Fundamental State Order of Austria
The Republic of Austria is a democratic, republican, and federal state. Its powers, composition, and relationship to each other are defined by the Constitution, the central constitutional document being the Federal Constitutional Law (B-VG).
Democracy means that all state action must ultimately be based on the will of the people. The people are the supreme source of political legitimacy. All organs of the state—be it the government, parliament, or administration—therefore act only directly or indirectly on the basis of the mandate derived from the people. This legitimacy can be established directly, for example through elections, or indirectly, by elected bodies appointing or commissioning other bodies. In this way, the entire state system in a democratic order remains committed to the principle that power emanates from the people.
Republic means that the head of state is determined not by hereditary succession but by election. In Austria, this is the Federal President, who is the head of state of the republic and is elected at regular intervals by the federal people. The republican form of government thus contrasts with the monarchy and emphasizes the responsibility of state officials to the people and not to a dynastic order.
Finally, federalism means that the state consists of several member states – in Austria, these are the federal states. These are not mere administrative units, but have their own powers, particularly in legislation and enforcement in certain areas. This also means that the people of the state elect their own representatives – the state parliament.
State power is exercised by specific organs, which are provided for and regulated in detail in the Federal Constitution. A central organizational principle of Austrian constitutional law is the separation of powers. It serves to divide state power among different bodies, enable mutual control, and prevent abuse of power. The classic division distinguishes between legislation, executive power, and jurisdiction.
Legislation refers to the enactment of general, abstract norms, i.e., the creation of law. In Austria, legislation is exercised at both levels: at the federal level by the National Council and the Federal Council, and at the state level by the state parliaments. The National Council is the central organ of democratic legislation and is directly elected by the federal people. The Federal Council represents the states and participates in federal legislation, although its influence is limited. The state parliaments are also elected directly by the people of the respective state.
The administration forms an essential part of the executive branch. It is responsible for implementing and enforcing laws and acts on the basis of legal requirements. The administration is divided into supreme bodies, subordinate authorities, and bodies with coercive powers.
At the federal level, the supreme administrative bodies include, in particular, the Federal President, the Federal Government, and the federal ministries. At the state level, there are state governments and state governors. These supreme administrative bodies bear political responsibility for administrative actions and are controlled by the legislature. Parliament can withdraw its confidence in them through votes of no confidence, which means that they can ultimately be monitored by the legislature and held politically accountable.
Below the supreme bodies are the subordinate administrative authorities, such as the district administrative authorities. They are responsible for the concrete implementation of administrative tasks, such as the issuance of notices and regulations. These authorities are subject to hierarchical supervision by the higher administrative bodies and are bound by instructions, i.e., they must comply with the orders of their superior authorities.
In certain administrative matters, self-governing bodies, such as municipalities, also have decision-making powers, for example in building matters. These bodies exercise their administrative functions independently, but are supervised by the general state authorities.
Law enforcement agencies such as the police are responsible for the concrete exercise of coercive power, for example, to enforce administrative decisions or to maintain public order and safety. They act within the framework of the law and are also subject to administrative organization and control by the competent authorities.
The judiciary is part of the executive branch, but forms a separate, independent branch of government. Its task is to decide on the application of the law in specific cases and thus to safeguard the rule of law. In Austria, jurisdiction is divided into three branches: administrative jurisdiction, constitutional jurisdiction, and ordinary jurisdiction. Each of these jurisdictions fulfills a specific function in the system of separation of powers and ensures the control and enforcement of the law from different perspectives.
The federal and state administrative courts examine whether the administration has acted lawfully. They review decisions and measures taken by administrative authorities, for example in areas such as building law, trade law, or immigration law. Citizens can appeal to an administrative court if they feel that their rights have been violated by an official decision. At the top of the administrative court system is the Administrative Court (VwGH), which, as the highest court, decides on legal issues of fundamental importance and ensures that the administration complies with the law.
The ordinary courts are responsible for civil and criminal matters. Civil courts decide on disputes between private individuals or companies, for example, regarding contracts, property, or damages. Criminal courts rule on misdemeanors and crimes, thereby punishing violations of the legal system. At the top of the ordinary courts is the Supreme Court (OGH), which, as the highest court in civil and criminal matters, ensures the uniformity of case law and clarifies the interpretation of the law.
Constitutional jurisdiction protects the Austrian Federal Constitution and thus the fundamental rights of citizens. The Constitutional Court (VfGH) examines whether laws and regulations are in accordance with the constitution and can repeal unconstitutional norms. It also rules on complaints when someone claims that their constitutional rights have been violated. The VfGH thus monitors the constitutionality of state actions and is a central organ of legal protection in Austria.
Norms and hierarchical structure of the legal system
The legal system has a hierarchical structure. This concept is referred to as the hierarchical structure of the legal system. At the top are the fundamental principles of the Federal Constitution. These form the foundation of the entire legal system and stipulate that the fundamental pillars of the state can only be amended by referendum. These are the principles of democracy, republicanism, federalism, and the rule of law. There has only been one such referendum since 1995, when Austria joined the European Union (then the EC).
Constitutional law is subordinate to the fundamental principles of the Constitution. Although the Federal Constitutional Law is the central constitutional document, there are also individual constitutional laws, such as the Federal Constitutional Law for a Nuclear-Free Austria, or individual constitutional provisions in federal (non-constitutional or ordinary) laws. For a law or provision to become constitutional law, it requires a two-thirds majority in the National Council and an explicit designation of the norm as a “constitutional law” or “constitutional provision.”
Below constitutional law are simple federal laws, which must be consistent with the constitution in terms of content and form. At the same level are the state constitutions of the individual federal states, which specify the principles of the federal constitution. Below these are the simple state laws, which in turn must comply with the respective state constitution.
Below the laws are regulations. These are general norms that are issued by administrative authorities on the basis of legal authorization. They must not contradict the laws, but rather specify them in more detail. Regulations have a generally binding effect, but are subordinate to the legal basis. One level lower are individual administrative acts, such as notices, which regulate specific legal relationships. Finally, at the very bottom are mere acts of administration without normative effect, so-called real acts, such as the actual actions of an authority.
The hierarchy of these norms is not only of theoretical importance. Above all, it serves as a control mechanism: lower-ranking norms must comply with higher-ranking ones, otherwise they can be challenged or repealed. Regulations that contradict a law can be repealed by the courts in the course of judicial review. Laws that contradict the constitution can be repealed by the Constitutional Court. The hierarchical structure thus ensures a system of graduated validity in which the unity of the legal system is guaranteed by judicial review.
Compliance with the hierarchy of norms is the basis for legal certainty. Citizens and the administration should be able to rely on the legal system being structured in a consistent manner. At the same time, the hierarchy creates the possibility for constitutional law to actually develop its primacy. In Austria, this primacy is ensured by the judicial review of norms by the Constitutional Court, which measures both federal and state laws and regulations against the constitution.
Legislation
Legislation in Austria takes place at both the federal and state levels. This division results from the federal organization of the republic. The federal government has its own legislative bodies, as do the states. The central body responsible for federal legislation is the National Council, which is elected by the federal people and represents the democratically legitimized representation of the people. The Federal Council represents the states and participates in federal legislation, but its right of participation is limited. As a rule, it can only delay laws; the National Council can override a veto by the Federal Council with a simple majority. Only in a few, specially regulated cases, such as laws that affect the powers of the states, does the Federal Council have a genuine right of approval.
At the state level, legislation is enacted by the state parliaments. These are elected by the respective citizens of the state and exercise legislative power within the powers of the state.
The distribution of powers between the federal government and the states is determined by listing individual responsibilities in the Constitution (Articles 10 to 15 B-VG). A distinction is made between different types of powers. The federal government has exclusive legislative power in certain areas. These include criminal law, foreign policy, and federal finance. In other matters, the states have exclusive jurisdiction, such as in questions of local spatial planning or building law. Finally, there are areas in which the federal government enacts basic laws, while the states enact implementing laws and also enforce them. This model of basic and implementing legislation is a special feature of the Austrian federal state and leads to close interlinking between federal and state legislative activity.
Legislation formally follows a set procedure. Federal laws are enacted by resolution of the National Council. The Federal Council has a right of participation, where provided for, i.e., it can lodge an objection to the legislative resolution. The National Council can insist on the legislative resolution in such a case. In all cases, the law is then certified by the Federal President, countersigned by the Federal Chancellor, and published in the Federal Law Gazette. State laws are passed by the respective state parliament, certified by the governor, and officially published. Publication is the decisive act that makes laws generally binding. The laws are published free of charge at ris.bka.gv.at.
The European Union – institutions, legal acts, and fundamental freedoms
After a long period of economic and political rapprochement, Austria became a full member of the European Union (then still the EC) on January 1, 1995, together with Finland and Sweden. This accession marked a central step in the country's recent history and meant a far-reaching opening of the Austrian legal and economic area.
The European Union is an association of European states that aims at close economic, political, and legal cooperation. It is not a state in the traditional sense, but has its own institutions, legislative powers, and a distinct legal system that applies directly in the member states. Its legal foundations are laid down in the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). These are international treaties between the member states of the EU. The central idea is to promote integration, avoid conflicts, and create a single market without internal borders through common rules, institutions, and judicial control.
The European Union has several central institutions that perform different functions. The European Council consists of the heads of state and government of the member states, the President of the European Council, the President of the Commission, and the High Representative for Foreign Affairs and Security Policy. It sets the general political objectives and priorities, but has no legislative powers. The European Council provides strategic impetus and serves to coordinate between the member states.
The European Commission is the central executive body of the Union and sees itself as the “guardian of the treaties.” It is composed of a president and commissioners from all member states. Its main tasks are to monitor compliance with Union law, to initiate infringement proceedings against Member States if they violate Union law, and to submit legislative proposals. The Commission is the only institution with the right of initiative for Union legal acts and also performs executive functions, for example by adopting implementing measures or individual decisions.
The European Parliament is directly elected by the citizens of the Member States and thus represents the people of the Union. It has participatory rights in the legislative process, exercises control over the Commission, and has budgetary powers. Together with the Council of the European Union, it adopts most legal acts in the so-called ordinary legislative procedure. Under this procedure, the Commission submits a proposal, the Parliament adopts a position, the Council agrees or formulates amendments of its own, and in the event of a conflict, a conciliation procedure takes place.
The Council of the European Union, often referred to as the Council of Ministers, consists of the relevant ministers of the member states. Depending on the subject area, different Council configurations meet, for example, for economic and financial affairs, agriculture, or transport. Together with the Parliament, the Council is the central legislative body of the Union and adopts regulations and directives. It also coordinates the policies of the member states and acts as a forum for the coordination of national positions.
The European Court of Justice (ECJ), based in Luxembourg, is the highest court of the European Union. It is composed of judges from all member states. The ECJ reviews the legality of actions by the Union's institutions, rules on infringements by Member States, interprets Union law on referrals from national courts, and ensures its uniform application. The preliminary ruling procedure is of central importance here: national courts can refer questions of law on the interpretation of Union law to the ECJ in order to ensure uniform application of the law in all Member States.
The Union adopts its own legal acts of legislative quality through which it exercises its powers. The two most important forms are regulations and directives. Regulations are directly applicable in all Member States and take precedence over conflicting national law. They directly create rights and obligations for citizens, businesses, and states. Directives, on the other hand, are only binding on Member States with regard to the objective to be achieved. Concrete implementation is carried out through national law. Directives have no direct effect between private parties, but may have direct effect vis-Ă -vis the state in the event of failure to implement or incorrect implementation. In addition, there are decisions, recommendations, and opinions, which have different legal binding effects.
The competences of the Union are regulated in the TFEU. There are exclusive competences of the Union, for example in the area of customs union or monetary policy; shared competences, where both the Union and the Member States can act, with Union law taking precedence; and areas where the Member States remain solely competent, but where the Union can act in a coordinating or supporting role. The basis for the division of competences is the principle of conferral. The Union can only act if and insofar as the Treaties confer competences on it. In addition, there is the principle of subsidiarity, according to which the Union should only act if objectives cannot be sufficiently achieved at national level.
A central element of Union law is the economic freedoms, which derive from the Treaties themselves and are directly applicable. These include the free movement of goods, services, workers, establishment, and capital. These freedoms create the legal framework for the internal market.
The free movement of goods prohibits customs duties and quantitative restrictions, as well as measures having equivalent effect between Member States. National regulations that impede the free movement of goods are generally inadmissible unless they are justified by overriding reasons of public interest and remain proportionate. This freedom ensures that goods can be traded within the Union as if it were a single internal market. Classic examples are the prohibition of national product regulations that would effectively impede imports from other Member States (Cassis de Dijon principle).
The freedom to provide services protects the cross-border provision of self-employed services within the Union and prohibits discriminatory or restrictive measures. Companies and self-employed persons may provide their services in other Member States without having to be established there. The freedom to provide services thus promotes economic integration and competition in the European single market.
The free movement of labour ensures free access to the labor market in other Member States, while the freedom of establishment protects the taking up and pursuit of self-employed activities. Workers are free to move to any Member State, take up employment there and enjoy the same rights as nationals. Freedom of establishment also makes it possible to set up companies or branches in other Member States. Both freedoms promote the mobility of people and economic diversity in the EU.
Finally, the free movement of capital allows for the unhindered transfer of capital and payments not only within the Union, but also in relation to third countries. It applies, for example, to investments, the purchase of real estate, and securities trading, and is also intended to promote investment in the Union. This freedom contributes to the deepening of the European financial market and strengthens international economic relations, with restrictions only permitted for specific reasons, such as combating tax evasion or money laundering.
Union law is directly effective in the legal systems of the Member States. The European Court of Justice has ruled that Union law takes precedence. If national law conflicts with Union law, the national law must be disregarded. This direct effect and primacy of application distinguish the European Union from traditional international organizations and give it its own legal status.