Overall amendment of the federal constitution
An overall amendment to the Federal Constitution refers to a fundamental amendment to the Austrian Federal Constitution , in particular the Federal Constitutional Act (B-VG). An overall change must be approved by the federal people by referendum .
Legal text
The relevant legal norm is Art. 44 Para. 3 B-VG :
- Any overall amendment to the Federal Constitution, but only a partial amendment if this is requested by a third of the members of the National Council or the Federal Council , must be submitted to a vote by the entire federal people after the end of the procedure in accordance with Art. 42, but before certification by the Federal President .
Building laws of the federal constitution
Contrary to the wording, the overall change does not mean changing the entire constitution, i.e. replacing the existing constitution with a new one. Rather, it refers to changing or eliminating one or more of the basic principles of the constitution (building laws) . These building laws are:
- The republican principle ( Article 1 of the Federal Constitutional Law, B-VG )
- The democratic principle ( Art. 1 , Art. 60 Paragraph 5, Art. 68, Art. 142 Paragraph 1 B-VG)
- The federal principle ( Art. 2 Para. 1 B-VG)
- The principle of power- sharing (Art. 94 B-VG)
- The rule of law (Art. 18 Paragraph 1, Art. 140 Paragraph 1 B-VG)
- The liberal principle ( StGG 1867 , ECHR , BVG on the protection of personal freedom 1988 )
If these are to be restricted or eliminated at all, this may only be done after approval by the people in a referendum.
Mandatory referendum
Referendum due to general amendments to the Federal Constitution
Since the Federal Constitution came into existence, the standard has resulted in a referendum actually being carried out on its basis. This was the case with the vote on Austria's accession to the European Union on June 12, 1994, which was accepted by the people with 66.6% yes-votes. The referendum was necessary because of the profound interventions in several of the principles associated with accession; for political reasons, however, it would have been carried out without any obligation to do so. Affected by the accession were in particular the democratic principle (transfer of legislative powers to the EU organs that were not directly democratically legitimized), the rule of law (since the Constitutional Court's monopoly on reviewing norms previously valid was partially transferred to European instances) and the federal principle (due to the transfer of National competencies at EU bodies).
No referendum despite overall changes to the federal constitution
The May Constitution of 1934 , enacted during the period of Austrofascism , resulted in an overall amendment to the Federal Constitution, but it was decided without the referendum, which is mandatory according to Art. 44 Para. 3 B-VG.
The constitutional provision of Section 126a of the Federal Procurement Act , passed in 2000, has made the federal state regulations on legal protection in procurement procedures unconstitutional. The Constitutional Court saw this as an inadmissible interference with the constitutional and democratic building law of the Federal Constitution, which represents an overall amendment to the Federal Constitution, so that a referendum would have been necessary. He has repealed this provision and thus reversed the entire amendment to the Federal Constitution.
Jurisprudence
The implementation of a referendum on an overall amendment to the Federal Constitution decided by the National Council cannot be enforced. The Constitutional Court derives from Art. 44 Para. 3 B-VG only the right to participate in a referendum for the individual entitled to vote, but rejects an independent legal right to hold a mandatory referendum.
According to this case law, failure to hold a mandatory referendum is considered a procedural deficiency in the legislative process and can be criticized in the context of the abstract control of norms or in the context of complaints in which the complainants claim that their rights have been violated by the constitutional law in question. As part of such a procedure, the Constitutional Court in 2001 - for the first time - repealed a constitutional provision on the grounds that it was unconstitutional. In its finding, the VfGH criticized the action of the Federal Constitutional Legislature, which had restricted the examination powers of the Supreme Court in Section 126a of the Federal Procurement Act with constitutional provision. However, the Constitutional Court rejected the legal view of the federal government and the Salzburg state government, according to which the suspension of individual constitutional provisions does not constitute a substantial interference with the protection of the existing status of Article 44, Paragraph 3, in which it ruled, among other things:
- "If, however, such constitution-suspending provisions should be permissible at all, they should - as the Constitutional Court provisionally assume - only be enacted in proceedings under Article 44 (3) B-VG. (...) The principle of the relevance of the constitution, as well as 'the competence of the Constitutional Court to review norms as a central element of the constitutional building law of the Austrian Federal Constitution' ( VfSlg . 15.215 / 1998), and such principles should in their core be the constitutional legislature in the sense of Art. 44 para. 1 B-VG are not at random (cf. VfSlg. 15.373 / 1998). "
The relevant provision of the Federal Procurement Act was therefore repealed by the Constitutional Court as being unconstitutional.
history
The founders of the first Austrian republic agreed in the constituent national assembly in 1919 that the final constitution should include binding referendums on all constitutional amendments. This promise of the constituent National Assembly was only partially implemented in the Federal Constitutional Act 1920 with the regulation on general amendments to the Federal Constitution with Article 44, Paragraph 3.
Total change to the state constitution
In the federal state of Salzburg there is a similar regulation, according to which every overall change to the state constitution must be subjected to a referendum before it is announced in the state law gazette. On this basis, there was a compulsory referendum in 1998 to abolish the mandatory proportional representation of the state government.
literature
- Theo Öhlinger : Constitutional Law , 8th edition, Facultas Verlag, Vienna 2009, ISBN 978-3-7089-0405-4 .
- Andreas Janko : Overall amendment of the federal constitution . Verlag Österreich , 2004, ISBN 3-7046-4284-3 ( habilitation thesis at the University of Linz ).
Individual evidence
- ↑ Basic principles of the Federal Constitution. Parliament active → Parliament explains → The Federal Constitution , on parlament.gv.at
- ^ Elisabeth Holzleithner: Basic principles of the Austrian constitution. Handout ( pdf , on univie.ac.at, accessed October 30, 2016).
- ↑ Helmut Wohnout: Political-legal controversies about the 1934 constitution in authoritarian Austria. In: Erika Weinzierl (ed.): Justice and contemporary history. Contributions to the symposium 1976–1993. Volume 2, Jugend & Volk, Vienna 1995, ISBN 3-224-12999-9 , p. 833ff.
- ↑ knowledge G12 / 00, among other things by the Constitutional Court on 11 October 2001, available on the Legal Information System of the Republic of Austria (RIS).
- ↑ knowledge G62 / 05 the Constitutional Court of 18 June 2005, available in the legal information system of the Republic of Austria (RIS).
- ↑ Article 1, Paragraph 2 of the Act of March 14, 1919 on Representation of the People, StGBl 179/1919
- ↑ Art. 23 para. 2 Salzburg State Constitutional Law
- ↑ Klaus Poier, property Direct Democracy in Austria's state and local. An overview of the legal situation and empirical experience , in: Peter Neumann, Denise Renger (Eds.), Material Direct Democracy in an Interdisciplinary and International Context 2008/2009. Germany, Austria, Switzerland. Baden-Baden 2010, 44f.