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Federations Magazine Article
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Experts Tackle the Constitution

Experts Tackle the Constitution BY Peter Bussjager

Austria’s new chancellor,
Alfred Gusenbauer, a Social
Democrat, has declared reform
of the Austrian federal state
and of the administration as “the heart”
of the governing agreement between the
two parties in his coalition Government.
Gusenbauer was sworn in as chancellor
in January 2007, after more than three
months of difficult negotiations between
his party and the conservative People’s
Party that ended in a coalition agreement.
National elections last Oct. 1 led to a near
tie in the number of legislative seats held
by the Social Democrats and the People’s
The choice of federal reform was
hailed as a breakthrough, because the
conservative People’s Party had traditionally
favoured a high degree autonomy
of the Länder, the equivalent of states or
provinces, while the Social Democrats
had in the past argued for a strong central
In fact, the section of the agreement
dealing with the new constitutional
reform does not aim to write a new constitution,
but rather seeks to achieve
other reforms such as:
• establishing administrative courts in
the Länder which would allow participation
of the Länder in courts.
• organizing a new system of administration
for education, which could enable
the Länder to play a more important
role in Austria’s educational system.
• enhancing the constitutional autonomy
of the Länder and reducing the supervising
powers of the federation.
• creating a new distribution of competencies
by a so-called “third pillar,”
which would allow a certain form of cooperative
legislation between the
federation and the Länder.
This last goal, the creation of a “third
pillar,” is the most difficult. Many observers
doubt whether there is any chance of
reaching consensus on a new form of
power sharing.
Austria last tried to reform its federal
system between June 2003 and January
2005. But agreement was not reached on
the distribution of competencies or the
restructuring of financial relationships
between the federal level, the Länder and
local governments, or on the creation of
a new charter of fundamental rights.
One Expert from Each Party
One essential difference with the new
constitutional reform under Chancellor
Gusenbauer is that the reform proposals
will be fleshed out by a small group of
experts who played an important role in
the past attempt at reforming Austria’s
federal system. The agreement between
the Social Democrats and the People’s
Party names two experts for each of the
parties in the coalition. The experts from
the Social Democrats are Theo Öhlinger,
professor of constitutional law at the
University of Vienna, and Peter Kostelka,
former speaker of the Social Democratic
party caucus in the Austrian legislature,
later named Ombudsman by his party.
The experts from the People’s Party are Andreas Khol, former President of the
Austrian legislature, now retired but still
one of the most prominent political
experts on Austrian federalism, and
Franz Fiedler, former President of the
Austrian court of audit.
Two experts were delegated by the
conference of the state governors. The
first is Gabriele Burgstaller, state governor
of Salzburg and a member of the
Social Democrats; the second is Herbert
Sausgruber, state governor of Vorarlberg,
from the People’s Party. These two individuals
are partly represented by other
experts. Georg Lienbacher, head of the
Constitutional Service of the Federal
Chancellery, is Secretary General of the
group. The group of experts has until the
end of June to work out its proposals.
“Executive Federalism” Ahead?
Presently, the expert group is focusing its
energies on issues related to administrative
courts in the Länder, the organization
of the educational administration in
Austria and concentrating the administration
of social welfare in a one-stop-shop
on the regional level. There is a chance
that these proposals will find support
from the federal government and the
Länder. As a result, these projects might
strengthen “executive federalism” in
Austria. It can be expected that the opposition
parties, the Greens, the Freedom
Party and the BZ Ö (Jörg Haider’s party),
will object to these projects. They may not
be able to block them if the Social
Democrats and the People’s Party, which
also dominate eight of nine Länder (with
the exception of Carinthia, governed by
Jörg Haider’s party) reach consensus.
Other chances for a new distribution
of powers in legislative areas are very
slim. There are huge differences between
the positions of the Länder and the proposals
of the federation. On the whole, it
is unlikely that the Länder will enhance
their legislative functions and gain more
legislative autonomy. Perhaps the creation
of co-operative legislation between
the federation and the Länder, in the
form of a so-called “third pillar”, will work
as a dry run regarding some matters such
as those related to hospitals, social welfare
and aspects of youth affairs. That
could pave the way for further change.
Past Attempts Failed
The chances for reform this time are
much better than in the past. One previous
attempt at reforming the federal
system was the Structural Reform of the
Competencies, which took place from
1989 to 1994. Faced with the possibility of
Austria’s accession to the European
Union, the Länder demanded a fundamental
redistribution of responsibilities
within the federal system to compensate
for their loss of powers and influence in
various legislative realms. In the end, the
Länder rejected the compromise
The second project for structural
reform of the Austrian federal system was
the Austrian Constitutional Convention,
held from June 2003 to January 2005.
The convention, spurred on by
Austria’s coming accession to EU membership,
tried to draft reform proposals
for the Austrian political system and the
constitution. The convention finished its
work in January 2005 without reaching
an agreement.
Although both reform projects had
similar goals, there is one important difference.
In the late 1990s and the first
years of the 21st century, the paradigms
of the Austrian discussion about the federal
system changed. Reform discussions
no longer dealt with the strengthening of
the powers of the Länder, but rather with
the future of the federal system itself.