Legislation and Execution by the States

Chapter IV

Legislation and Execution by the States

Part A General Provisions

Article 95. State Parliaments

   1. The legislation of the States is carried out by the State Parliaments. Their members are elected on the basis of proportional representation by equal, direct, secret, and personal suffrage of all male and female federal nationals who in accordance with the State Parliament electoral regulations are entitled to vote and who have their domicile in the State concerned. The provision of Article 26 (1) last sentence applies analogously; the reasons which are held to excuse abstention may not be more restrictive than in the electoral regulations for the House of Representatives.

   2. The State Parliament electoral regulations may not impose more stringent conditions for suffrage and electoral eligibility than the electoral regulations for the House of Representatives.

   3. The voters exercise their franchise in constituencies each of which must comprise a territorial unit. The number of members shall be divided among the constituencies in proportion to the number of nationals. A division of the electorate into other electoral bodies is not admissible.

   4. Public employees, including members of the Federal Army, who seek a seat in or are elected for membership of a State Parliament shall be granted the time necessary for canvassing or fulfilling their membership duties. Service regulations will lay down details.

Article 96. Immunity

   1. The members of a State Parliament enjoy the same immunity as the members of the House of Representatives, the provisions of Article 57 apply analogously.

   2. The provisions of Articles 32 and 33 apply to the meetings of State Parliaments and their committees.

Article 97. State Legislation

   1. A State law requires a vote by a State Parliament, authentication and countersignature in accordance with the provisions of the State concerned, and publication by the State-Governor in the State Law Gazette.

   2. Inasmuch as a State law foresees in its execution the co-operation of Federal authorities, the approval of the Federal Government must be obtained. The approval shall be deemed given if within eight weeks from the day of the enactment's receipt at the Federal Chancellery the Federal Government has not informed the State-Governor that the co-operation of the Federal authorities is refused. Before the expiry of this deadline publication of the enactment may only ensue if the Federal Government has expressly agreed.

Article 98. Notification, Objection

   1. All State Parliament enactments shall, immediately after they have been passed by a State Parliament, be notified by the State-Governor to the competent Federal Ministry prior to their publication.

   2. The Federal Government can within eight weeks from the day of an enactment's receipt at the Federal Chancellery enter a reasoned objection to a State Parliament enactment as endangering Federal interests. If the Federation was prior to the initiation of the legislative procedure for enactment given opportunity to comment on the draft bill, the objection may only be founded on an alleged encroachment on the Federation's competence. In case of an objection, the law may only be published if the State Parliament in the presence of at least half the members once more votes its enactment.

   3. Publication prior to expiry of the deadline for objection is admissible only if the Federal Government expressly agrees.

   4. The provisions of the Constitutional Finance Law apply to State Parliament enactments which deal with taxation.

Article 99. State Constitutions

   1. The State Constitution to be enacted by a State constitutional law can, inasmuch as the Federal Constitution is not affected thereby, be amended by State constitutional law.

   2. A State constitutional law can be passed only in the presence of half the members of the State Parliament and with a two thirds majority of the votes cast.

Article 100. Dissolution

   1. Every State Parliament can be dissolved by the Federal President at the request of the Federal Government and with the sanction of the Senate. The motion in the Senate must be carried in the presence of half the members and with a two thirds majority of the votes cast. The representatives of the State whose State Parliament is to be dissolved may not participate in the division.

   2. In case of dissolution, writs for new elections shall be issued within three weeks in accordance with the provisions of the State constitution; the convocation of the newly elected State Parliament must take place within four weeks after the election.

Article 101. State Government

   1. The executive power in each State is exercised by a State Government to be elected by the State Parliament.

   2. The members of a State Government need not belong to the State Parliament. Nevertheless, only persons eligible for the State Parliament can be elected to membership of the State Government.

   3. The State Government consists of the State-Governor, the requisite number of deputies, and other members.

   4. Before assumption of office, the State-Governor renders to the Federal President, the other members of the State Government render to the State-Governor, an affirmation with respect to the Federal Constitution. The addition of a religious assertion is admissible.

Article 102. State-Governor

   1. In the sphere of the States, in so far as no direct federal administration exists, the State-Governor and the State authorities subordinate to him exercise the executive power of the Federation. In so far as federal authorities, especially Federal public safety authorities, are entrusted with the execution of matters which are performed as indirect Federal administration, these federal authorities are subordinate to the State-Governor and bound by his instructions (Article 20 (1)); whether and to what extent such federal authorities are entrusted with executive acts is regulated by federal laws; these may, in so far as they do not concern the mandate stated in Paragraph (2), only be published with the sanction of the States concerned.

   2. The following matters can, within the framework of the constitutionally established sphere of competence, be directly performed by the federal authorities:
         1. demarcation of frontiers, trade in goods and livestock with other countries, customs regulation and control of entry into and exit from federal territory, Federal finances monopolies, the weights and measures, standards and hallmark system, technical experiments, administration of justice, passports, residence registration, matters of weapons, ammunition and explosives as well as the use of fire-arms, patent matters and the protection of designs, trade marks, and other commodity descriptions, the traffic system, river and navigation police, the postal and telecommunications system, mining, Danube control and conservation, regulation of torrents, construction and maintenance of waterways, surveying, labor legislation, social insurance, the preservation of monuments, operation and conduct of the Federal police and the Federal gendarmerie, including the exceptional circumstances where on the day of entry into force of this Federal Constitutional Law the local sphere of competence for a Federal public safety authority does not coincide with the territory of a Federal State, the maintenance of peace, order and security, excluding the local public safety authorities, Press affairs, matters of association and assembly, and the aliens police, military affairs, welfare measures for combatants and their dependents, population policy in so far as it concerns the grant of children's allowances and the organization of burden equalization on behalf of families schooling as well as education in matters of pupil and student hostels with the exception of agricultural and forestry education in matters of student hostels.

   3. The Federation remains entitled to delegate to the State-Governor its executive power also in the matters enumerated in Paragraph (2).

   4. The establishment of federal authorities for matters other than those specified in Paragraph (2) above can ensue only with the sanction of the States concerned.

   5. No other regional authority may set up and maintain a constabulary in the local sphere of competence of a Federal public safety administration to which a Federal police force is attached. The dissolution of constabularies whose establishment or continuance is contrary to this provision falls under the executive power of the Federation.

   6. The establishment of Federal public safety authorities, the definition of their local sphere of competence and of their substantive sphere of competence in administrative fields which in accordance with Article 10 provide for execution by Federal public safety authorities, as well as the issue of a special service code for their officials ensue on Federal Government ordinance. In so far as such an authority is to be assigned the performance of matters which fall into the autonomous sphere of execution by a State, the ordinance can be issued only if the assignment of such business to the Federal public safety authority has been enunciated in a law of the State in question.

   7. Should in particular Counties the need arise to take special measures because of danger to public peace and order, the competent Federal Minister can for the duration of the danger entrust special Federal officials with these measures.

Article 103. Instructions

   1. In matters of the indirect Federal administration the State-Governor is bound by instructions from the Federal Government and individual Federal Ministers (Article 20) and he is obliged, in order to effect the implementation of such instructions, to employ the powers available to him in his capacity as a functionary of the State's autonomous sphere of competence.

   2. A State Government, when it draws up its Standing Orders, can decide that specific categories of business of the indirect Federal administration shall be conducted by members of the State Government in the name of the State-Governor because of their substantive relationship with matters of the State's autonomous sphere of competence. In such business the members concerned of the State Government are as much bound by the instructions of the State-Governor (Article 20) as is the latter by the instructions of the Federal Government or individual Federal Ministers.

   3. Instructions issued by the Federal Government or individual Federal Ministers in accordance with Paragraph (1) shall also in instances falling under Paragraph (2) be addressed to the State-Governor. The latter, should he not himself be conducting the relevant business of the indirect Federal administration, is responsible (Article 142 (2)(d)) for passing the instruction in writing without delay and unaltered to the State Government member concerned and for supervising its implementation. If the instruction is not complied with although the State-Governor has made the necessary arrangements, the State Government member concerned is, pursuant to Article 142, responsible to the Federal Government as well.

   4. In matters of indirect Federal administration, in so far as it is the State-Governor's responsibility as the appeal authority to reach a decision and federal law because of the matter's importance does not exceptionally provide otherwise, the State-Governor is the final instance of appeal; if the decision rests in the first instance with the State-Governor, the stages of administrative appeal in matters of the indirect Federal administration extend, unless provided otherwise by federal law, to the competent Federal Minister.

Article 104. Assignment

   1. The provisions of Article 102 shall not apply to agencies for the performance of Federal business specified in Article 17.

   2. Nonetheless, the Federal Minister entrusted with the administration of Federal assets can assign the performance of such business to a State-Governor and the authorities subordinate to him. Such an assignment can at any time be revoked in part or in whole. To what extent in exceptional instances the Federation makes recompense for the accrued costs of performing such business will be regulated by federal law.

Article 105. Representation, Deputy State-Governor, Responsibility

   1. The State-Governor represents the State. In matters of the indirect Federal administration, he is, pursuant to Article 142, responsible to the Federal Government. The State-Governor has a member of the State Government as Deputy State-Governor selected by the State Government to substitute him. This appointment shall be notified to the Federal Chancellor. Should the need for substitution occur, the member of the State Government appointed as substitute is, pursuant to Article 142, likewise responsible to the Federal Government in matters of the indirect Federal administration. Immunity does not bar responsibility on the part of the State-Governor or the member of the State Government, who acts for him. Immunity also does not bar responsibility on the part of a member of the State Government in a case arising under Article 103 (3).

   2. The members of the State Government are responsible to the State Parliament pursuant to Article 142.

   3. A vote to prefer a charge within the meaning of Article 142 requires the presence of half the members.

Article 106. State Administrative Director

An administrative civil servant with legal training will be appointed to take charge as State Administrative Director of the State Government Office's internal services. He is also the official assistant of the State-Governor in matters of the indirect Federal administration.

Article 107 {...}

Part B The Federal Capital, Vienna

Article 108. Institutions, Offices

For the Federal capital, Vienna, in its capacity as a State, the County Parliament has the additional function of a State Parliament, the Town Senate the function of a State Government, the Mayor the function of the State-Governor, the Magistrate the function of the State Government Office, and the Magistrate Director the function of the State Administrative Director.

Article 109. Appeal

In the State Vienna the chain of appeal in matters of the indirect Federal administration, unless precluded by federal law, is from the Magistrate acting as District administrative authority or, in so far as federal authorities are in the first instance entrusted with their execution (Article 102 (1) second sentence), from them to the Mayor in his capacity as State-Governor; in other respects Article 103 (4) applies.

Article 110. Administrative Tribunal

The administrative tribunal to be constituted pursuant to Article 11 (5) at the Magistrate of the Federal capital, Vienna, in its capacity as the State Government Office, for the delivery of judgments as authority of last resort in administrative penal business within the State's autonomous sphere of competence shall at the same time also undertake the delivery of judgments as authority of last resort in administrative penal business of the indirect Federal administration; in these cases the Mayor, in his capacity as State-Governor, is competent to exercise the right of clemency on the ground of recommendations by the administrative penal tribunals.

Article 111. Special Committees

The final decision in matters of building and taxation lies with special committees of officials. Their composition and appointment will be prescribed by State law.

Article 112

Except for the provisions in Articles 108 to 111 , the provisions in Part C of this Chapter apply to the Federal capital, Vienna, with the exception of Article 119 (4), 119a . Article 142 (2)(d) also applies to the conduct of the sphere of competence assigned by the Federation to the Federal capital, Vienna.

Article 113 {...}

Article 114 {...}

Part C Counties

Article 115. Local Counties, Competence

   1. In so far as in the following Articles the term County is used, the reference is to be taken as meaning Local County.

   2. Save as competence on the part of the Federation is expressly stipulated, State legislation shall prescribe laws of Counties in accordance with the principles of the Articles contained in this Part. Competence for the settlement of matters which, pursuant to Articles 118 and 119 , are to be performed by the Counties, will be determined in accordance with the general provisions of this Federal Constitutional Law.

Article 116. Self-Administration

   1. Every State is divided into Counties. The County is a territorial corporate body entitled to self-administration while being at the same time an administrative local district. Every piece of State must form part of a County.

   2. The County is an independent economic entity. It is entitled, within the limits of the laws of the Federation and the States, to possess assets of all kinds, to acquire and to dispose of such at will, to operate economic enterprises as well as to manage its budget independently within the framework of the constitutional finance provisions and to levy taxation.

   3. A County with at least 20,000 inhabitants shall, at its own request, if State interests are not thereby jeopardized, be awarded its own charter by way of State legislation. Such an enactment may only be published with Federal Government approval. This shall be deemed given if the Federal Government, within eight weeks from the day of the enactment's arrival at the competent Federal Ministry, has not informed the State-Governor that the approval is refused. A town with its own charter shall perform besides its local administrative duties also those of the District administration.

   4. The formation of County Associations for specific purposes can be planned on the basis of the competent legislation (Articles 10 to 15 ). In so far as such County Associations are to undertake matters within the County's own sphere of competence, the members of the County Association shall be accorded decisive influence upon the performance of the association's functions. The Counties concerned shall be given a hearing prior to the formation of County Associations by way of an executive measure.

Article 117. Authorities, Elections

   1. The authorities of the County shall in every instance include:
  1. the County Parliament, being a popular representative body to be elected by those entitled to vote in the County
  2. the County Board, also known as the Town Council or, in towns with their own charter, the Town Senate, and
  3. the Mayor.
   2. Elections to the County Parliament take place on the basis of proportional representation by equal, direct, secret, and personal suffrage of all Federal nationals who have their domicile in the County. In the electoral regulations the conditions for suffrage and electoral eligibility may not be more restrictive than in the electoral regulations for the State Parliament. It can be provided, however, that individuals who have not yet been residents in the County for at least one year shall not be entitled to vote or to stand for election to the County Parliament if their residence in the County is manifestly temporary. The provisions about compulsory voting in the elections to the State Parliament (Article 95 (1) last sentence ) apply analogously to elections to the County Parliament. The electoral regulations can provide that the voters exercise their suffrage in constituencies each of which must comprise a territorial unit. A division of the electorate into other electoral bodies is not admissible.

   3. A simple majority by members present in sufficient numbers to form a quorum is requisite to a vote by the County Parliament; for certain matters, though, other requirements for the adoption of resolutions can be provided.

   4. Meetings of the County Parliament are public, but provision can be made for exceptions. The public may not be excluded when the County Budget or the County's final accounts are on the agenda.

   5. Electoral parties represented in the County Parliament have a claim to representation on the County Board in accordance with their strength.

   6. The business of the Counties will be performed by the County Administration or Town Administration, that of towns with their own charter by the Magistrate. A civil servant with legal training shall be appointed to take charge as Magistrate Director of the Magistrate's internal services.

Article 118. Competencies

   1. A County has its own sphere of competence and one assigned to it either by the Federation or the State.

   2. Its own sphere of competence comprises, apart from the matters mentioned in Article 116 (2) , all matters exclusively or preponderantly concerning the local community as personified by a County, and suited to performance by the community within its local boundaries. Legislation shall expressly specify matters of that kind as being such falling within the County's own sphere of competence.

   3. A County is guaranteed official responsibility in its own sphere of competence particularly for performance of the following matters:
  1. appointment of the local authorities, notwithstanding the competence of selection boards at a higher level; settlement of the internal arrangements for performance of the County functions;
  2. appointment of the County staff and exercise of the official responsibility over them, notwithstanding the competence of disciplinary, eligibility, and investigatory commissions at a higher level;
  3. local public safety administration (Article 15 (2) ), local events control;
  4. administration of County traffic areas, local traffic police;
  5. crops protection police;
  6. local market police;
  7. local sanitary police, especially in the field of emergency and first aid services as well as matters of deaths and interment;
  8. public decency;
  9. local building police excluding federally owned buildings which serve public purposes (Article 15 (5) ); local fire control; local environment planning;
  10. public services for extra-judicial settlement of disputes; and
  11. debtors' sale of goods.
   4. The County shall perform the business for which it is competent within the framework of the laws and ordinances of the Federation and the State on its own responsibility free from instructions and -- subject to the provisos of Article 119a (5) -- to the exclusion of legal redress to administrative authorities outside the County. A right of supervision (Article 119a ) pertains to the Federation and to the State over the County with respect to its performance in its own sphere of competence. The provisions of Article 12 (2) remain unaffected.

   5. The Mayor, the members of the County Board, and, if appointed, other County officials are responsible to the County Parliament for the performance of their functions relating to the County's own sphere of competence.

   6. The County is entitled in matters of its own sphere of competence to issue on its own initiative local police ordinances for the prevention or elimination of nuisances interfering with local community life as well as to declare non-compliance with them an administrative contravention. Such ordinances may not violate existent laws and ordinances of the Federation and State.

   7. On application by a County, the performance of certain matters in its own sphere of competence can, in accordance with Article 119a (3) , be assigned by ordinance of the State Government or by ordinance of the State-Governor to a state authority. In so far as such an ordinance is meant to assign competence to a Federal authority, it requires the approval of the Federal Government. In so far as such an ordinance by the State-Governor is meant to assign competence to a State authority, it requires the approval of the State Government. Such an ordinance shall be rescinded as soon as the reason for its issue has ceased. Assignment does not extend to the right to issue ordinances in accordance with Paragraph (6).

Article 119. Assignment

   1. The assigned sphere of competence comprises those matters which the County, in accordance with federal laws, must undertake at the order and in accordance with the instructions of the Federation or in accordance with State laws at the order and in accordance with instructions of the State.

   2. The business of the assigned sphere of competence is performed by the Mayor. In doing so, he is in matters of Federal execution bound by instructions from the competent Federal authorities, in matters of State execution by instructions from the competent State authorities, he is responsible in accordance with Paragraph (4).

   3. The Mayor can, without deviation from his responsibility, on account of their factual connection with matters of the County's own sphere of competence transfer individual categories of matters of the assigned sphere of competence to members of the County Board other authorities created in accordance with Article 117 (1) , or members of official bodies for performance in his name. In these matters the authorities concerned or their members are bound by the instructions of the Mayor and responsible in accordance with Paragraph (4).

   4. In so far as malice or gross negligence can be laid to their charge, the authorities named in Paragraphs (2) and (3) can on account of breach of law as well as on account of non-compliance with an ordinance or instruction be declared to have forfeited their office, by the State-Governor if they were acting in the field of Federal execution, by the State Government if they were acting in the field of State execution. Should such a person belong to the County Parliament, the membership is not affected.

Article 119(a). Supervision

   1. The Federation and the State exercise the right of supervision over a County to the purpose that it does not infringe laws and ordinances in dealing with its own sphere of competence, in particular does not overstep its sphere of competence, and fulfills the duties legally devolving upon it.

   2. The State has the right to examine the financial administration of a County with respect to its thrift, efficiency, and expediency. The result of the examination shall be conveyed to the Mayor for submission to the County Parliament. The Mayor shall within three months inform the supervisory authority of the measures taken by reason of the result of the check.

   3. (3) In so far as a County's own sphere of competence comprises matters deriving from the sphere of Federal execution, the right of supervision and its legislative regulation lie with the Federation, in other respects with the States, the right of supervision shall be exercised by the authorities of the ordinary public administration.

   4. The supervisory authority is entitled to inform itself about every kind of County business. The County is bound to give the information demanded in individual cases by the supervisory authority and to allow examination to be conducted on the spot.

   5. Whoever alleges infringement of his rights through the ruling of a local authority in matters belonging to its own sphere of competence can, after exhausting all channels of appeal (Article 118 (4) ), within two weeks after issuing of the ruling make representations against it to the supervisory authority. The latter shall rescind the ruling if the right of the intervener has been infringed and remand the matter to the County. For towns with their own charter, the competent legislature (Paragraph (3)) can direct that representation to the supervisory authority.

   6. The County shall without delay advise the supervisory authority of ordinances issued in its own sphere of competence. The supervisory authority shall, after a hearing of the County, rescind ordinances which are contrary to law and advise the County of the reasons.

   7. In so far as the competent legislature (Paragraph (3)) contemplates the dissolution of the County Parliament as a supervisory expedient, this measure rests with the State Government in exercise of the State's right of supervision, with the State-Governor in exercise of the Federation's right of supervision. The admissibility of effecting a substitution shall be restricted to cases of absolute necessity. Supervisory expedients shall be applied with greatest possible consideration for third parties' acquired rights.

   8. Individual measures to be taken by a County in its own sphere of competence, but which to a certain degree affect extra-local interests particularly such having a distinct financial bearing, can be tied by the competent legislature (Paragraph (3)) to a sanction on the part of the supervisory authority. Only a state of affairs which unequivocally justifies the preference of extra-local interests may come into consideration as a reason for withholding the sanction.

   9. The County has the status of a party to supervisory authority proceedings; it is entitled to lodge complaints with the Administrative Court (Articles 131 and 132 ) and with the Constitutional Court (Article 144 ) against the supervisory authority.

  10. This Article applies analogously to supervision of County Associations in so far as these perform matters pertaining to a County's own sphere of competence (Article 116 (4) ).

Article 120. Local and Regional Counties

The combination of Local Counties into Regional Counties, their establishment in line with the pattern of self-administration, and the determination of other principles for the organization of the ordinary public administration in the States is the business of Federal constitutional legislation; its implementation devolves upon the State legislatures. Settlement of the competence in matters pertaining to the service code for and staff representation rights of the employees of Regional Counties is the business of Federal constitutional legislation.