A republication of legal provisions takes place in Austria according to Art 49a B-VG (or until 1981 according to the Republication Act ) and this only allows existing law to be re-established, but not to change its content, so-called “ norm identity ” (see e.g. on this § 2 WVG).
If legal sources become confusing due to numerous amendments (e.g. the ASVG ) , a new legal norm can be made binding in Austria in a simplified procedure, without having to go the long way through parliamentary legislation , from superfluous old files and incorporating all amendments published (re-published). This is where re-pronouncement also differs from codification , which usually requires the normal legislative procedure.
The legal basis for the republication of legal provisions in Austria is Art 49a B-VG. Until the constitutional amendment in 1981, there was a separate Republication Act (WVG) with constitutional status.
Authorization and Procedure
In Art 49a B-VG it is regulated that the Federal Chancellor is authorized together with the responsible Federal Minister in a simplified procedure,
- Federal laws and “simple” federal constitutional laws (but not the federal constitution itself), and
- State treaties announced in the Federal Law Gazette (BGBl)
in their current version to be published in the Federal Law Gazette (Art 49a Para. 1 B-VG).
The authorization for republication can also be provided for in the state laws of the federal states for their legal status (state autonomy, formerly Section 9 WVG) and must then be implemented in accordance with their specifications.
Content of the announcement with the re-announcement
In the announcement of the re-pronouncement, according to Art 49a para. 2 B-VG:
- outdated terminological phrases are corrected and outdated spellings are adapted to the new spelling;
- References to other legal provisions that no longer correspond to the state of the law, as well as other inconsistencies, are corrected;
- Provisions that have been repealed by later legal provisions or have otherwise become irrelevant are found to be no longer valid;
- Short titles and letter abbreviations for the title are specified;
- the designations of the articles, paragraphs, paragraphs and the like are changed accordingly in the event of failure or installation of individual provisions and references to them within the text of the legal provision are corrected accordingly;
- Transitional provisions as well as earlier versions of the federal law (State Treaty) that are still to be applied are summarized, specifying their scope.
Legal consequence of the announcement
The announcement with the re-announcement is basically binding on all courts and administrative authorities after the date of publication, unless otherwise expressly stated in the announcement. Announcements of re-announcements have no retroactive effect.
The previous law remains in the republic. The legal effect of the announcement of the republication of a law is therefore only a preliminary derogation .
Examination of the constitutionality of the announcement
Therefore, the examination by the Constitutional Court is carried out as part of the ordinance examination (Art 139 B-VG). If a decision by the Austrian Constitutional Court subsequently determines that the announced republication by the federal government or one of the federal states was not lawful (Art 139a B-VG in conjunction with Art 49a B-VG), the original version of the law applies with all previous amendments fully in force again. However, up to this point in time and the legal consequences stipulated therein (e.g. repeal of the re-publication at a certain point in time), the re-publication is binding on all courts and administrative authorities.
Problem of re-announcement
With this legal act of an administrative authority, laws and simple constitutional laws in Austria can be changed quickly and only with subsequent control by the Constitutional Court. As a result, the entire administration and jurisdiction is bound to the republished text of the laws for the period of validity of this regulation. In crisis situations, such an authorization to re-announce may lead to the fact that essential parts of the Austrian legal system are invalid or changed and these changes also become binding without the possibility of correction by elected political decision-makers. Given the average duration of proceedings before the Constitutional Court of 143 days or if the judges of the Constitutional Court are prevented from meeting due to political pressure, there is only the rule of law to revoke such a regulation via the Austrian National Council . However, whether and to what extent Parliament can or will carry out such a lifting in a crisis situation is open.
- Adamovich / Funk / Holzinger, Austrian Constitutional Law , 1st edition, Volume 2, margin no. 27.124 ff., Vienna 1998, Verlag Österreich, ISBN 3-211-83185-1 .
- Walter Antoniolli ; Friedrich Koja , General Administrative Law: Teaching and manual for study and practice , 3rd edition, p. 220 f., Vienna 1996, Manz Verlag, ISBN 3-214-04657-8 .
- Theo Öhlinger , Constitutional Law , 3rd edition, pp. 187 f and p. 413, Vienna 1997 WUV-Universitätsverlag, ISBN 3-85114-319-1 .
- Robert Walter ; Heinz Mayer , Outline of Austrian Federal Constitutional Law , 9th edition, margin no.119 ff, Vienna 2000, Manz Verlag, ISBN 3-214-04945-3 .
- Legal information system of the federal government (Austria).
- Federal Law Gazette No. 114/1947 : Republication Act .
- Federal Constitutional Act of June 12, 1947 on the Republication of Legal Provisions - Republication Act - WVG, ÖBGBl. 114/1947.
- In § 3 of the WVG was still standardized: " The re-published legal provisions are to be brought to the attention of the National Council immediately by the Federal Chancellery ."
- If even one amendment is missing, the announcement of the re-pronouncement is in any case illegal.
- Whether this provision of Art 49a B-VG really includes “simple” federal constitutional laws is disputed.
- See in detail § 5 of the repealed WVG and Art 49a Paragraph 3 in the version up to December 31, 2003.
- See the decision of the Austrian Constitutional Court: VfSlg 9597.
- See Activity Report 2016 of the Constitutional Court.