Since 1849, Austrian municipalities have been recognized legally, including the legal entrenchment of a certain degree of autonomy even during the monarchy.1The republican Federal Constitutional Act (B-VG),2enacted in 1920, contained certain principles of local government, but lacked many important provisions that were only inserted into the B-VG as late as 1962 (BGBl 1962/205). Since that time, several federal constitutional amendments have affected the municipalities, among them, the possibility to provide instruments of direct democracy at local level (BGBl 1984/490), to elect mayors directly (BGBl 1996/659), Austrian accession to the EU (BGBl 1994/744), the municipalities’ integration as a third partner (together with the federation and the Länder) in the arena of fiscal federalism (see below) or inter-municipal cooperation (most recently, BGBl I 2011/60).
Whereas the classical theory of federalism, at its outset, focused on the relationship between federation and constituent units («dual system of government»), nowadays it is widely acknowledged that local government is a distinctive part of a multi-tier-system,3even though there are several undeniable differences between the federal and regional levels, especially, the lack of law-
making powers. This changing role of local government in multi-tier systems, due to increased needs of public services at the level that is closest to the citizens, has received much attention lately.4According to some authors, a redefinition of the relations between local government and other tiers of government seems inevitable,5although this may give rise to tensions, particularly from the point of view of the regions. Over the last years, Austrian municipalities have raised several demands in this context with regard to their representation in the federal second chamber, their general admittance to formal agreements with the federation and the Länder, and additional financial resources.6In 2008, a constitutional draft was presented by an expert committee that not only provided a reform of the federal system, but also of the system of local government.7Due to the political refusal by the Länder, however, the reform proposal was not developed, which meant that the constitutional status quo of local government in Austria would remain unchanged for the time being.8In order to facilitate inter-municipal cooperation, however, a federal constitutional amendment, proposed by the Federal Council, was passed in 2011 (BGBl I 2011/60). It particularly enables municipalities to join inter-municipal associations that transgress Land borders, if the concerned Länder formally agree on such cross-border associations. All inter-municipal associations are required to have democratic bodies if they perform matters that fall into the autonomous sphere of municipalities; local matters may be assigned to inter-municipal associations less restrictedly than before. Moreover, municipalities are allowed to enter into formal agreements with other municipalities of their own Land (if this is permitted by the respective Land legislation), or even with those of other Länder, if the concerned Länder conclude a formal agreement regarding this possibility.
According to Art. 2, B-VG, Austria is a federal state that consists of nine constituent Länder (Burgenland, Carinthia [Kärnten], Lower Austria [Niederösterreich], Salzburg, Styria [[c36][c57][c48][c4c][c48][c55][c50][c44][c55][c4e]], Tyrol [Tirol], Upper Austria
[Oberösterreich], Vienna [Wien], Vorarlberg). Article 116 B-VG stipulates that each Land is comprised of municipalities (Gemeinden) and each municipality is both a territorial body of its own, enjoying the right of autonomous self-government, and recognition as an administrative unit.
The 2,357 Austrian municipalities, most of which are very small (under 10,000 inhabitants), constitute the lowest (third) territorial tier in Austria. Since district administrative agencies ([c25][c48][c5d][c4c][c55][c4e][c56][c59][c48][c55][c5a][c44][c4f][c57][c58][c51][c4a][c56][c45][c48][c4b][c7c][c55][c47][c48][c51]), which organisationally are Land agencies but perform both federal and Land tasks and inter-municipal associations (Gemeindeverbände) are not territorial entities of their own, there is no other type of territorial entity below the Land tier other than the municipalities. Municipalities may be subdivided into local districts which are, however, not independent entities. Vienna consists of 23 districts whose assemblies are elected and have some competences of their own. This is due to the exceptional status of Vienna as the capital of Austria and also a Land and a municipality (Art. 108 B-VG).
The Federal Constitution generally does not distinguish between different kinds of municipalities, and follows the «principle of municipal uniformity»,9 which means that legally, municipalities are regarded as equal, irrespective of their size, population, and economic situation. Nevertheless, some municipalities are given a particular status which is determined by the Federal Constitution itself. According to Art. 116 para. 3 B-VG, a municipality with at least 20,000 inhabitants may, if Land interests are not jeopardized, apply for its own statute. This statute is a specific kind of Land law that requires the approval of the Federal Government. If within eight weeks, the Federal Government does not inform the Land Governor of its veto, the statute enters into force. Presently, 15 towns have statutes of their own, mainly because they are Land capitals or for historic reasons, but the option is also open to other municipalities if the aforementioned conditions are met. The difference between «ordinary» municipalities and towns with their own statute is threefold. Firstly, Art. 116 para. 3 B-VG imposes on the latter, the obligation to carry out those administrative tasks within their territory that are usually performed by district administrative agencies. Secondly, the Federal Constitution uses slightly different terms when speaking of certain local authorities, depending on whether they are «ordinary» municipalities, towns (which is just a term used for municipalities with less than 10,000 inhabitants, with no legal distinction) or towns with their own statute (there are 15 of them, including Vienna and all Land capitals as well as some smaller cities that have a statute for historical reasons).10Thirdly, according to Art. 119a para. 5 B-VG, federal or Land legislation may stipulate that a complaint against an administrative ruling from a town with a statute (if the ruling has been determined by the town’s high-
est judicial body), must be placed directly before the Constitutional or Administrative Court, rather than before the supervisory authority.
Another asymmetry is provided by Art. 127a para. 1 and 3 B-VG according to which, municipalities with at least 10,000 inhabitants are subject to audits performed by the Court of Auditors, whereas smaller municipalities must be audited only under very restricted conditions. Until a recent federal constitutional amendment (BGBl I 2010/98), it was a prerequisite that a municipality have 20,000 inhabitants to conduct a general audit. Finally, the «principle of municipal uniformity» does not apply to fiscal equalisation since municipalities receive different revenues depending on the number of inhabitants (see below).
Furthermore, Art. 120 B-VG provides a possible basis for the future establishment of so-called «regional municipalities» (Gebietsgemeinden) pending a constitutional amendment. Unlike the district administrative agencies that are headed by an appointed senior civil servant with legal qualifications, the «regional municipalities» require directly elected authorities – an idea, which has been repudiated as a «politicization» of administration.11
To begin with, the Council of Europe’s Charter of Local Self-Government was ratified by Austria in 1988. In accordance with Art. 12 para. 2, Austria declared itself bound by Art. 2, Art. 3, Art. 4 para. 1, 4 and 6, Art. 5, Art. 6, Art. 7 para. 1 and 3, Art. 9, and Art. 10. Following parliamentary approval, the Charter was published in the federal law gazette (BGBl 1988/357) and thereby became part of the Austrian legal system. The National Council resolved, however, that the Charter would need special modification by domestic laws to become directly applicable. It was emphasized that the Charter was completely in accordance with the prevailing federal constitutional provisions on local government.12Within a multi-tier system, be it of a federal or highly regionalized nature, the role and place of local government both vis-à-vis the federal (central) government and the regional governments need specific legal or even constitutional recognition. Accordingly, the B-VG not only explicitly recognizes the municipalities, but also contains a number of more substantive provisions that form the constitutional framework for all kinds of ordinary laws that entrench local government in more detail. From a comparative perspective, the status of local government in Austria is very well protected, since it has...