Austria

V - 136(3) TFEU

At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”          
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.

Negotiation
V.1
What political/legal difficulties
did Austria encounter in the negotiation of the amendment of article 136 TFEU?

Overall, the main position of the government (see question IV.1 for details) was favoring the introduction of Art. 136 (3) TFEU (and the ESM) (see also question VIII.1 and question I.1). From the opposition parties, the Greens were siding with the government whereas the far-right parties FPÖ and BZÖ were strongly opposing it.[1] The fact that the Greens were siding with the government was essential because a 2/3 majority (see question V.2) was necessary and could not be reached only by the governing parties.

Approval
V.2
How has the 136 TFEU Treaty amendment been approved in Austria and on what legal basis/argumentation?

Generally, treaties are ratified through signature of the Federal President (Art. 65 (1) B-VG). Political treaties and treaties leading to the amendment or completion of laws need to be approved by the National Council prior to the ratification (Art. 50 (1) 1 B-VG). This approval passes as ‘decision’ and not as ‘law’. If the treaty in question touches competences of the provinces (Länder), it also has to be approved by the Federal Council.[2] Treaties that amend or complete the constitution need to be approved by qualified majorities (in both chambers, at least half of the deputies have to be present and have to reach a 2/3 majority, Art. 44 (1) and (2) B-VG). Furthermore, a treaty amending the foundations of the European Union would also need approval by the higher majorities in the National and in the Federal Council (Art. 50 (1) 2 and Art. 50 (4) B-VG). The Federal Chancellor (Head of Government) has to publish the treaty after its ratification through the Federal President in the Federal Law Gazette. The Federal President, however, does not have the right to review the substance of the approval, as opposed to Germany (see also the discussion of the ESM case at the constitutional court in Annex I.1), his sole task is to check the procedure of how in this case the decision or generally a law came about. From the day following the publication, the treaty is considered in force – unless specified differently in the treaty, as it is the case here in Art. 48 TESM.

According to Art. 23i (4) B-VG[3] decisions of the European Council or the Council of the European Union that enter into force only after the approval by the single Member States have to approved according to Art. 50 (4) B-VG.: The approval comes in the form of a “decision”. Then the decision of the National Council and the Federal Council is then signed by the president, counter-signed by the Chancellor and published in the Federal Official Gazette. Under certain circumstances, the approval of treaties can be reviewed by the Constitutional Court.

For details on the general treaty ratification procedure in Austria, please see question VIII.2, for details on constitutional review of treaties see Annex I.1 on the Constitutional Court decision on the ESM treaty.

The Constitutional Committee of the National Council recommended in its report the approval of the European Council Decision 2011/199/EU.[4] The National Council voted on July 4, 2012 with 125 votes for and 52 against it[5]. The Federal Council voted on July 6, 2012, with 43 votes for and 12 against it.[6] It was signed by the Federal President and the European Council was notified about Austria’s approval on July 30, 2012. It was further published in the Federal Law Gazette on May 13, 2013.[7]

Ratification difficulties           
V.3
What political/legal difficulties
did Austria encounter during the ratification of the 136 TFEU Treaty amendment?

The main issues debated were connected to the debate of the TESM. The pros argued by SPÖ, ÖVP and Greens were that Austria needed a stable EMU and a stable Euro for its export-oriented economy, that letting Eurozone members default was not an option. A permanent European stabilization mechanism would be the only way of dealing with the crisis. Specific issues related to the Art. 136 (3) TFEU and to the simplified treaty revision procedure were not raised, not even at the expert hearing that had been convened at the National Council on June 28, 2012 upon initiative of the Constitutional Committee to debate the ESM (see question VIII.1). The counter-arguments of the FPÖ and the BZÖ were in particular the criticism of the establishment of a ‘transfer union’, the reproach that Austrian taxpayer money was going to be wasted and the loss of budgetary sovereignty. For the FPÖ, the budgetary sovereignty issue remains, however, much more of a problem for the Fiscal Compact.

Case law        
V.4

Is
there a (constitutional) court judgment in Austria on the 136 TFEU Treaty amendment?

 There is a constitutional court judgment on the ESM from March 16, 2013.[8] References to Art. 136 (3) TFEU do exist in that judgment but since it was not yet in force at the time when the judgment was rendered, they are rather minor. Please see Annex I.1 for a detailed analysis of the case. Here, it remains to be mentioned that the applicant invoked some “EU law questions” about the legality of the TESM, in particular the fact that it had been signed and ratified without a proper basis in EU law because Art. 136 (3) TFEU was not yet in force at the time of its signature. The applicant argued that the TESM collides with Art. 125 TFEU. Therefore, the National Council should have treated the TESM as a treaty that amends EU law. For a ratification of such a treaty, higher majorities in the National and in the Federal Council would have been necessary (Art. 50 (4) B-VG). Instead, the TESM had been approved by simple majorities.[9] For details on this, see question VIII.2. The court, however, says that in as far as the applicant invokes some “EU-law-questions”, it is not within the court’s competence to render decisions about them.

Miscellaneous
V.5
What other information is relevant with regard Austria and the 136 TFEU Treaty amendment?

No other relevant information.

 

[1]              Summary of the Positions in the  meeting of the Constitutional Committee of the National Council from July 2, 2012, available at: http://www.parlament.gv.at/PAKT/PR/JAHR_2012/PK0574/; summary of the debate in the Plenary Session No. 164 of the National Council from July 4, 2012 (when the amendment and the TESM were approved), available at: http://www.parlament.gv.at/PAKT/PR/JAHR_2012/PK0587/; Stenographic Protocol of that Plenary Session of the National Council No. 164, XXIV. Legislative Period, at http://www.parlament.gv.at/PAKT/VHG/XXIV/NRSITZ/NRSITZ_00164/fname_276567.pdf. 

[2]              Öhlinger, Verfassungsrecht, 2005, p. 78. The Federal Council is the chamber of the parliament that consists of representatives of the nine Länder.

[3]              Supra section IV, note 7. 

[4]              Final Report of the Constitutional Committee no. 1877 on government’s proposition no. 1716 regarding the decision of the European Council to amend Art. 136 (3) TFEU from July 2, 2012,  available at: http://www.parlament.gv.at/PAKT/VHG/XXIV/I/I_01877/fname_258128.pdf

[5]              Decision of the National Council to approve the amendment of Art. 136 TFEU from July 4, 2012, at http://www.parlament.gv.at/PAKT/VHG/XXIV/BSE/BSE_00001/fname_258886.pdf

[6]              Report of the Committee for Constitution and Federalism from July 5, 2012, on the proposed amendment of Art. 136 TFEU at http://www.parlament.gv.at/PAKT/VHG/BR/I-BR/I-BR_08755/fname_258959.pdf and the decision of the Federal Council on the same issue from July 6, 2012, at: http://www.parlament.gv.at/PAKT/VHG/XXIV/BSE/BSE_00001/fname_259208.pdf.

[7]              Approval of the amendment of Art. 136 TFEU as published in the Federal Law Gazette, BGBl III 132/2013, at http://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2013_III_132/BGBLA_2013_III_132.pdf.

[8]              Österreichischer Verfassungsgerichtshof (VfGH), Decision SV 2/12-18 from March 16, 2013, at: http://www.vfgh.gv.at/cms/vfgh-site/attachments/1/0/8/CH0003/CMS1364972071410/esm_sv2-18.12_endg.pdf; Press release in English at: http://www.vfgh.gv.at/cms/vfgh-site/attachments/3/4/1/CH0003/CMS1364972214030/esm_presseinformation_english.pdf

[9]              Supra section IV, note 13, pp. 11-12.