. Vienna was thus again a separate federal state. The border with Lower Austria remained for the time being like in NS- Greater Vienna . Provisional regulations governed how to proceed where the restoration of the city constitution was not possible immediately.
- Burgenland Act
In the provisional constitution , Burgenland remained divided between Lower Austria and Styria. There was resistance to this in Burgenland, which is why Burgenland was re-established as an independent state with the constitutional law of August 29, 1945, which came into force on October 1, 1945 by amending the provisional constitution.
Art. II to VI (takeover of state land, exemption from taxes, provisional adoption of regionally applicable legal provisions, entry into force and enforcement) were determined to no longer apply on December 31, 2007, the amendment of the provisional constitution remains with the re-establishment of the federal state.
- 2. Constitutional Transitional Act
According to the wording of the law, the provisional constitution should expire six months after the meeting of the freely elected parliament. However, after the National Council election on November 25th, the Provisional State Government suspended it from the day of the first session of the National Council (it took place on December 19, 1945). Now the B-VG was again unrestricted. The transition was regulated by the 2nd Constitutional Transition Act (2nd V-ÜG, full title: Constitutional Act of December 13, 1945, which made constitutional orders on the occasion of the meeting of the National Council and the state parliaments ).
On December 31, 2007, the law was declared no longer applicable or repealed.
Election Act 1945
On October 19, 1945, the Provisional State Government passed the constitutional law on the first election of the National Council, the Landtag and the City Council of the City of Vienna in the liberated Republic of Austria . Former members of the NSDAP , the SS and the SA were excluded from these elections. The elections took place on November 25, 1945; see National Council election in Austria 1945 . The first session of the National Council took place on December 19, 1945. On December 20, 1945, the Federal Assembly (National Council and Federal Council) elected the previous State Chancellor Karl Renner as Federal President ; on the same day he appointed the Federal Government Figl I and served until his death on December 31, 1950.
Area Change Act 1946/1954
On July 26, 1946 (!), The National Council passed a federal constitutional law on changing the borders between the federal states of Lower Austria and Vienna . Due to the objection of the Allied Council, the law could only be published eight years later, on June 23, 1954, and came into force on September 1, 1954. The border that was established between the two federal states still exists today. See: The end of Greater Vienna .
State Treaty of Vienna 1955
On May 15, 1955, the State Treaty on the restoration of an independent and democratic Austria , the so-called Austrian State Treaty , was signed. It came into force on July 27, 1955. The contract ended occupation law in Austria; the republic was now sovereign again.
In the contract she undertook, among other things,
- not to join Germany (Art. 4),
- to guarantee the Slovene minorities and the Croatian minority their rights (Art. 7 Para. 2 and 3),
- to remain a democratic republic (Art. 8),
- continue to work against Nazi organizations (Art. 9 and 10),
- to maintain the Habsburg Law (Art. 10),
- Not to include persons in the armed forces who were active in the German armed forces with the rank of colonel or higher or who were not exonerated by Austria as former National Socialists (Art. 12), and
- not to participate in the rearmament of Germany (Art. 15 Z. 2).
These provisions have constitutional status on the basis of a federal constitutional law passed on March 4, 1964.
It should be noted that occupation law decisions made by Austria between 1945 and 1955 were always regarded as factual events, but were not incorporated into the Austrian legal system. Such decisions by the Allied Council were therefore not published in the Federal Law Gazette for the Republic of Austria .
Neutrality Act 1955
On October 26, 1955, the Federal Constitutional Law on the neutrality of Austria was passed.
Contrary to popular opinion, Austrian neutrality is not part of the State Treaty of 1955, it does not appear in this agreement. The fact that it was the most important additional product to the successful state treaty negotiations at the time does not change this fact. [...] From the point of view of Austria's interest, it was an important point not to have accepted a guarantee of neutrality from the signatory powers in 1955 ... ( Franz Vranitzky )
After Austria's accession to the EU, the neutrality law was not formally repealed by the following treaties and constitutional provisions, but it was heavily overlaid. See Austrian neutrality .
European Convention on Human Rights 1958
The Convention for the Protection of Human Rights and Fundamental Freedoms (later for short: ECHR) was ratified by Austria on September 3, 1958. In a Federal Constitutional Act of March 4, 1964 amending the B-VG, the constitutional status of the convention including the additional protocol is established.
European Free Trade Association 1960
Austria could not and did not want to join the EEC for reasons of neutrality and therefore took part in the establishment of the EFTA ; accession was ratified on March 28, 1960. In the Federal Constitutional Act of March 4, 1964, Art. II, Item 8, states which articles of the Convention establishing the European Free Trade Association have constitutional status. Austria left the EFTA on January 1, 1995, when its accession to the EU took effect.
Compulsory military service and alternative service in 1975
After the Second World War and the Austrian State Treaty of 1955, the Austrian Armed Forces were set up again according to the principle of general military service only applicable to men , although this was initially only regulated by simple law. With the Federal Constitutional Act of July 8, 1975, compulsory military service or alternative military service ( alternative service ) was anchored in the constitution for men .
This became the principle of equality that has been in force since the B-VG 1920 came into force - all German citizens are equal before the law. Rights of birth, gender, class, class and creed are excluded. - limited in its validity. The unequal treatment of men compared to women was therefore no longer unconstitutional.
Ombudsman Board 1977
Protection of personal freedom 1988
The law of October 27, 1862 (RGBl. No. 97/1862) for the protection of personal freedom, which had constitutional status in the republic, was amended on January 1, 1991 by the Federal Constitutional Act of November 29, 1988 on the protection of personal freedom replaced.
"Loop-in regulation" for women's pensions
Since a change in employee pension insurance in 1914, it has been the undisputed rule that women should be allowed to retire five years earlier than men. This regulation was adopted in the General Social Insurance Act (ASVG) of September 9, 1955. At the beginning of the 1990s, the Constitutional Court recognized this as a violation of the principle of equality of the B-VG. However, the red-black federal government Vranitzky III was unwilling to end the unconstitutional situation immediately. Since she had the constitutional majority in the National Council, it was decided by the Federal Constitutional Act of December 29, 1992 that the normal retirement age of women in social insurance will be gradually brought into line with that of men by 2033. The basis for further lawsuits by disadvantaged men before the VfGH was thus withdrawn.
Development since 1994
European Union since 1994
An overall amendment to the Federal Constitution , which according to Art. 44 Para. 3 B-VG can only be made by means of a referendum, has only taken place once since the founding of the republic, namely when Austria joined the European Union . The referendum on the accession requested by the Federal Government in Brussels in 1989 took place on June 12, 1994 and resulted in two-thirds in favor. On the basis of this, the responsible bodies were authorized by the constitutional law of September 9, 1994 to conclude the accession treaty on January 1, 1995.
On this occasion, the Federal Constitutional Law in the version of 1929 (B-VG) was renamed the Federal Constitutional Law (B-VG) .
Since joining the EU, the constitutional rules have been adapted several times to the requirements of participation in the Union and to the further development of the common legal framework of the Union. So was z. For example, on July 21, 1998, in connection with the Treaty of Amsterdam, the constitution stipulated which organs are to effect Austria's participation in the EU's common foreign and security policy. Most recently, the Federal Constitutional Law of July 27, 2010 referred to as the accompanying amendment to Lisbon, stipulated something similar with regard to the Treaty of Lisbon .
Nuclear weapons and nuclear power plant moratorium 1999, minority protection 2000
On August 13, 1999, the Federal Constitutional Law for a nuclear-free Austria was published, which prohibits nuclear weapons and nuclear power plants in the country.
On August 8, 2000, the state committed itself in a federal constitutional law to respect, safeguard and promote the language, culture, existence and preservation of the autochthonous ethnic groups in Austria .
Federal Constitutional Law 2008
The long and rather confusing law of January 4, 2008 consists of two parts. Article I makes extensive detailed changes to the B-VG, Article II is entitled First Federal Constitutional Law Consolidation Act .
The further amendment discussed between March and May (Second Federal Constitutional Law Consolidation Act) was then not implemented.
In the B-VG, new provisions were created on January 1, 2008 (among other regulations) in accordance with Art. I, line 3, with which individual sovereign rights can be transferred to other states or intergovernmental institutions in the interests of deepening the EU . The presidential office of the Federal President was regulated in line 15. Universities and public prosecutors are redefined in lines 17 and 19. In line 24, the possibility is created to delegate state tasks to the public self-governing bodies (such as the Chamber of Labor , the Chamber of Commerce , etc.). In line 28, the Asylum Court is created.
In the decades since 1945, the enactment of constitutional provisions, including in simple federal laws, has resulted in a very confusing development in Austrian constitutional law. Art. II includes an extensive, so far one-time adjustment:
- 62 constitutional laws (or parts thereof) were found to be no longer valid, nine were repealed,
- 156 constitutional provisions in simple laws were found to be no longer valid, ten were repealed,
- six constitutional treaties were found to be no longer valid,
- 22 federal constitutional laws, 46 constitutional provisions and around 180 constitutional provisions in international treaties were downgraded to simple legal status.
Invoice and financial control 2010
On December 14, 2010, the provisions on invoice and management control were changed in the B-VG. The audit office is now authorized to audit municipalities with 10,000 inhabitants or more; up to now, the lower limit was 20,000 inhabitants. This extends his control options from 24 to 71 municipalities. At the same time, the state audit offices in some federal states are authorized to audit municipalities. In addition, a state government or a state parliament can, under certain conditions, request the audit office to audit a municipality with fewer than 10,000 inhabitants.
Passive federal election right for Habsburgs 2011
On the election of the Federal President, the B-VG contained the sentence in Article 60, Paragraph 3: Members of governing houses or families who previously governed are excluded from eligibility. With effect from October 1, 2011, this sentence was deleted from the constitution. Members of the Habsburg-Lothringen family who are eligible for election to the National Council can now also be elected Federal President if they are at least 35 years old.
EU Charter of Fundamental Rights in constitutional status 2012
On March 14, 2012, the Constitutional Court (VfGH) rightly recognized on the occasion of an (unsuccessful) constitutional complaint by asylum seekers that the Charter of Fundamental Rights of the European Union, which entered into force on December 1, 2009, was analogous to the European Convention on Human Rights, which was given constitutional status in 1964 (see above) has constitutional status. Austrian laws and administrative acts that contradict the Charter can now be repealed as unconstitutional by the Constitutional Court. On the basis of this finding, constitutional law expert Bernd-Christian Funk considered the discussed new codification of fundamental rights in Austria to be invalid.
Administrative jurisdiction amendment 2012
With the 2012 amendment to administrative jurisdiction , which came into force on January 1, 2014, the administrative jurisdiction in Austria, which had previously only been organized in one stage, was replaced by a two-stage system. In the first instance (depending on the competent authority or legally specified exception) one of the nine regional administrative courts, the Federal Administrative Court or the Federal Finance Court will decide on complaints against the notices of the administrative authorities and other contestable administrative acts.
Against the decisions of these administrative courts of first instance, the appeal (appeal) goes on to the administrative court. Numerous independent collegial bodies of the federal and state governments, which were previously responsible for certain appeals proceedings against administrative decisions, were dissolved when this amendment came into force. B. the Independent Administrative Senates, which merge into the state administrative courts , and the Asylum Court , which merges into the Federal Administrative Court.
Since 1920 the federal government had the right to object to legislative resolutions of the state parliaments and thus to prevent the announcement for the time being. In the amendment in question, this right was reduced to resolutions that concern the involvement of federal agencies in the implementation of a state law or that relate to the tax system.
Restructuring of the security authorities in 2012
On May 23, 2012, the Federal Constitutional Law on the restructuring of the security authorities in 2012 was announced , with which nine uniform state police departments under the Ministry of the Interior were created in place of the previous federal police departments, state police commanders and security departments .
Basic principles of the Federal Constitution
In the legal discussion, the basic principles are at the highest legal level. Your definition is important in order to be able to estimate what is meant by an “overall change to the Federal Constitution” . For an overall change, both a two-thirds majority in parliament and a referendum are required (mandatory referendum). Since the constitutional legislature has at no time stipulated what is to be understood by an overall change, legal doctrine and constitutional case law have developed the basic principles of the Federal Constitution in order to be able to accept an overall change if it is profoundly touched, changed or abolished.
The basic principles, building laws or guiding principles of the Federal Constitution are defined differently by different textbook authors, the Constitutional Court and in legal specialist articles. As a rule, however, the following basic principles are generally recognized:
The democratic principle
The democratic principle concerns the question of the form of rule and the formation of political will. Political power in society is legitimized by the people. This principle is anchored in Article 1 of the B-VG: “Austria is a democratic republic. Your right comes from the people. ”Art. 26 B-VG is also particularly important here; it guarantees general and secret voting rights. Austria is a representative democracy, which is why there are a number of instruments:
- direct democracy (= self-determination by election), this includes referendums , referendums and referendums ,
- indirect democracy (= election of representatives), which are guaranteed by Art. 42–49 B-VG (National Council is the central legislative body) and Art. 140 B-VG (Constitutional Court examines laws for their democratic legality).
The republican principle
The republican principle applies to the form of government which, unlike the monarchy, does not provide for a top political mandate that is inherited or elected by aristocrats . In the case of a democratic republic, the top function of the state must be exercised by one or more mandataries elected directly or indirectly on the basis of universal suffrage; in the case of Austria, this is the Federal President . Art. 60 B-VG (direct election of the Federal President) prevents the office of the Federal President in Austria from being hereditary. The republican principle is anchored in the constitution: According to Art. 1 B-VG Austria is a democratic republic. In the early phase of the Republic of Austria, the republican principle was opposed to not yet given up claims to rule by the House of Habsburg , against which the republic protected itself with the Habsburg law .
The federal principle
The federal principle applies to federalism . Austria is neither a confederation nor a unitary state . The relationship between the federal states and the federal state is governed by domestic law, not by international law. This principle is anchored in Article 2 Paragraph 1 of the B-VG: "Austria is a federal state."
Every matter of legislation or enforcement is assigned either to the federal government or the federal states in Articles 10-15 B-VG (“competence articles”). A concurrent legislation as in Germany is foreign to the Austrian constitutional order.
In legal terms, we speak of the "dual system of enumeration and general competence": all state powers in legislation and enforcement lie with the federal states (general competence), only precisely listed competences (enumeration) in legislation and / or enforcement are exercised by the federal government. This list is of course so extensive that in practice only a few matters in legislation are left to the Länder; the idea of federalism in terms of legislation is rather weak in Austria. What is important, however, is the role of the federal states in enforcing the law.
The most important matters in which legislation and enforcement are a matter for the state include building law, the local security police, fire police, nature conservation, sports law, hunting and fishing law, event law, especially theater and cinematography, and, of course, the service law of the state and Community workers.
In some matters, the federal government only has the competence to legislate in principle, while the federal states are responsible for implementing legislation and enforcement; for example in the poor, child welfare or electricity sector.
Finally, an important group of competencies relates to the enforcement of federal law by the states: although the legislation here is a matter for the federal government, enforcement is carried out directly by the state authorities, which - unlike in the normal case of indirect federal administration , where state authorities function functionally as federal authorities, and also are bound by instructions from federal bodies (mostly ministers) - act here “in their own name”. Examples of this are citizenship law or street police matters.
The rule of law
The constitutional principle concerning the rule of law, in particular the principle of legality and the principle of separation of powers . The principle of legality can be found in Art. 18 Para. 1 and 2 B-VG: “The entire state administration may only be exercised on the basis of the laws.” Furthermore, the “ tiered structure of the legal system ” through generation and testing procedures guarantees that laws have been legally created . These laws are checked again by the Constitutional Court (VfGH) for their constitutionality (including lawful creation), but only if - for example in a complaint procedure - it would have to base its decision on what it believes to be an unconstitutional law.
This request can be achieved by the complainant by filing a complaint (according to Art. 144 Para. 1 B-VG). In addition, there is the possibility of submitting an individual application (in accordance with Art. 140, Paragraph 1, 4th sentence B-VG) to the Constitutional Court. In addition, federal laws by a state government and state laws by the federal government can be submitted to the Constitutional Court to examine whether they are constitutional (according to Art. 140, Paragraph 1, 2nd sentence B-VG).
The liberal principle
The liberal principle states that there are limits to state action in order to be able to guarantee a certain amount of freedom for citizens. This is guaranteed by the catalogs of fundamental rights - these are the Basic Law of 1867; the ECHR ( European Convention on Human Rights ) and its additional protocols; the BVG on the protection of personal freedom; the law for the protection of house rights; and much more. Certain "defense rights" are anchored in it, for example protection against arbitrary arrest, protection of freedom of expression, protection against house searches, etc.
The principle of separation of powers
The principle of the separation of powers consists of the separation of powers in the formal sense, the separation of powers in the organizational sense and the separation of powers in the material sense and was introduced to prevent the concentration of power in one of the three state powers . In a functional sense, the separation of powers means that there is a legislative (legislative body), a judicial (judging body) and an executive (administrative and executive body), to which certain tasks are assigned. The separation of powers in the organizational sense determines that there are certain organs within the individual corporations that are occupied by persons (for example, there is the organ of the Federal President, which is held by a person elected by the people for six years). The separation of powers in the material sense is the allocation of certain tasks and competencies to certain organs.
Nevertheless, there are interdependencies between the ideally “separate powers” through rights of appointment and dismissal, rights of participation and rights of control . For example, the Federal President appoints the members and substitute members of the Constitutional Court (VfGH). The right to propose, on the other hand, is divided between the Federal Government (the right to propose the President and Vice President of the Constitutional Court and nomination of six constitutional judges and three substitute members) and the National Council and the Federal Council (the right to propose the other six members and three substitute members). Furthermore, the Federal President can dissolve the National Council on the proposal of the Federal Government. However, it again requires the approval of the National Council in order to be able to conclude certain international treaties. In addition, he must answer to the federal people and can be deposed by them by referendum. This system of separation and connection of state powers is called checks and balances .
The Austrian Federal Constitution is shaped by the principles of parliamentary democracy and the separation of powers . The federalist principle is relatively weak (compared to Germany or Switzerland, for example ), as was the case since the reign of Maria Theresa and in the Austrian Empire and in Cisleithanien . The individual federal states have no competencies in the judicial branch . The federal government also has a clear preponderance in the area of legislation . In contrast, a large part of the state administration is carried out by the federal states.
Fundamental rights & state goals
Main article: Fundamental rights (Austria)
Most of the basic rights of the Federal Constitution are not standardized in the B-VG itself. Since the Constituent National Assembly was unable to agree on a corresponding catalog of basic rights when drafting the B-VG in 1920, the provisions of the Basic State Law of December 21, 1867 on the general rights of citizens were adopted into the constitution, as it was in all of them until the end of October 1918 Countries of Cisleithania .
There, for example, the equality of all citizens before the law, the freedom of movement of persons and property within the national territory, the freedom of association, assembly and freedom of the press, the protection of domestic rights, property, the confidentiality of letters, freedom of religion, freedom of employment and similar liberal basic rights are standardized . Some other laws of the kingdoms and countries represented in the Imperial Council were also adopted, such as the law on the protection of personal freedom that was in force until 1990 or the law on the protection of domestic rights .
Even if the B-VG does not contain a catalog of fundamental rights, some provisions are “similar in character to fundamental rights”. Examples of this are the principle of equality in Art. 7 Para. 1 B-VG, the right to the legal judge in Art. 83 Para. 2 B-VG or the abolition of the death penalty in Art. 85 B-VG, which nowadays as a right to Life is read.
In the period that followed, further basic rights were added. For example, relevant provisions are contained in the State Treaty of 1955. The European Convention on Human Rights came into force in Austria in 1958. It has constitutional status and is directly applicable by authorities. This gives rise to a number of fundamental rights, such as the right to life , nulla poena sine lege (“No punishment without legal provision”) according to Art. 7 ECHR or the right to a fair trial according to Art. 6 ECHR.
Further basic rights were subsequently introduced through constitutional laws or constitutional provisions in simple laws. Examples of this are the Federal Constitutional Law on the Protection of Personal Freedom of 1988 (see section Development 1945–1994), the right to data protection in the Data Protection Act or the right to civilian service in the Civilian Service Act .
State objectives in the Austrian Federal Constitution
- permanent neutrality,
- Ban on Nazi activities (since 1955),
- broadcasting as a public task (since 1974),
- comprehensive national defense (since 1975),
- comprehensive environmental protection (since 1984),
- equal treatment of disabled people (since 1997),
- equality between men and women (since 1998).
The following updated national goals have also been in effect since 2013, and the republic (federal, state and municipalities) is responsible for ensuring them:
- Animal welfare,
- comprehensive environmental protection,
- Ensuring water and food supplies,
New regulations & changes
Creation of constitutional provisions
Constitutional laws can only be passed and amended with a qualified majority of two thirds of the members of the National Council with at least half of the members present (Art. 44 B-VG). If a third of the members of the National Council or the Federal Council demand a referendum on this partial amendment, this must be carried out prior to authentication by the Federal President (Art. 44 B-VG).
Far-reaching changes to the constitution that significantly affect the basic principles are referred to as overall changes to the federal constitution. These changes must be confirmed by a referendum in addition to the procedure described above.
So far there has only been one legally compliant “overall change” to the Federal Constitution. According to the prevailing view, Austria's accession to the European Union represented a profound change in the federal constitution. A separate accession constitutional law was therefore passed. This was confirmed in a referendum by the Austrian electorate and could therefore come into force.
The Austrian Constitutional Court also judged Section 126a of the Federal Procurement Act in the version of 2001 as a (this time unlawful) general amendment to the Federal Constitution, which withdrew parts of the state procedural law from review by the Constitutional Court and thus represented a serious interference with the rule of law. Since no referendum was held on this overall change, it was unconstitutional and was therefore repealed by the Constitutional Court.
In 2003 the so-called “Constitutional Convention” or “ Austria Convention ” (official name) was set up by the government ( Cabinet Schüssel II ) under the direction of the then President of the Audit Office, Franz Fiedler , who was supposed to “clear out” the current constitution. The convention was tasked with adapting the Federal Constitution to the new circumstances that have arisen over the decades - especially since joining the EU - and to develop proposals for a new constitution. It ended on January 31, 2005, without having formally achieved the target. Although there is a draft constitution, it was drafted by Franz Fiedler on the basis of the results of the Convention's work, but was not approved by the plenary session of the Convention. Especially on the part of the ÖVP, this draft is seen as a suitable starting point for further efforts to work out a new constitution (or even just a “major constitutional amendment”) in the Austrian Parliament (as provided for by constitutional law).
Constitution and politics of the day
In Austria, simple legal matters can also be raised to constitutional status. In such a case, the relevant paragraphs must be expressly designated as constitutional provisions and passed by a two-thirds majority like a constitutional law. This possibility was often used in the Second Republic, especially by the grand coalition , which mostly had the necessary two-thirds majority, above all to remove provisions that obviously contradict the constitutional principle of equality from the access of the Constitutional Court and for future governments to make a change more difficult (see above: "Looping regulation" for women's pensions in the section Development 1945–1994 or the Federal Constitutional Law 2008).
- Klaus Berchtold : Constitutional History of the Republic of Austria , Vienna 1998. ISBN 3-211-83188-6 .
- Wilhelm Brauneder : Österreichische Verfassungsgeschichte , 10th edition, Vienna 2005. ISBN 3-214-14875-3 .
- Bernd-Christian Funk : Introduction to Austrian constitutional law . 13th edition, Graz 2007. ISBN 978-3-7011-01047 .
- Theo Öhlinger : Constitutional Law . 7th edition, Vienna 2007. ISBN 978-3-7089-0152-7 .
- Christoph Grabenwarter : Open statehood: Austria . In: Armin von Bogdandy , Pedro Cruz Villalón , Peter M. Huber (eds.): Handbuch Ius Publicum Europaeum (IPE) . CF Müller Verlag, Heidelberg 2008, Vol. II, pp. 211–241. ISBN 978-3-8114-6301-1 .
- Ernst C. Hellbling: Austrian constitution and administrative history , 2nd edition, Vienna 1974. ISBN 3-211-81256-3 .
- Oskar Lehner: Austrian constitutional and administrative history. With the basics of economic and social history , 4th edition, Linz 2007. ISBN 978-3-85487-339-6 .
- Ewald Wiederin : Basics and main features of state constitutional law: Austria . In: Armin von Bogdandy, Pedro Cruz Villalón, Peter M. Huber (eds.): Handbuch Ius Publicum Europaeum (IPE) . CF Müller Verlag, Heidelberg 2007, Vol. I, pp. 389-449. ISBN 978-3-8114-3541-4 .
- Federal Constitutional Law of the Republic of Austria , index of federal law with category 10 constitutional law
- Constitutions of Austria (1713 until today)
- Entry on the Federal Constitution (Austria) in the Austria Forum (in the AEIOU Austria Lexicon )
- Website of the Austria Convention
- Walter Berka , Textbook Constitutional Law , Springer, Vienna 2005, margin no.74.
- StGBl. No. 1/1918 (= p. 1)
- StGBl. No. 3/1918 (= p. 3)
- StGBl. No. 5/1918 (= p. 4)
- StGBl. No. 209/1919 (= p. 513)
- StGBl. No. 211/1919 (= p. 514)
- StGBl. No. 303/1920 (= pp. 995–1245)
- StGBl. No. 303/1920 (= p. 1045 f.)
- StGBl. No. 450/1920
- Federal Law Gazette No. 1/1920
- Reichsgesetzblatt No. 142/1867
- Federal Law Gazette No. 85/1921 (= p. 305)
- Federal Law Gazette No. 202/1922 (= p. 349)
- Federal Law Gazette No. 268/1925 (= p. 927)
- Federal Law Gazette No. 367/1925 (= p. 1393)
- Federal Law Gazette No. 392 (= p. 1323)
- Federal Law Gazette No. 1/1930
- Federal Law Gazette No. 238/1934 (= p. 435)
- Federal Law Gazette No. 239/1934 (= p. 437)
- Federal Law Gazette No. 299/1935 (= p. 1355 =)
- Werner Frotscher / Bodo Pieroth , Verfassungsgeschichte , 2nd edition, Munich 1999, no. 634
- StGBl. No. 1/1945
- StGBl. No. 2/1945 (= p. 2 f.)
- Adolf Schärf : Between Democracy and People's Democracy. Austria's unification and rebuilding in 1945 , Verlag der Wiener Volksbuchhandlung, Vienna 1950, p. 25
- Austrian Institute for Contemporary History, Vienna. Ernst Fischer estate, NL-38, Do 126, manuscript. Quoted from Oliver Rathkolb: '' The paradoxical republic. Austria 1945 to 2005. Paul Zsolnay Verlag, Vienna 2005, ISBN 3-552-04967-3 , p. 88
- Adolf Schärf: Between Democracy and People's Democracy. Austria's unification and rebuilding in 1945 , Verlag der Wiener Volksbuchhandlung, Vienna 1950, p. 32
- StGBl. No. 4/1945 (= p. 7)
- Adolf Schärf: Between Democracy and People's Democracy. Austria's unification and rebuilding in 1945 , Verlag der Wiener Volksbuchhandlung, Vienna 1950, p. 31
- Art. 2: Paragraph 1 Item 5, Paragraph 2 Item 4 and Paragraph 3 Item 5 BGBl. I No. 2/2008
- StGBl. No. 5/1945 (= p. 8); Change with StGBl. 143/1945 (Burgenland Act); Change with StGBl. No. 196/1945
- Note on Constitutional Transition Act Art. 4 in ris.bka.gv.at
- StGBl. No. 6/1945 (= p. 12)]
- Federal Law Gazette No. 120/1947
- BGBl. I No. 100/2003 Art. 2 (PDF p. 5)
- Federal Law Gazette No. 744/1994 , StGBl. No. 67/1945 (= p. 88)
- StGBl. No. 143/1945 (= p. 191)
- Art. 2 Paragraph 2 Z 5 Federal Law Gazette I No. 2/2008
- StGBl. No. 232/1945 (= p. 423)
- Art. 2: Para. 2 no. 6, Para. 3 no. 6 and Para. 6 Federal Law Gazette I No. 2/2008
- StGBl. No. 198/1945 (= p. 317)
- Federal Law Gazette No. 110/1954 (= p. 721)
- Federal Law Gazette No. 152/1955 (= p. 725)
- Federal Law Gazette No. 59/1964 (= p. 623), Art. II, point 3
- Federal Law Gazette No. 211/1955 (= p. 1151)
- Franz Vranitzky : Political Memories . Paul Zsolnay Verlag, Vienna 2004, ISBN 3-552-05177-5 , p. 313 f.
- Federal Law Gazette No. 210/1958 (= p. 1927)
- Federal Law Gazette No. 59/1964 (= p. 623)
- Federal Law Gazette No. 100/1960 (= p. 893)
- Article 9a B-VG Federal Law Gazette No. 368/1975
- Art. 7 para. 1 B-VG, BGBl. No. 1/1920 (= p. 1)
- Federal Law Gazette No. 121/1977 (= p. 559)
- Federal Law Gazette No. 684/1988 (= p. 4493)
- RGBl. No. 138/1914 (= p. 721)
- Federal Law Gazette No. 833/1992 (= p. 4609)
- Federal Law Gazette No. 744/1994 (= p. 5805)
- Federal Law Gazette No. 1013/1994 (= p. 7301)
- Federal Law Gazette I No. 83/1998 (= p. 815)
- Federal Law Gazette I No. 57/2010
- BGBl. I No. 149/1999 (= p. 1161)
- BGBl. I No. 68/2000 (= p. 757)
- Federal Law Gazette I No. 2/2008
- Federal Constitutional Law, amendment; First Federal Constitutional Law Consolidation Act (314 dB) and First Federal Constitutional Law Consolidation Act (7830 / BR dB) , parliamentary materials , National Council resp. Federal Council, parlament.gv.at.
- Federal Constitutional Law, with which the Federal Constitutional Law is amended and a Second Federal Constitutional Law Consolidation Law is enacted , ris.bka; Federal Constitutional Law, amendment; Second Federal Constitutional Law Consolidation Act (168 / ME) , parlament.gv.at
- Federal Law Gazette I No. 98/2010
- Charles W. Edtstadler: The accounting and audit performed in: newspaper Salzburger Nachrichten , December 20, 2011, p 18
- Federal Law Gazette I No. 43/2011
- the Constitutional Court of March 14, 2012, in particular from margin number 25 on; on the VfGH website ( Memento from July 23, 2012 in the Internet Archive )
- Press release: Charter of Fundamental Rights of the European Union can be seen like the constitution , broadcast by the Constitutional Court , Vienna, May 4, 2012
- Charter of Fundamental Rights of the European Union, in: Official Journal of the European Union, Brussels, 14 December 2007, C 303/1 f. (PDF)
- Basic rights in constitution: A milestone for radio , message on the ORF website from May 4, 2012
- Circular of the constitutional service of the Federal Chancellery of August 17, 2012 on the current legal situation ( Memento of September 23, 2015 in the Internet Archive )
- Federal Law Gazette I No. 49/2012
- Constitutional judges: Overview on the website of the Constitutional Court.
- Franjo Schruiff: Background: The legal institute "State objective determination". May 19, 2000.
- RIS - Sustainability, Animal Welfare, Comprehensive Environmental Protection, Ensuring the Water and Food Supply and Research - Consolidated Federal Law, version dated February 18, 2018. Retrieved February 18, 2018 .
- § 126a BVergG i. d. F. BGBl. I No. 125/2000 .
- Finding G12 / 00, among others, of the Constitutional Court of October 11, 2001 (online as full text (PDF) in the federal legal information system ).