Austria

Austria - Monitoring report

Date of the monitoring visit: from 24 to 26 March 2010
Report adopted on: 3 March 2011

The report considers the situation of local and regional democracy in Austria. It is the first monitoring report since Austria ratified the European Charter of Local Self-Government in 1987.  It expresses satisfaction over the state of local democracy which is in compliance with the Charter in general and underlines the specific cooperative nature of the Austrian federal system linking various levels of local and federal government. It takes note, however, that the efforts made to restructure the federal system have not produced tangible results and expresses concern that local governments are still under considerable supervision by federal authorities, particularly as regards limitations on fiscal and administrative autonomy.

 

The report recommends to the Austrian Government to introduce an overall institutional reform of the federal system, clarifying competences and strengthening local government financially, by granting them more resources and flexibility, including tax autonomy and the possibility to conclude agreements with the federal authorities. It also encourages efforts for better representation of women at local and regional level and recommends that the Austrian authorities sign and ratify the Additional Protocol to the Charter on the right to participate in the affairs of a local authority.

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Article 2
Constitutional and legal foundation for local self government - Article ratified

The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.


The Federal Constitutional Law of Austria recognises the principle of local self-government. Article 116 B-VG states that each Land is composed of municipalities and that each municipality is a territorial and administrative body of its own, enjoying the right of self‑administration. The territorial tier of government below the Länder are the municipalities and the districts.

 

The Federal Constitutional Law (Articles 116 and 118) lays down the requirements for the organisation and operation of local self-government.

 

According to Statistisches Jahrbuch 2010, within the Länder there are a total of 2,357 municipalities: 15 cities with their own statutes (Statutarstädte), 198 towns (Stadtgemeinden), 759 markets (Marktgemeinden) and 1,385 villages (Ortsgemeinden). Given that Austria’s population is about 8 million, the average municipality has around 3,500 inhabitants and about 1,500 municipalities have fewer than 2,000 inhabitants. There are 24 municipalities with more than 20,000 inhabitants, while the smallest municipality has a population of around 60. Austria has thus a large number of small municipalities.

 

Furthermore, under Article 115, the Länder may lay down detailed legislative frameworks for local authorities (Gemeindeordnung), in accordance with the principles of the Federal Constitutional Law. In this respect, Land constitutional and ordinary legislation usually determines the administrative arrangement of local territory, electoral processes at local level, local taxes, the representation of local authorities in the Land legislative process and municipalities’ rights to initiate legislation, referendums or opinion polls.

 

The Länder have also passed a number of ordinary laws in order to implement the rules established by the Federal Constitutional Law and by their own Constitutions respectively. These concern issues such as local government acts, city statutes and inter-municipal associations, etc.

 

The Federal Constitutional Law does not distinguish between different types of municipalities, but refers to the concept of “uniform municipality” (Einheitsgemeinde), which means that all municipalities have to perform the same tasks and must be granted equal legal treatment, irrespectively of the size, financial capacity, population or status (city, town, market or village). Only Vienna, the capital of Austria, and 15 other cities have a particular status and are required to perform specific tasks of district administration.

Article 3.1
Concept of local self government - Article ratified

Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.


The constitutional principle of differentiation between state bodies (federal and regional) and local self-government bodies is the basic guarantee of local autonomy. Municipalities in Austria are not merely administrative units but also autonomous bodies with a right to self-government. This is demonstrated by the fact that administrative tasks are performed by bodies other than the federation and constituent Länder. As is characteristic of self‑government, their sphere of competence includes own/autonomous (Article 118 of the Federal Constitutional Law) and assigned/delegated functions (Article 119 of the Federal Constitutional Law).

 

When municipalities perform tasks within their own sphere of competences, they may not be given instructions by the federation or Länder. When they perform delegated tasks, however, they are subject to instructions from federal or Länder authorities.

Article 3.2
Concept of local self government - Article ratified

This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.


Consult reply indicated at article 3.1

Article 4.1
Scope of local self government - Article ratified

The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.


Under Article 4, paragraph 3 of the Charter, the distribution of powers and responsibilities should be based on the principle of subsidiarity, which requires that “public responsibilities” be exercised by the “authorities closest to the citizen”. This approach appears to apply to local self-government in Austria.

 

Municipalities’ powers have a sound written basis in the Federal Constitutional Law, which reflects the principle of subsidiarity. Apart from the provisions mentioned above, Articles 116 and 118 of the Federal Constitutional Law also stipulate that municipalities’ own sphere of competences includes all matters that exclusively or preponderantly concern their local communities and may reasonably be performed by the authorities within their municipal boundaries. Article 118 sets out a demonstrative list of matters for which municipalities are responsible.

 

Municipalities’ own responsibilities cover issues of local interest as defined by the respective Land, in addition to those set out by the Federal Constitutional Law. They include the police, urban and spatial planning, transport, environmental protection, water supply and sewerage, household waste collection, construction and upkeep of primary and vocational schools, as well as health (municipal hospitals) and welfare.

 

Delegated responsibilities include, among other things, civil registration, organisation of elections and health measures, etc.

 

In addition, the federation and the Länder share responsibilities with the municipalities in areas such as education and health care. However, this is not an “original” sharing system, since the constitutional distribution of powers only allocates powers either at federal or Land level. Only in a second step, municipalities derive powers from federal or Länder laws.

 

The Federal Constitutional Law provides that municipalities perform the tasks for which they are responsible within the framework of the legislation of the federation and the Länder on their own responsibility and without instructions.

 

This provision seems to comply with the principle of full and exclusive powers (Article 4, paragraph 4 of the Charter) at least to the extent that the powers assigned contain no provision for intervention by other bodies or levels of government. Nevertheless, even when they perform tasks in their own spheres of competence, local authorities are subject to supervision by both the federal and/or Land authorities.

 

In this connection, it should be noted that Austria does not consider itself bound by Article 4, paragraphs 2 and 5 of the Charter, which provide for local authorities to have “full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority” and in “adapting their exercise to local conditions” in cases where powers are delegated.

 

Municipal Institutions

 

The Federal Constitutional Law (Article 117) recognises three main bodies of local self-government: the municipal council, the municipal board and the mayor.

 

Municipal council (Gemeinderat)

 

The municipal council is the highest authority of the municipality. Pursuant to Article 117, local councils are directly elected by the citizens, according to the same electoral principles as apply to the election of the National Council. The councils are representative and decision‑making bodies.

 

Municipal board (Gemeindevorstand)

 

Municipal boards are collegiate bodies elected by the local councils in a proportional representation voting system. In Statutory cities they are called municipal senate (Stadtsenat). In the 2,357 municipalities of Austria there are about 42,250 municipal councillors.

 

Mayor (Bürgermeister)

 

The Federal Constitutional Law provides that mayors are elected by local assemblies. Since 1995, however, it has allowed the Länder to deviate from this provision. So far, six Länder have adopted constitutional provisions allowing the direct election of mayors.

 

Mayors are the political heads of the municipalities, representing the community and chairing the municipal councils and the boards of the municipalities. They have the right to table motions and to issue instructions.

 

Mayors are accountable to the municipal councils for matters related to their spheres of competence. For performing all tasks delegated to the local level they are subject to the instructions of either the federal or Länder authorities, depending on whether the task in question involves a federal or Länder competence.

 

In the event of illegal conduct, mayors may be dismissed by the Land government on behalf of the Land or by the Land Governor on behalf of the federation.

 

While mayors of larger towns exercise their functions full-time, most mayors head small municipalities and fulfil their mandate alongside their normal job. During the monitoring visit, the delegation has been informed about the difficulty of small municipalities to find candidates for the position of mayor due to poor social conditions, in particular with regard to pension and unemployment schemes. Some interlocutors also expressed the fear that an increasing liability of the mayor in cases of accidents may hinder potential candidates.

 

Statutory cities (Statutarstädte)

 

Although there is no legal distinction between different types of municipalities, some cities have their own statute/own constitution (Stadtverfassung) and are so-called “statutory cities” (Statutarstädte).

 

In accordance with Article 116, paragraph 3 of the Federal Constitutional Law, this status is granted to municipalities with at least 20,000 inhabitants, if this does not jeopardise Land interests. The status involves a specific kind of Land law, which requires the approval of the Federal Government. At present, 15 towns have statutes of their own1, mostly because they are regional capitals or for historic reasons, but the option is open to other municipalities if the aforementioned conditions are met.

 

The major difference between “ordinary” municipalities and cities with their own statute is that statutory cities hold the functions of administrative districts and have to carry out those administrative tasks within their territories, which are usually performed by various administrative agencies.

 

The mayors are both the heads of the elected local governments and of the federated state territorial administrations.

 

The specific case of the capital city Vienna

 

Vienna has 1,6 million inhabitants for an area of 414 square kilometres. It was an integral part of Lower Austria until 1922 and has today a special statute being a Land of its own, a municipality and a statutory city. The municipal council therefore also acts as Land Parliament, the municipal senate as Land government and the mayor as Land Governor.

 

Due to its double status as both a Land and a municipality, Vienna in the fiscal equalisation scheme receives is share both as Land and as municipality.

 

As capital city Vienna has no specific rights, with the exception that it hosts all federal institutions.

 

Vienna’s double political and administrative system is in line with the Congress Recommendation 219 (2007) on the Status of capital cities calling for a democratically elected municipality in the capital city. The city councillors perform a dual function, since they are elected to both the municipal council and the Land Parliament. In other words, they are both city councillors and Land deputies.

 

Vienna is subdivided into 23 municipal districts, which have their own district parliaments with certain powers. They are headed by elected district chairpersons. The powers and financial resources of the districts seem very limited.

 

The mayor chairs the municipal senate and convenes its meetings. Beneath the Mayor there are the executive city councillors as heads of the municipal authority’s working groups, the 23 municipal district chairpersons and all municipal employees. The Mayor represents the city abroad.

 

Austrian Association of Municipalities and Austrian Association of Cities and Towns

 

Under Article 115 of the Federal Constitutional Law, two associations are competent to represent the interests of local authorities: the Austrian Association of Municipalities (Österreichischer Gemeindebund), representing smaller towns and the Austrian Association of Cities and Towns (Österreichischer Städtebund) representing larger cities.

 

Membership of these associations is voluntary. They are both private-law entities and are funded solely by contributions from the member communities. They are entitled by constitution or law not only to participate in the appointment of some Austrian delegates to the EU Committee of the Regions, but also to conclude the agreement on a consultation mechanism and the Austrian Stability Pact.

 

Their principal tasks are to defend the interests of municipalities in the periodic negotiations of the Fiscal Equalisation Law (Finanzausgleichsgesetz), in the negotiations on intergovernmental revenue sharing and express their point of view on the many bills that originate in the national parliament.

 

The associations (like the Länder) pay very close attention to the limitations on local self-government which may result from certain international agreements. In particular, they have adopted various resolutions to prevent agreements such as those of the GATS (General Agreement on Trade and Services) covering public services like water, health, urban transport and social services which are currently delivered by the Länder or municipalities.

 

Status of elected representatives

 

In addition to the Federal Constitutional Law, the status of local elected representatives is determined by the Länder local government acts and acts governing local elections. The relevant legislation must not be contrary to the Federal Constitutional Act, in particular, Article 115. Different legislation on local self‑government applies in each of the nine Länder.

 

Depending on the Land legislation, local representatives’ terms of office are five or six years. Elected representatives may resign at any time without restrictions. A restriction does, however, apply following their resignation: they may not hold the post of president of the Administrative Court within a period of four years.

 

Land legislation makes provision for the work of elected representatives: civil servants are released from their duties for a specific number of hours.

 

Elected representatives receive allowances to compensate for loss of earnings and to cover expenses. The reimbursement of the expenses incurred while carrying out elective duties varies from Land to Land. The amount reimbursed is not adequate everywhere, and in some Länder there is a clear shortage of candidatures for the position of municipal councillors.

 

There are special Land laws governing salaries and pension schemes for the elected representatives and full‑time mayors of large towns. Small municipalities are, however, left out of these schemes and their mayors suffer from inadequate social security cover. Mayoral salaries for municipalities under 500 inhabitants range from €11,967 (US$16,403) per year in Burgenland to €21,910 (US$30,033) in Tyrol, and for cities over 20,000 inhabitants from €88,536 (US$121,360) in Lower Austria to €110,670 (US$151,700) in Upper Austria. Improvements in local councillors’ position (social cover, insurance liability, etc.) are requested by many elected officials.

 

Women’s representation in the various Austrian elective assemblies and in the various executive bodies is relatively weak and political reforms are needed to improve this situation. The number of female mayors increased from forty-five in 2003 to seventy-three in 2005, a significant increase, but still only a 3.1% share of the leadership positions.


[1] Eisenstadt, Rust, Klagenfurt, Villach, Wiener Neustadt, St. Pölten, Krems, Waidhofen/Ybbs, Linz, Steyr, Wels, Salzburg, Graz, Innsbruck, Wien.

Article 4.2
Scope of local self government - Non ratified

Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.


Consult reply indicated at article 4.1

Article 4.3
Scope of local self government - Non ratified

Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.


Consult reply indicated at article 4.1

Article 4.4
Scope of local self government - Article ratified

Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.


Consult reply indicated at article 4.1

Article 4.5
Scope of local self government - Non ratified

Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.

 


Consult reply indicated at article 4.1

Article 4.6
Scope of local self government - Article ratified

Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.

 


Consult reply indicated at article 4.1

Article 5
Protection of local authority boundaries - Article ratified

Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

 


Changes in municipal boundaries and the merging or splitting of municipalities require a special decision by the municipal council and the approval of the Land government. From a legal point of view, the changes take the form of ordinances of the Land government or Land acts.

 

Depending on the legislation in each Land, the public does not necessarily have to be consulted.

Article 6.1
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.


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Article 6.2
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.


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Article 7.1
Conditions under which responsibilities at local level are exercised - Article ratified

The conditions of office of local elected representatives shall provide for free exercise of their functions.


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Article 7.2
Conditions under which responsibilities at local level are exercised - Non ratified

They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.


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Article 7.3
Conditions under which responsibilities at local level are exercised - Article ratified

Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.


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Article 8.1
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.


Under Article 8, paragraph 2 of the Charter “any administrative supervision of the activities of local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles”. Theoretically, supervision of the activities of local government organs focuses solely on lawfulness. In particular, when municipalities act within the area of local self‑government, they are not subject to instructions from the federal or Länder authorities.

 

To ensure lawfulness, a number of supervisory instruments involving, for example, the right to information, the right to repeal unlawful local orders and the right to approve local ordinances in some cases and even to dissolve local assemblies are available to the federation and the Länder.

 

The federation may exercise its supervisory powers with regard to the performance of the federal tasks that are carried out by municipalities.

 

The Länder also have the power to examine the budgets of municipalities with reference to the criteria of economy, efficiency and expediency.

 

Municipalities are normally supervised by the district agencies, by the Länder governments and by the Land Governor on behalf of the federation.

 

Clearly, at least some of these provisions go beyond the notion of the supervision of lawfulness. They definitely imply administrative supervision, which is acceptable in the case of functions delegated to municipalities.

 

Budgetary and financial control of local authorities

 

Budgetary and financial control measures at municipal level depend on each Land's legislation. While the municipalities in most Länder are audited by the control authority in their respective Land (Gemeindeaufsicht), all of the Länder have established their own Regional Courts of Auditors (Landesrechnungshöfe).

 

Until 1st January 2011 pursuant to Article 127 a, paragraphs 1 and 3 of the Federal Constitutional Law, all municipalities with at least 20,000 inhabitants were subject to auditing by the Federal Court of Auditors (Rechnungshof).  During the visit the delegation had been informed of the concerns among locally elected representatives that the supervision (considered to be extremely stringent) by the Federal Court of Auditors could also be applied to municipalities with fewer than 20,000 inhabitants. Following amendments introduced to the Federal Constitution on 14 December 2010, this number has been reduced to 10,000 inhabitants, which covers about 70 municipalities.

Article 8.2
Administrative supervision of local authorities' activities - Non ratified

Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.


Consult reply indicated at article 8.1

Article 8.3
Administrative supervision of local authorities' activities - Article ratified

Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.


Consult reply indicated at article 8.1

Article 9.1
Financial resources of local authorities - Article ratified

Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.


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Article 9.2
Financial resources of local authorities - Article ratified

Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.


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Article 9.3
Financial resources of local authorities - Article ratified

Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.


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Article 9.4
Financial resources of local authorities - Article ratified

The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.


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Article 9.5
Financial resources of local authorities - Article ratified

The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.


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Article 9.6
Financial resources of local authorities - Article ratified

Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.


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Article 9.7
Financial resources of local authorities - Article ratified

As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.


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Article 9.8
Financial resources of local authorities - Article ratified

For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.


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Article 10.1
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.


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Article 10.2
Local authorities' right to associate - Article ratified

The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.


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Article 10.3
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.


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Article 11
Legal protection of local selfgovernment - Non ratified

Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.


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ACCESSION

to the Council of Europe

RATIFICATION

of the European Charter of Local Self-Government

CONSTITUTION | NATIONAL LEGISLATION

The Federal Constitutional Law of Austria recognises the principle of local self-government. Article 116 B-VG states that each Land is composed of municipalities and that each municipality is a territorial and administrative body of its own, enjoying the right of self‑administration.



24Ratified provision(s)
0Provision(s) with reservation(s)
6 Non ratified articles
1Compliant article
0Partially Compliant Provision(s)
0Non-compliant Article