Austria

III - Changes to Constitutional Law

Nature national instruments     
III.1
What is the character of the legal instruments adopted at national level to implement Euro-crisis law (constitutional amendment, organic laws, ordinary legislation, etc)?

The relevant treaties were approved through standard ratification process; other measures have been implemented through ordinary laws. A constitutional amendment was necessary in order to guarantee the participation rights of the parliament in the ESM (see question VIII.6).

Constitutional amendment     
III.2 
Have there been any constitutional amendments in response to the Euro-crisis or related to Euro-crisis law? Or have any amendments been proposed?

See question VIII.6 for the ESM related amendment. For the debt ceiling or balanced budget rule, the governing parties tried to achieve a constitutional-amending majority but failed. The balanced budget rule does not stand in constitutional rank (see question IX.5).

Constitutional context
III.3
If national constitutional law already contained relevant elements, such as a balanced budget rule or independent budgetary councils, before the crisis that are now part of Euro-crisis law, what is the background of these rules?

The balanced budget rule (based on the German model) was introduced in Austria in late 2011 (see question IX.5). The background was the overall crisis, the fear of losing the triple A rating. It was also part of the Austrian measures made in response to the excessive deficit procedure that had been launched against Austria in 2009.[1]

Purpose constitutional amendment 
III.4
What is the purpose of the constitutional amendment and what is its position in the constitution?

Austria’s constitution is particular in its form because it is not entirely contained in one “constitutional document”. There is such a “constitutional document”, the Bundes-Verfassungsgesetz (B-VG), but there also other laws of constitutional rank, Bundesverfassungsgesetze (BVG) and there is even the possibility of passing single norms of one law as “constitutional norms” or “norms of constitutional rank” (Verfassungsbestimmungen). There is no hierarchical difference between these different constitutional provisions; all stand on the same level in the Kelsenian pyramid, above them there are only the basic principles of the constitution[2]. Furthermore, until 2007, treaties or single provisions from treaties could be “lifted into constitutional rank”. Although this was abolished, several old treaties still stand in constitutional rank. The same goes for treaties between the federation and the provinces. Because of this, laws in constitutional rank and therefore hierarchically superior laws can be found in many different places. A distinction has to be therefore made also between “material constitutional law” and “formal constitutional law”. In order to pass a law in constitutional rank, at least half of the members of the National Council need to be present and at least 2/3 of those have to vote for it. The same goes for the Federal Council whenever competences of the provinces (Länder) are touched. The purpose of a constitutional “amendment” or a completion of the constitution by passing new provisions in “constitutional rank” is therefore to make them hierarchically superior to ordinary laws. Like this, ordinary laws need to be amended accordingly and can be lifted by the constitutional court if they are not. Additionally, provisions in constitutional rank cannot be changed as easily. There are, however, different degrees of “constitutional amendments” and there are stricter rules for cases in which an amendment would amount to an amendment of the “entire constitution” (Gesamtänderung).[3] For such a Gesamtänderung, a referendum would generally be necessary. The accession to the EU in 1995 for instance amounted to such a “Gesamtänderung”. In the debates of the crisis measures, the FPÖ had brought the argument that the signature of the ESM treaty and its accompanying laws amounted to such a Gesamtänderung. The governing parties and the Greens dismissed such a request. [4]

Relationship with EU law        
III.5
Is the constitutional amendment seen as changing the relationship between national and European constitutional law?

At present it does not appear that the constitutional amendment has changed the relationship between national and European constitutional law.

Organic law      
III.6
Have there been changes to organic laws or other types of legislation that are of a different nature or level than ordinary legislation, in relation to Euro-crisis law or the budgetary process?

No.

Constitutional amendment and ordinary law       
III.7
If ordinary legislation was adopted in conjunction with a constitutional amendment, what is the relationship between the two?

The ordinary legislation specifies what is outlined in the constitutional amendment (see question VIII.6).

Perception source of legal change   
III.8
In the public and political discussions on the adoption of ordinary legislation, what was the perception on the appropriate legal framework? Was the ordinary legislation seen as implementing national constitutional law, or Euro-crisis law?

In the public discussion, the question whether European law and the relevant treaty law is transposed by laws in constitutional rank or “ordinary laws” is almost only relevant in terms durability: As explained in question III.4, a law in constitutional rank is harder to amend. Which law gets to be passed in constitutional rank is a matter of political consensus, or, under the relevant government, a question of whether the coalition parties can get a small party on board in order to get a 2/3 majority in the National Council.

The overall legislative package in response to the Eurocrisis was, however, rather understood as implementing European provisions, no matter whether that happened with laws in constitutional rank or not.

Miscellaneous
III.9
What other information is relevant with regard to Austria and to changes to national (constitutional) law?

No other relevant information.

[1]              Excessive Deficit Procedure Austria 2009-2010, summarized at http://ec.europa.eu/economy_finance/economic_governance/sgp/deficit/countries/austria_en.htm

[2]              The principles are, briefly put, democracy, federalism, republicanism, rule of law, separation of powers & liberalism, for details see Öhlinger, 2009, pp. 54-62.

[3]              Öhlinger, 2009, pp. 25-30.

[4]              Press release on parts of the National Council Session No. 164 from July 4, 2012. http://www.parlament.gv.at/PAKT/PR/JAHR_2012/PK0584/.