Constitutional Service
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| State level | Federation | ||
| position | Section of the Federal Chancellery | ||
| founding | 1918 (as legislative service ; 1910 kk state law department ) | ||
| Headquarters | Vienna 7 , Museumstraße 7, offices: Vienna 8 , Wickenburggasse 8-10 | ||
| management | Albert Posch | ||
| Website | help.gv.at | ||
The Constitutional Service ( VD ), based in Vienna, is a section of the Federal Chancellery in Austria . His tasks essentially include the legal representation of the Federal Government before the Constitutional Court and the Republic of Austria before the ECJ and the European Court of Human Rights , numerous matters relating to third-party and self-law , as well as the preparation of legal opinions in a wide variety of legal areas.
history
In contrast to the heads of government in other states, in Austria the Federal Chancellor was also the member of the government responsible for the Federal Constitution , that is to say, “constitutional minister”. Historically, this can be explained by the fact that the Presidium of the Council of Ministers was responsible for constitutional questions and constitutional law in the monarchy.
A forerunner of the constitutional service already existed in the monarchy . 1910–1918 the constitutional department existed , which was set up in the Imperial and Royal Presidium of the Council of Ministers . The origins of today's constitutional service go back to the beginnings of the First Republic . On December 11, 1918, a legislative service was established in the State Chancellery by decree . The tasks were determined by the law of December 19, 1918, StGBl 139. According to Section 12 (1) leg cit, the State Chancellery was responsible for preparing the constitutional submissions of the State Council . In addition, pursuant to Section 11 leg cit , the State Chancellor had to work towards uniform cooperation between all state offices and the safeguarding of the interests common to all branches of administration.
According to § 7 ÜG of October 1, 1920, the tasks of the legislative service were transferred to the Federal Chancellery. The organization of the legislative service in its existing form was also taken over by the Federal Chancellery. With the direct constitutional statutory ordinance on the management of the business of the highest federal administration in 1923, the duties of the Federal Chancellor also included the constitutional conduct of federal government affairs, including the domestic treatment of state treaties and the statement on state legislation, the exercise of uniformity the activities of the federal ministries that prepare legislation and prepare the constitutional drafts of the federal government . These provisions, which justify the competence of the constitutional service, applied - unaffected by the entry into force of the federal law on the management of the highest level of business of the federal administration in 1946 - until the entry into force of the federal ministries law in 1973. The central tasks of the constitutional service have remained unchanged to this day.
Only in matters that were assigned to federal ministers in the Federal Chancellery was there a technical subordination to them. For example, the constitutional service, which is responsible for federal and state affairs, was technically subordinate to federalism matters in the years when a federal minister was established in the federal chancellery. The same applied to media affairs with regard to the Federal Minister for Women, Media and Regional Policy in the years 2007–2008. Insofar as certain agendas that fall within the scope of the constitutional service are assigned to state secretaries in the Federal Chancellery, the direct subordination to the Federal Chancellor is mediated by these state secretaries. This means that the State Secretary has the authority to issue instructions in these matters .
After the accession of the Federal Government Kurz I , constitutional affairs and thus also the constitutional service moved from the Federal Chancellery to the Federal Ministry for the Constitution, Reforms, Deregulation and Justice (BMVRDJ). This also involved a local relocation, since February 2018 the constitutional service no longer has its offices in the Federal Chancellery, but in the adjacent building of the BMVRDJ in Vienna 8, Wickenburggasse 8-10. Since January 28, 2020 ( Federal Law Gazette I No. 8/2020 ), the constitutional service has again belonged to the Federal Chancellery.
organization
Organizational involvement
The constitutional service is set up as a section of the Federal Chancellery.
Departments, units and responsibilities
- Team assistance of Section V.
- Department V / 1: Constitutional Legislation and Administrative Procedures
- Department V / 2: General Legistics, Legal Information, State Affairs, Administrative Organization Law
- Section V / 2 / a: Announcements and Legal Information (RIS)
- Section V / 2 / b: State affairs
- Department V / 3: Media, Information Society; Party law, party and party academy funding
- Section V / 3 / a: Office of the Independent Party Transparency Senate
- Unit V / 3 / b: Information Society
- Department V / 4: Commercial Law Matters
- Department V / 5: Social affairs, justice and home affairs and other administrative matters
- Unit V / 5 / a: Home Affairs, Justice
- Unit V / 5 / b: Social
- Department V / 6: EU procedures
- Unit V / 6 / a: Infringement proceedings and directives implementation
- Department V / 7: European and international law, human rights protection
- Unit V / 7 / a: International human rights protection, ECHR complaints and other matters
This list follows the business division of the Federal Chancellery of March 1, 2020. Other tasks, such as legal informatics and business law matters, have been handled by the Federal Ministry for Digitization and Business Location since 2018 . The matters of data protection and public procurement law remained with the Federal Ministry of Justice after January 28, 2020 and are therefore no longer within the scope of the Constitutional Service.
tasks
The tasks of the constitutional service in terms of content are very diverse; In the main, they can be divided into three fields of work. The constitutional service is a lawyer, appraiser and lawyer (litigator). In addition, coordination tasks are also performed between the federal ministries, between the federal administration and parliament, but also between the federal administration and the judiciary under public law. In this respect, the constitutional service has to fulfill a specific role in all three state functions .
The constitutional service as a legislator
An essential function of the constitutional service is its activity in the preparation of laws on certain matters. First of all, there is the entire constitutional legislature, which is a particularly broad field in Austria due to the extraordinary fragmentation of constitutional law and which also affects all other areas of law. This also applies to legal matters relating to administrative proceedings , administrative criminal law and administrative enforcement , as well as data protection , legal adjustments and the Federal Ministries Act.
On the other hand, the Constitutional Service takes care of the legislature in certain delimited matters that do not affect other matters. Mention should be made here of public procurement law , the right to support the press , the right to support political parties and party academies, matters relating to public and private broadcasting, as well as extrajudicial media law, and matters relating to official and organ liability . In all these matters, it is the constitutional service itself that has to work out appropriate draft bills on behalf of politicians and then takes care of the legislative process (self-legislating).
The constitutional service as an expert
The first to be mentioned here is the work of an expert in the procedures for federal legislation ; Added to this is the involvement of the constitutional service in the process of state legislation and, finally, the assessment cases that are brought to the constitutional service on the basis of applicable law must be named.
Assessment of the draft laws and regulations of the federal ministries
The Constitutional Service appraises all draft laws and ordinances that the relevant departments send for appraisal and issues an opinion on them. The assessment criteria for this assessment are compliance with constitutional law on the one hand, but also legal aspects on the other. From a legal point of view, there is a not inconsiderable set of rules which the federal ministries must observe and which form the basis for the legal review. In addition, suggestions for improving the legal language and legal system are given in a variety of ways. As provided by the Federal Ministries Act, this is intended to maintain the uniformity of the federal ministries' activities in preparation for federal legislation.
In principle, it should be noted that the opinions of the Constitutional Service are non-binding. The only way to insist that the changes suggested by the Constitutional Service be observed would be for the Chancellor to refuse to approve the decision- making process by the Council of Ministers , which, however, rarely happens in practice.
Assessment in the process of state legislation
When integrating the constitutional service into the state legislative process , a distinction must be made between two cases; on the one hand, the appraisal of draft bills and, on the other hand, the examination of all legislative resolutions of the state parliaments , which are to be announced by the governor to the federal chancellery immediately after the state parliament has passed the resolution .
The appraisal procedure for federal state bills is optional, i.e. each federal state decides for itself whether to submit bills. In addition to legal questions, the focus is on examining constitutional problems, especially if this involves interfering with federal competencies . In contrast to this, all legislative resolutions of the state parliaments must be announced by the governor to the federal chancellery immediately after the resolution has been passed before they are announced. In these proceedings, the Constitutional Service first deals with those federal ministries whose sphere of activity could be affected in the abstract and whose statements are based on the Council of Ministers lecture to be prepared by the Constitutional Service.
Other expert work by the constitutional service
The expert activity on individual questions takes up a large part; these concern the area of the entire constitutional law but also all simple legal matters for which the constitutional service is responsible in the self-law. The Constitutional Service prepares statements for the Federal Chancellor, for all federal authorities, all state authorities, all organs of self-government, but also for parliament or the courts. Questions that come from private individuals and especially from lawyers are, apart from individual cases, not dealt with by the constitutional service.
The constitutional service as a lawyer (litigator)
The Constitutional Service represents the Federal Government in law review procedures and in competence determination procedures before the Constitutional Court . Each department is responsible for the matters assigned to it. The representation activities primarily include the preparation of the written submissions and the representation of the Federal Government in the oral hearing. All this is done in cooperation and coordination with the affected specialist department . In principle, the constitutional service can only present what it is authorized to do by the federal government. In hopeless cases, no opinion is usually given.
In addition, the Constitutional Service represents the Republic of Austria as deputy legal representative in proceedings on individual complaints before the European Court of Human Rights in Strasbourg . The content of the statements and applications required in these proceedings are prepared by the constitutional service with the involvement of the departments concerned and then forwarded to the court by the Federal Ministry for European and International Affairs . Either the representative of the Federal Ministry for European and International Affairs or the deputy representative of the Constitutional Service appear in the oral proceedings.
Finally, the constitutional service is responsible for the legal coordination of the domestic position as well as the representation of Austria in all proceedings before the European Commission , the Court of Justice of the European Communities and the Court of Justice of the European Union against Austria. In preliminary ruling proceedings and in all other proceedings before the European Court of Justice and the European Court of Justice, the Republic of Austria regularly issues an opinion that is drawn up by the Constitutional Service itself or in coordination with other departments concerned. In the preliminary phase of infringement proceedings , the Constitutional Service also coordinates and represents the Austrian position vis-à-vis the European Commission.
Other tasks of the constitutional service
Executive activity in the narrower sense
The constitutional service only carries out an executive activity to a small extent in the sense of issuing notices and other decisions in individual cases or preparing such.
Coordination and service activities of the constitutional service
An essential function of the constitutional service is its coordinating activity, which often takes place in the run-up to formal assessments and statements. At the federal level, the constitutional service is often involved in inter-ministerial discussions or in certain projects of individual federal ministries through informal contact or formal involvement as an expert. In parliament , such involvement takes place in addition to informal contact through summons as an expert to certain committees. The Head of the Constitutional Service is also a permanent member of the Governor's Conference and the State Office Director's Conference. The Constitutional Service is also responsible for coordinating human rights issues and matters relating to EU legal reform.
Official seat
Since 2018, the constitutional service has been housed in the annex building of the Ministry of Justice at Wickenburggasse 8-10 in Vienna 8th.
literature
- Seidl-Hohenveldern, The Constitutional Service , ÖJZ 1951, 160
- Weiler, The Constitutional Service of the Federal Chancellery , ÖJZ 1962, 281 and 314
- Holzinger, Function and Mode of Operation of the Constitutional Service in the Federal Chancellery , in Heinz Schäffer / Triffterer (eds.), Rationalization of Legislation , Jürgen Rödig Memorial Symposium (1984) 314.
- Holzinger, The Constitutional Service of the Republic of Austria. Lecture given at the Europa-Institut of the Saarland University in Saarbrücken on May 12, 1989. Vol. 180 of the lectures and reports from the Europa-Institut of the Saarland University (1989).
- Lienbacher, The Constitutional Service in the Federal Chancellery , in Akyürek / Baumgartner / Jahnel / Lienbacher / Stolzlechner (eds.), State and Law in a European Perspective, Festschrift für Heinz Schäffer (2006) 427–455.
Web links
Individual evidence
- ↑ Established for compensation matters. Compare Adam Wandruszka, Peter Urbanitsch: The Habsburg Monarchy 1848-1918: Administration and legal system . Volume 2 of the Austrian Academy of Sciences: The Habsburg Monarchy 1848-1918, 2nd edition, Verlag der Österreichische Akademie der Wissenschaften, Vienna 1975, ISBN 978-370010081-2 , p. 110
- ↑ help.gv.at address of the Constitutional Service 2018. (accessed December 31, 2018).
- ↑ Business division of the Federal Chancellery from March 1, 2020. Retrieved on March 15, 2020 .