Austrian Federalism and the Corona Pandemicvon Anna Gamper
Federalism is one of the many constitutional issues that are recently being examined in the context of the Corona crisis around the world: in many federal systems, the pandemic enhances conflicts between the federal and subnational level or even between the subnational units with regard to competences and enacted measures. The impact of the pandemic on Austrian federalism has, as yet, been limited but is nevertheless interesting, not the least because the normally “unitary” federal system underwent some change during the crisis: the Land Tyrol that had initially been more affected by the pandemic than the other Länder enacted several severe lockdown regulations which to some extent deviated from what the federal government enacted for the whole of Austria. For a short period, a kind of intergovernmental ping pong followed that was based on the federal Epidemics Act 1950 and, later, on more specific COVID legislation. “Adapted” regulations were enacted almost every other day, but the main restriction, namely that inhabitants of the Tyrol were, with some exceptions, neither allowed to leave their houses nor their municipalities nor to enter the rest of the federal territory remained in force for several weeks. Some of the relevant provisions have already been challenged before the Constitutional Court that is expected to decide in its June session at least with regard to part of the cases.
The Federal Parliament enacted (and continues to enact) COVID legislation that has amended not only dozens of Federal Acts and created new Acts but also amended even the Federal Constitution with a view to, inter alia, centralize competences. In several fields, such as energy law or procurement law, the Länder lost some competences which is in line with the general trend towards centralization in Austria. In this process, the role of the Bundesrat as the federal second chamber has been ambivalent: at the beginning of the crisis, the Bundesrat even agreed unanimously to all legislative measures proposed by the first chamber. Later, though, the Bundesrat became more critical and vetoed several COVID bills. Remarkably, however, the veto was not made in order to support federalism but mainly because of fears that fundamental rights would be infringed and parliamentary scrutiny be minimized. A crucial point, however, is that the political majority in the Bundesrat forms the opposition in the first chamber where the recent Federal Government holds a majority. Thus, it would not be surprising if the Bundesrat (one third of the members would be sufficient) also used another instrument, namely the power to challenge federal laws before the Constitutional Court. Indeed, the Bundesrat - which is otherwise a “sleeping beauty” and hardly ever raises a veto or challenges a federal law - used this power successfully in 2019 and could do so again in the recent context.
Other controversial issues of federalism are emerging, eg the crucial question of financial responsibility and reimbursement of costs by the federation. There is some hope, however, that these issues will be resolved in the famously co-operative spirit of Austrian federalism that has, on the whole, been maintained during the crisis.
It is an empirically well-known fact that the state of emergency triggers the following phenomena: (a) the prevalence of executive over legislative bodies, (b) the prevalence of small or monocratic bodies over large collegiate bodies, and (c) the prevalence of centralism over federalism. All three phenomena have happened in the Austrian case. Even if these very recent developments are of a transient nature, they deserve more analysis that would have to systematically compare the relevant federal and Land law as well as evaluate legal and political responsibilities for safeguarding the Austrian federal system.
Informationen zu Anna GamperUniv.-Prof. Dr. Anna Gamper, Institut für Öffentliches Recht, Staats- und Verwaltungslehre an der Universität Innsbruck, ist Koordinatorin des Forschungszentrums für Föderalismus der Universität Innsbruck.