Legislative procedure (Austria)

Legislative processes take place in the Republic of Austria at the federal and state level and involve several constitutional bodies . They are introduced by a legislative proposal (also a draft bill, legislative initiative), which is usually introduced by the federal or state government as a so-called government bill .

Legislative procedures for directives (EU framework laws) and ordinances (directly binding EU laws) that are operated by the responsible bodies in the European Union also have an impact on Austria . In these, Austria is represented by a commissioner in the European Commission , more or less the EU government, by elected members of the European Parliament and by a government member in the EU Council of Ministers .

Federal legislation

Right of initiative

According to Art. 41 of the Federal Constitutional Law, there are four ways in which the legislative process can be initiated in the National Council :

by the federal government with a government bill
by members of the National Council
- Initiative request from at least five members of the National Council (§ 26 Paragraph 4 GOG-NR) or
- Application by a committee (§ 27 GOG-NR)
by the Federal Council
- Decision of the Federal Council or
- Request at least one third of its members
through a referendum
- signed by at least 100,000 eligible voters or
- by one sixth of those entitled to vote in three countries

Pre-parliamentary procedure for government bills (assessment procedure)

Before a federal minister submits a draft law to the federal government so that it can be passed as a government bill to the National Council, he obtains statements from all other federal ministers, all state governments as well as the legal and other interest groups (e.g. association of cities, municipalities) in the course of the so-called appraisal procedure. and publishes the draft on Parliament's website. So the so-called social partners , i.e. the chambers ( Chamber of Commerce , Chamber of Labor , depending on the interests also the Chamber of Pharmacists , Austrian Medical Chamber , Bar Association and other professional bodies), the Presidential Conference of the Austrian Chambers of Agriculture and the Austrian Federation of Trade Unions are regularly given the opportunity to comment before parliamentary deliberations. This corresponds to many years of practice and corresponding resolutions of the National Council, which, however, are not binding. The appraisal procedure is regulated in more detail in circulars from the constitutional service of the Federal Chancellery.

Proposals for changes and criticism that are expressed in the review process are taken into account (or not) depending on the intentions of the Federal Minister concerned and, like the draft law, are usually published on Parliament's website. This also gives ordinary citizens, NGOs and companies the opportunity to formulate and express their criticism of the appraised proposal. Neither the federal government nor the parliament are obliged to take the opinions into account in the legislative process. Nevertheless, this gives those subject to the law the opportunity to participate in the legislation.

If the legislative process is initiated by Parliament itself (mostly through an initiative application), there is usually no review process. However, the responsible committee can arrange for a committee review. This proceeds according to the same scheme as the pre-parliamentary assessment. If the Federal Government wants to avoid statements from interest groups etc. in advance, it prompts members of the government parliamentary groups to submit an initiative application for a regulation prepared in the relevant ministry. With such requests, an examined government bill is occasionally changed not insignificantly shortly before the resolution is passed, e.g. B. by simply changing dates or amounts of money specified in the draft law.

Readings in the National Council

First reading

The first reading discusses the general content of the legislative proposal and its allocation to a committee for further processing. It only takes place:

in the event of changes to the rules of procedure of the National Council (§ 108 GOG-NR)
if requested in an initiative application (§ 69 Abs. 4 GOG-NR)
for all other legislative initiatives by resolution of the National Council (Section 69 (3) GOG-NR)

The committee can call in experts and other sources of information to propose changes.

Second reading

The results of the deliberations are then reported to the plenary session of the National Council, which discusses the committee's draft in the second reading . This is followed by the general debate in which the general objectives of the draft and its political implications are discussed. In a special debate , in which the individual sections or paragraphs of the bill can be discussed in detail, usually only minor changes are discussed. During the second reading, amendments, additions and resolutions can be tabled.

Third reading

The third reading is the final plenary debate, in which any contradictions, typing and printing errors are resolved ( Section 74 (2) GOG-NR). Thereafter, the draft law is voted on as a whole (Section 74, Paragraph 1 of the GOG-NR).

Voting procedure

How many of the 183 MPs must be present and how many of them must at least approve a draft in order for a valid resolution to come about is stipulated in the constitution and differs according to the matter dealt with:

	simple federal law	Persistence decision	Constitutional Law
Presence: (presence quorum)	at least 1/3 (61 copies)	at least 1/2 (92 copies)	at least 1/2 (92 copies)
Consent of those present: (consensus quorum)	more than 1/2 (31 copies)	more than 1/2 (47 copies)	at least 2/3 (61 copies)

If this is decided by the plenary session of the National Council, roll-call votes are held, in which the voting behavior of each individual MP is recorded in the minutes, or secret votes using ballot papers, which are to be thrown into an urn by the MPs after being called by the President. In general, however, the governing parliamentary groups place value on the so-called parliamentary group compulsion, i.e. on verifiable, uniform voting behavior of all members of the party (s) concerned and thus on open votes in which consent is given by standing up or raising hands and the majority is given by the president (or before by the committee chairman) is determined immediately.

If the draft law is adopted, the National Council has passed a law that the President of the National Council must forward to the Federal Council without delay ( Art. 42 Paragraph 1 B-VG). The Federal Council is not involved in some of the legislative procedures listed below. This applies, for example, to the rules of procedure of the National Council, the dissolution of the National Council, federal finance laws or the approval of a federal financial statement (Art 42 (5) B-VG).

Treatment in the Federal Council

The Federal Council, which consists of members sent by the nine state parliaments, now has the following options:

He can either raise a reasoned objection within eight weeks (the Chairman of the Federal Council must notify the National Council and the Federal Chancellor in writing within the deadline).
He can expressly consent to the National Council resolution.
He can let the deadline pass without reaction.

Suspensive veto

If the Federal Council raises a well-founded objection, the National Council can repeat its original resolution with a persistent resolution (Art. 42 para. 4 B-VG). The Federal Chancellor has now, insofar as the constitution does not require a referendum or the approval of the federal states (see below), to present the federal law to the Federal President for authentication (see below). The Federal Council can therefore only delay the entry into force of a federal law (suspensive veto).

Absolute veto

In certain cases, the Federal Council can prevent the federal law from coming into force, as its consent is required here (absolute veto):

if a federal law stipulates a deadline for the enactment of an implementing law that is shorter than six months or longer than a year (Art. 15 Para. 6 B-VG).
If constitutional laws or constitutional provisions contained in simple laws restrict the jurisdiction of the states in legislation or enforcement, the approval of the Federal Council, which is to be given in the presence of at least half of the members and a majority of two-thirds (Art. 44 para. 2 B-VG, is required ).
In the case of changes to Article 34 B-VG (it affects the number of mandates of the individual federal states in the Federal Council) and Article 35 B-VG (relating to the election procedure of Federal Council members and their term of office), not only the majority of votes in the Federal Council is required, but also that the majority of the representatives from at least four countries have accepted the amendment (Art. 35 Para. 4 B-VG).
The Federal Council also usually has to give its consent to international treaties (Art. 50 B-VG) in order for them to come into existence.

Approval of the countries

In certain cases, the federal states must agree to the federal law directly, i.e. not through the Bundesrat:

in the case of federal laws that regulate matters relating to public procurement and if these federal laws regulate matters that are a matter for the state in enforcement (Art 14b para. 4 B-VG)
In the case of federal laws that entrust federal authorities with the execution of matters that do not fall under Art 102 (2) B-VG (Art 102 (1) B-VG)
in the case of federal laws that set up their own federal authorities for matters other than those specified in (Art 102 para. 2 B-VG) (Art 102 para. 4 B-VG)
in the case of federal laws, which give the administrative courts the competence to decide on complaints about illegality of a simple conduct of an administrative authority in enforcement of the law, as far as it concerns matters of the not direct federal administration or the state administration (Art. 130 Abs. 2 B-VG)
in the case of federal laws that transfer the powers of the federal administrative courts to the administrative courts of the federal states or the powers of the administrative courts of the federal states to the federal administrative courts (Art. 131 para. 2 B-VG)
in the case of federal laws that provide that the administrative courts of the states have to decide through senates or with the participation of expert lay judges (Art. 135 para. 1 B-VG)

Every governor has eight weeks from receipt of the law to inform the Chancellor that the state's approval will be refused. If this period expires, the consent is deemed to have been given; it can also be expressly granted before the deadline has expired.

Referendum

After it has been dealt with in the Federal Council , but before it is notarized by the Federal President, the legislative resolution must be subjected to a referendum (Art 43 B-VG):

in the case of an overall amendment to the Federal Constitution ,
in the case of a partial amendment to the Federal Constitution, if one third of the members of the National or Federal Council so request,
in the case of a simple federal law, if the National Council so decides or the majority of the members of the National Council so request.

The referendum is ordered by the Federal President on the proposal of the Federal Government (Art 67 para. 1 B-VG) (Art 46 para. 1 B-VG.)

Signature of the Federal President

If the aforementioned legislative path has been taken, the Federal President is obliged, according to the legal opinion prevailing in Austria, to confirm the constitutional implementation of the law by his signature (Art. 47 B-VG). He may only refuse this if the legislative process has not been complied with ( formally unconstitutional ) or if the content is obviously grossly unconstitutional ( materially unconstitutional ).

The extent to which a refusal to sign on suspicion of material unconstitutionality is permissible has long been controversial. The more recent teaching, however, assumes that the federal presidents have a restricted right of examination. However, the refusal to sign for unjustified reasons or for political, non-legal concerns could lead to an indictment of the Federal President before the Constitutional Court (Art. 142 para. 2 lit. a B-VG). (To date, this constitutional rule has never been applied.)

The authentication of the law by the Federal President is to be countersigned by the Federal Chancellor (counter-signature) in accordance with Art. 47 Para. 3 B-VG .

Entry into force of the law

Now the Federal Chancellor has to announce the notarized federal law in the Federal Law Gazette for the Republic of Austria . A deadline for this is not specified in the Federal Constitutional Act. Should the Federal Chancellor fail to do so, the Federal President could dismiss him at any time.

According to Art. 49 B-VG, a law comes into force at the end of the day on which it is announced in the Federal Law Gazette, if no other date has been specified in the law. Depending on the complexity of the legal regulation, there must be a sufficiently long period between the announcement and the entry into force ( legislative vacancy ).

The law can also stipulate retroactive entry into force. Under certain circumstances, this is not unconstitutional and only happens in exceptional cases. In particular, it is not permissible to stipulate or tighten penal provisions relating to actions or omissions before the law came into force. Here the old principle Nulla poena sine lege works , ie the criminal liability of an act must have already existed when this act was taken.

Federal laws apply to the entire federal territory, unless otherwise specified. After proper promulgation of a law can , as in 1812 the rule since the General Civil Law (ABGB), no one excuse the fact that it is the same not known sey ( § 2 Civil Code). However, this does not apply unreservedly , especially in criminal law ( Section 9 StGB).

State legislation

According to Art. 95 Para. 1 B-VG, the legislation of the Länder is exercised by the Landtag . A one-chamber system is therefore mandatory. However, elements of direct democracy are permitted and have been introduced by most countries. The further structuring of the legislative process is left to the state constitutions or the state parliament's rules of procedure. In principle, government bills as well as legislative initiatives by members of parliament are possible in all countries - as at the federal level. However, legislative proposals from the government also predominate at the state level.

Correlating to the Bundesrat's possibility of objection in the federal legislative procedure, the Federal Government had a right of objection to state laws; this was repealed with effect from June 30, 2012 as part of the 2012 amendment to the administrative jurisdiction . However, the state parliaments were usually able to overcome such objections with persistence resolutions. An exception were tax laws, in which the right of objection was not abolished and in which the objection of the Federal Government can be confirmed by a joint committee of the National Council and the Federal Council against the insistence of the Landtag ( Section 9 Financial Constitutional Law ).

According to Art. 97 Para. 1 B-VG, state laws are to be announced by the governor in the state law gazette. Since federal law does not violate state law in Austria , the Constitutional Court alone decides on the validity of state laws in the course of judicial review.

literature

Anton Pelinka : Legislation in the Austrian political system . In: Wolfgang Ismayr (Ed.): Legislation in Western Europe. EU countries and the European Union. Wiesbaden: VS Verlag für Sozialwissenschaften 2008, pp. 431–461.

Individual evidence

↑ General Glossary B. Accessed January 23, 2019 .

↑ Circular Constitutional Service ( Memento of the original dated February 7, 2009 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2
^ Stephan Eberlein: "Public participation in the legislative process" . 2015, urn : nbn: at: at-ubl: 1-3489 .
↑ General Glossary A. Accessed January 23, 2019 .
↑ Federal Law Gazette I No. 51/2012 : Art. 42 a B-VG in the version of the BVG of June 5, 2012
↑ Text on Art. 98 B-VG and notice of repeal in the legal information system of the Federal Chancellery

Web links

The path of a federal law on parlament.gv.at

[1] General Glossary B. Accessed January 23, 2019 .