Venice Commission - Report on Bicameralism
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1.Has the country always had a bicameral parliamentary (or congressional) system? If not, from when did the country adopt a bicameral system? Is there a public debate about keeping bicameralism or moving to a unicameral system? Why? What are the terms of the debate? What is the public perception of the usefulness and acceptability (legitimacy) of the second chamber?
The bicameral parliamentary system in Austria has its origins in the times of the Austro-Hungarian monarchy. Based on the Constitution of December 1867, the Austrian part of the Austro-Hungarian Empire had two chambers of Parliament (Reichsrat): the Abgeordnetenhaus, with deputies representing people of the various states (Länder) of the empire (general electoral system in 1907), and the Herrenhaus with deputies of the clerical and aristocratical elites, installed by the emperor. In terms of legislation, both chambers had more or less the same legal position. A law passed by the first chamber needed the consent of both the Herrenhaus and the Emperor; in this light there was "perfect bicameralism" in Austria from 1867 to 1918. Notwithstanding this, Austria-Hungary was not a federation in a strict sense, but the empire had rather developed into a decentralised unitary state.
2.What is the population of the country? What is its size?
9.106.126 people (1 january 2023, source: Statistik Austria, Bevölkerung zu Jahres-/Quartalsanfang - STATISTIK AUSTRIA - Die Informationsmanager) size: 83.883,34 square kilometers (1 january 2022, source: Statistik Austria, Regionale Gliederungen - STATISTIK AUSTRIA - Die Informationsmanager)
3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed
The Republic of Austria is a federal state composed of nine autonomous federal provinces: Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria, Tyrol, Vorarlberg, Vienna. Its federal nature is one of the principles laid down in the Constitution (Art. 2 B-VG) and can only be changed by referendum according to Art. 44 para. 3 B-VG.
4.How many members are in the lower house?
The Austrian Parliament has two chambers: the National Council with 183 members and the Federal Council with 61 members.
5.How many members has the second chamber?
The Federal Council has 61 members.
6.How are members of the second chamber selected? Please describe: a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber? b) territorial or other criteria; i) region/provinces/municipalities/others; ii) professional categories/ethnic/age/other; c) candidates’ independence from/affiliation with political parties; d) in case of indirect election, is there an imperative mandate or a similar practice?
Indirect suffrage: According to Art. 35 para. 1 B-VG the members of the Federal Council and their substitutes are elected by the Provincial Parliament for the duration of their respective legislative periods in accordance with the principle of proportional representation. But at least one seat must fall to the party having the second largest number of seats in a Provincial Parliament or, should several parties have the same number of seats, the second highest number of votes at the last election to the Provincial Parliament. When the claims of several parties are equal, the issue shall be decided by lot.
7.Age. What is the age limit to elect and be elected or appointed to the second chamber? Does it coincide with the lower chamber? Are there other requirements for election than those for members of lower chambers?
Art. 35 para. 2 B-VG provides that members of the Federal Council must be eligible for the Provincial Parliament. Thus, the age limit to elect and be elected to the Federal Council is determined by the electoral regulations of the nine provincial parliaments. All of them entitle the right to vote to Austrian citizens who have completed their sixteenth year of life on the day of election and the right of being elected to people who have completed their eighteenth year of life on the day of election. These provisions concerning the age limit to elect and be elected to the Federal Council coincide with the provisions regarding the National Council (see Art. 26 para. 1 and 4 B-VG).
8.Gender. Are there any requirements to achieve gender parity between men and women in the composition of the second chamber or is there any gender quota system? If so, is there a similar requirement or gender quota system for the lower chamber?
There is no such thing as a gender quota system regarding the composition of the Federal Council. Nevertheless the delegating provincial parliaments are bound to the general provisions of the Federal Constitutional Law concerning gender equality: Art. 7 para. 2 B-VG: The Federation, provinces and municipalities subscribe to the de-facto equality of men and women. Measures to promote factual equality of women and men, in particular by eliminating actually existing inequalities, are admissible.
9.Term of office or tenure. Duration? Does it coincide with lower chamber? Does the second chamber follow the continuity rule (members are not replaced all at once, new elections concern only part of the chamber at a time)? Can the second chamber be dissolved and if yes, who and how exercises its competences in the meantime? Please report any particularity.
Since the members of the Federal Council and their substitutes are elected by the Provincial Parliament for the duration of their respective legislative periods (Art. 35 para. 1 B-VG), the members of the Federal Council are not replaced all at once, but successively after every Provincial Parliamentary Election. Upper Austria has a legislative period of six years; in the other eight provinces of Austria it´s five years.
10.Congruence. Is it common for the second chamber to have a similar party composition (majority-minority) to that of the lower chamber?
Yes, in Austria it is common for the Federal Council to have a similar party composition to that of the National Council. Since 1945 (Second Republic) there were only a few legislative periods in which the majority of the Federal Council (temporarily) differed from the governing coalition parties in the National Council (1966-1970, 1975-1979, 1979-1983, 1983-1986, 2002-2006, 2019-2020). At the moment the majority in the Federal Council (31 members belong to the Austrian Peoples´s Party and the Green Party in total) again coincides with the majority in the National Council (97 members belong to the Austrian Peoples´s Party and the Green Party in total).
11.Status. Are there differences between the legal status of members of the two chambers, and if so, what (e.g., immunity, conflict of interest)?
Although the (constitutional) legislation differs in its wording, there are actually no differences regarding the legal status of the members of the National and the Federal Council:
12.Rules of procedure. How are the rules governing the second chamber established? Are they different from the lower chamber’s and what are the most relevant differences? Are the internal regulations controlled by the constitutional judge?
The most important rules governing the Federal Council are laid down in the Federal Constitutional Law (Art. 34 – 37 B-VG). Additional rules are defined by resolution of the Federal Council itself: the Federal Council´s rules of procedure (Geschäftsordnung des Bundesrates, GO-BR), Federal Law Gazette (Bundesgesetzblatt, BGBl.) Nr. 61/1988, in the version of BGBl. I 79/2021 (general provisions concerning the Federal Council, Federal Council members, organs, parliamentary groups, surveys, meetings and the administration of the Federal Council). These rules are not established in accordance with the ordinary legislative process with participation of the National Council and the Federal Council, but by resolution of the Federal Council alone (Art. 37 para. 2 B-VG, see below question 13) b)). Although these rules constitute no ordinary law in the narrow sense, the Constitutional Court is competent to decide on any concerning violations of constitutional law.
13.Powers/competences: Are the powers and competences the same in the two chambers (symmetrical bicameralism)? If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe: i) financial; ii) legislative; iii) oversight/control; iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc; v) interim powers (e. g. in case of dissolution of the first chamber).
a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one; b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority? c) What kind of parliamentary initiative can the first and second chamber exercise? d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism); how many readings before the final decision? Does a mixed commission meet? e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first? f) Is the government responsible to the second chamber (when it is before the first one)? g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones? h) Does the second chamber have a specific role in emergency situations?
i) financial
14.Is there a form of intergovernmental conference of regions in your country (conference of ministers or presidents of regions, Landers, states members of the federations)? Does it interact with the second chamber? How often does it meet? What is its specific relevance?
Even though it is not mentioned in the Federal Constitution, the conference of the Governors of the nine provinces (Landeshauptleutekonferenz) plays an important role in party politics. Due to the Federal Council´s weak position as an organ of representation of the provinces´ interests, it´s de facto the most important instrument of the provinces to pursue their interests on federal level respectively to influence federal politics. The Governor´s conference usually takes place twice a year, extraordinary meetings can also be convened in urgent cases. Its decisions are adopted unanimously. There are no formal rules of procedure and no legal regulations concerning any interactions of the Governor´s conference with the Federal Council. However, the Governors themselves are entitled to participate in all Federal Council proceedings. In accordance with the specific regulations of the Rules of Procedure of the Federal Council they have on their demand the right to be always heard on business relating to their province (Art. 36 para. 4 B-VG).
15.Please provide any other relevant observation on the bicameral system of the country.
A complete abolition of the Federal Council would be considered as a total revision of the Federal Constitution (republican principle), which must be submitted to a referendum by the federal people (Art. 44 para. 3 B-VG).
Austria
With the end of monarchy and the change to a republican system in 1918, the Herrenhaus was abolished. The previous system with one chamber of parliament, that was not democratically legitimated, became unacceptable. In a federal system the second chamber might regain a certain function like representing the interest of the Länder and participating in federal law-making. Therefore, in the course of the debates between the Central Government and the Länder on the future structure of the Republic, the establishment of a second chamber (Federal Council = Bundesrat) was soon in discussion.
The Austrian (bicameral) parliamentary democracy, as it exists today, was set up by virtue of the Constitution of 1 October 1920. Since then – only interrupted by the period of the corporatist-authoritarian regime from 1934 to 1938 and the annexation to the Third Reich from 1938 to 1945 (the Constitution of 1920 was reinstated with all its amendments in 1945) – Austria always had a bicameral system.
Since its establishment in 1920 there has always been criticism aimed at the usefulness of the bicameral system in Austria (especially regarding the Federal Council). Critical voices are speaking of a "failure" of the Federal Council´s designated function as an organ of representation of the provinces´ interests and that it is only rarely able to exercise effective lobbying for provincial interests. The roots of the Federal Council´s weakness are spotted in the nomination procedure of the Federal Council members on the one hand and in its limited powers on the other hand. The members of the Federal Council are elected by the provincial parliaments to the proportional strength of the parties. This institutional construction and political practice have led to a Federal Council that is dominated by political parties respectively political groups overlapping provincial boundaries. The Federal Council may only challenge a bill proposed by the National Council, which can override this (suspensive) veto by repeating a vote on the bill. An absolute veto is granted to the Federal Council only for a limited number of cases.
Nevertheless, arguments justifying the Federal Council´s existence are seen as well: On the one hand its (absolute) veto-right concerning modifications of the Federal Constitution that could severely damage the competences of the provinces is emphasised. On the other hand the Federal Council actively participates on the subsidiarity monitoring of projects of the European Commission.
Although the usefulness of the Federal Council in Austria has always been criticised there is no apparent public debate about moving to a unicameral system. Reform ideas over the years remained vague (a structural reform of competences in the 1990s failed; the so called "Austrian Convention", an attempt to reform the Austrian political system and its Federal Constitution in the years 2003-2004, finished its work without reaching consent over the most intensively debated matters). These ideas were mainly not aimed at abolishing the bicameral system or the Federal Council itself, but at modifying the organisation or the function of the Federal Council (for example to bind Federal Council members to instructions of the Provincial Parliaments, to entitle provincial citizens to directly vote their delegates or to strengthen and specify the powers of the Federal Council like extended veto-rights).
The main reasons impeding any reforms are among other things that the National Council does not want to share its powers with another organ, that political parties do not want to give up valuable political resources like Federal Council members and that the provinces and its representatives themselves are indecisive regarding any reforms of the political negotiation culture in Austria. Moreover, any structural or organizational changes regarding the Federal Council would entail a change of constitutional law that can only be passed by the National Council in the presence of at least half the members and by a majority of two thirds of the votes cast (Art. 44 para. 1 Federal Constitutional Law, Bundes-Verfassungsgesetz – B-VG) and can be submitted to a referendum by the federal people if one third of the members of the National Council or the Federal Council so demands (Art. 44 para. 3 B-VG). A complete abolition of the Federal Council would be considered as a total revision of the Federal Constitution (respectively its republican principle, Art. 1 B-VG) that must be submitted to a referendum by the federal people (Art. 44 para. 3 B-VG). The government program of the present coalition between the Austrian people´s party and the Austrian Green Party does not contain a single mention concerning a reform of the bicameral system or the Federal Council.
Unlike the situation in states with a centralist form of organisation, the legislative and executive powers in Austria are shared by the federal and provincial governments (Art. 10 – 15 B-VG). Thus, the federal state and the provinces have legislative bodies and executive organs of their own. Provincial laws and laws pertaining to communities are passed by the provincial parliaments and the administration of the provinces lies in the hands of the provincial governments. The provinces participate indirectly in the administrative activities of the federal state ("indirect administration of federal law by provincial administrative authorities"). However, the provinces lack an independent judiciary. The Federal Constitution defines Austria as a (bicameral) parliamentary democracy (Art. 1 B-VG). The Austrian Parliament consists of two chambers – the National Council (Nationalrat) and the Federal Council (Bundesrat), which form separate entities. Together they represent the legislative power. Jointly they form a third parliamentary body, the Federal Assembly (Bundesversammlung, Art. 38 – 40 B-VG), see below question 13) g) for its (limited) responsibilities.
The National Council (Art. 24 – 33 B-VG) is responsible for proposing, deliberating, and passing laws. As an institution directly elected by the people, it also has important control functions: by addressing specific questions to the Federal Government, the National Council exercises control over it and may even deny the Government, or individual members of it, its confidence and in this way force them to step down.
Jointly with the National Council, the Federal Council (Art. 34 – 37 B-VG) exercises the legislative power at federal level. It can raise objections to legislative decisions of the National Council (suspensive veto). In the majority of cases the Federal Council cannot prevent legislation but only delay it. There are, however, some matters on which the Federal Council has an absolute veto (see below question 13) ii)). It is also referred to as the Chamber of Provinces. Its members are delegated by the provincial parliaments of the nine federal provinces.
The Federal President (Art. 60 – 68 B-VG) and the Government jointly form the head of the federal administration. The Federal President is elected by a direct popular vote for a six-year term. Beside other responsibilities he/she is commander-in-chief of the armed forces, appoints the Federal Chancellor, has the power to dismiss the Government, dissolve the National Council and reject proposed ministers.
The Government (Art. 69 – 78 B-VG) – which is appointed by the Federal President – comprises the Federal Chancellor, the Vice Chancellor and the Ministers. It heads, determines and supervises political life internally and externally. Passing laws is the task of Parliament, not the Government. So the Federal Government needs majorities in the National Council who support them and vote for them. The Government can submit legislative proposals as bills to the National Council.
After expiry of the legislative period of a Provincial Parliament or after its dissolution the members delegated by it to the Federal Council remain in office until such time as the new Provincial Parliament has held the election to the Federal Council (Art. 35 para. 3 B-VG).
Art. 34 B-VG: The provinces are represented in the Federal Council in proportion to the number of nationals in each province. The province with the largest number of citizens delegates twelve members, every other province as many as the ratio in which its nationals stand to those in the first-mentioned province, with remainders which exceed half the coefficient counting as full. Every province is however entitled to a representation of at least three members. A substitute will be appointed for each member. The number of members to be delegated by each province accordingly will be laid down after every general census by the Federal President.
Concerning members of the Federal Council there are no specific provisions regarding professions, ethnic, age or other similar categories.
Since the members of the Federal Council are delegated by the provincial parliaments, they are usually members of political parties. Art. 35 para. 2 B-VG states that they do not need to belong to the provincial parliament which delegates them.
No, there´s no imperative mandate or any similar practice. Art. 56 para. 1 B-VG states that the members of the National Council and the members of the Federal Council are bound in the exercise of their function by no mandate.
Art. 35 para. 3 B-VG: After expiry of the legislative period of a Provincial Parliament or after its dissolution the members delegated by it to the Federal Council remain in office until such time as the new Provincial Parliament has held the election to the Federal Council.
The legislative period respectively the tenure of the members of the Federal Council do not coincide with those of the National Council, whose members are directly elected by the Austrian citizens every five years.
The Federal Council cannot be dissolved. Moreover, the provisions of Art. 34 and 35 B-VG (composition and delegation of the members of the Federal Council) can only be amended – apart from the majority of votes requisite in general to the adoption of a resolution there – if in the Federal Council the majority of the representatives from at least four provinces have approved the amendment (Art. 35 para. 4 B-VG).
Free mandate: Art. 56 para. 1 B-VG states that both – the members of the National Council and the members of the Federal Council – are bound in the exercise of their function by no mandate.
Immunity:
National Council:
Art. 57 B-VG:
(para. 1) The members of the National Council may never be made responsible for votes cast in the exercise of their function. They may be made responsible on the grounds of oral or written utterances made in the course of their function only by the National Council; this does not apply to prosecution by authorities because of defamation or an offence punishable under the Federal Act on the Information Rules of the National Council and the Federal Council.
(para. 2) The members of the National Council may on the ground of a criminal offence – the case of apprehension in the act of committing a crime excepted – be arrested only with the consent of the National Council. Domiciliary visitations of National Council members likewise require the consent of the National Council.
(para. 3) Legal action on the ground of a criminal offence may otherwise without the consent of the National Council be taken against members of the National Council only if it is manifestly not connected with the political activity of the member in question. The authority concerned must however seek a decision by the National Council on the existence of such a connection if the member in question or a third of the members belonging to the standing committee entrusted with these matters so demands. Every act of legal process shall in the case of such a demand immediately cease or be discontinued.
(para. 4) In all these instances the consent of the National Council counts as granted if within eight weeks it has not given a ruling on an appropriate request by the authority competent for the institution of legal action; the President, with a view to the National Council’s adoption of a resolution in good time, shall at the latest put such a request to the vote on the day but one before expiry of the deadline. The latter does not include the period when the National Council is not in session
(para. 5) In case of a member’s apprehension in the act of committing a crime, the authority concerned must immediately notify the President of the National Council of the occurrence of the arrest. If the National Council or when it is not in session the standing committee entrusted with these matters so demands, the arrest must be suspended or the legal process as a whole be dropped.
Federal Council:
Art. 58 B-VG: The members of the Federal Council enjoy for the whole duration of their tenure of office the immunity of the members of the Provincial Parliament which has delegated them.
Art. 96 para. 1 B-VG: The members of a Provincial Parliament enjoy the same immunity as the members of the National Council; the provisions of Art. 57 shall apply mutatis mutandis.
Conflict of interest:
The provisions concerning the conflicts of interest of members of the two chambers (National and Federal Council) coincide:
• No member of the National Council, the Federal Council or the European Parliament can simultaneously belong to one of the two other representative bodies (Art. 59 B-VG).
• While in office, the Federal President may not belong to a general representative body (Art. 61 para. 1 B-VG).
• Members of a general representative body cannot belong to the Supreme Court (Art. 92 para. 2 B-VG).
• The president of the Court of Auditors may neither belong to a general representative body (Art. 122 para. 5 B-VG).
• Members of the National Council and the Federal Council cannot belong to the Administrative Courts and the Supreme Administrative Court (Art. 134 para. 5 B-VG).
• Members of a general representative body cannot belong to the Constitutional Court (Art. 147 para. 4 B-VG).
• Ombudsman board members may belong to a general representative body (Art. 148g para. 5 B-VG).
The most important rules concerning the National Council are laid down in the Federal Constitutional Law (Art. 24 – 33 B-VG) on the one hand as well, where on the other hand additional rules can be found in ordinary law regulations: the National Council´s rules of procedure (Geschäftsordnungsgesetz 1975, GONR), BGBl. 410/1975, idF BGBl. I 141/2022. These rules are established without the participation of the Federal Council by the National Council alone (Art. 42 para. 5 B-VG: The Federal Council has no claim to participation in so far as National Council enactments concern the National Council’s rules of procedure […].)
So both provisions – the Federal Council´s rules of procedure and the National Council´s rules of procedure – are controlled by the Austrian Constitutional Court.
Beside the impacts resulting out of its legislative competence there are no specific financial powers or competences of the Federal Council.
ii) legislative
The legislative competence of the Federal Council is its most important power. The so-called suspensive veto serves as the most important function of the federal dimension of national legislation: according to Art. 42 para. 2 B-VG the Federal Council may challenge a bill proposed by the National Council. However, the National Council can override this veto by repeating a vote on the bill (Art. 42 para. 4 B-VG).
(Art. 42 para. 2 – 4 B-VG: (para. 2) Save as otherwise provided by constitutional law, an enactment can be authenticated and published only if the Federal Council has not raised a reasoned objection to this enactment. (para. 3) This objection must be conveyed to the National Council in writing by the chairman of the Federal Council within eight weeks of the enactment’s arrival; the Federal Chancellor shall be informed thereof. (para. 4) If the National Council in the presence of at least half its members once more carries its original resolution, this shall be authenticated and published. If the Federal Council resolves not to raise any objection or if no reasoned objection is raised within the deadline laid down in para 3 above, the enactment shall be authenticated and published. […])
In addition to the option of suspending federal legislation, an absolute veto is granted to the Federal Council for a limited number of cases:
• Art. 44 para. 2 B-VG grants the Federal Council an absolute veto in cases in which the provinces` legislative or executive competences are in danger of being restricted by amendments to the Federal Constitution or constitutional provisions enshrined in ordinary laws. (Art. 44 para. 2 B-VG: Constitutional laws or constitutional provisions contained in simple laws restricting the competence of the provinces in legislation or execution require furthermore the consent of the Federal Council which must be imparted in the presence of at least half the members and by a majority of two thirds of the votes cast.)
• Art. 15 para. 6 B-VG: The Federal Council has to consent if the federal law fixes a deadline for the issue of the implementing legislation which is shorter than six months or longer than one year.
• Art. 35 para. 4 B-VG: The provisions of Arts. 34 and 35 B-VG (composition and delegation of the members of the Federal Council) can only be amended – apart from the majority of votes requisite in general to the adoption of a resolution there – if in the Federal Council the majority of the representatives from at least four provinces have approved the amendment.
• Art. 50 para. 2 subpara. 2 B-VG: The consent of the Federal Council is required to the extent that a state treaty settles matters falling within the autonomous sphere of competence of the provinces.
• Art. 50 para. 4 B-VG: State treaties modifying the Treaty basis of the European Union may only be concluded with the approval of the National Council and the consent of the Federal Council. These resolutions each require the presence of at least half the members and a majority of two thirds of the votes cast.
• Art. 30a B-VG: The special protection and confidential treatment of information in relation to the National Council and the Federal Council are regulated on the basis of special federal legislation. The Federal Act on the Information Rules of the National Council and the Federal Council can be passed by the National Council only in the presence of at least half the members and by a two-thirds majority of the votes cast. Moreover, it requires the consent of the Federal Council, which must be given in the presence of at least half of the members and by a majority of two thirds of the votes cast.
iii) oversight/control
• One third of the Federal Council´s members can apply to the Constitutional Court and claim the unconstitutionality of federal or provincial laws (Art. 140 para. 1 subpara. 2 and 3 B-VG).
• Any partial revision of the Federal Constitution shall upon conclusion of the procedure pursuant to Art. 42 (Federal legislative procedure) but before its authentication by the Federal President be submitted to a referendum by the federal people if one third of the National Council or the Federal Council so demands (Art. 44 para. 3 B-VG).
iv) other specific powers, in particular as regards constitutional reforms, confidence
motions, international treaties, etc.
constitutional reforms:
• The Federal Council or one third of the Federal Council´s members can submit legislative proposals to the National Council (Art. 41 para. 1 B-VG).
• Any partial revision of the Federal Constitution shall upon conclusion of the procedure pursuant to Art. 42 above (Federal legislative procedure) but before its authentication by the Federal President be submitted to a referendum by the federal people if one third of the National Council or the Federal Council so demands (Art. 44 para. 3 B-VG).
Confidence motions:
• Art. 52 para. 1 B-VG: The National Council and the Federal Council are entitled to examine the administration of affairs by the Federal Government, to interrogate its members about all subjects pertaining to execution, and to demand all relevant information as well as to ventilate in resolutions their wishes about exercise of the executive power
• Art. 52 para. 1a B-VG: The competent committees of the National Council and the Federal Council are entitled to demand the presence of the head of an executive body being not bound by instructions pursuant to Art. 20 para 2 in the sessions of the committees and to interrogate him on all subjects of the administration of affairs.
• Art. 52 para. 3 B-VG: Every member of the National Council and the Federal Council is entitled during the sessions of the National Council and the Federal Council to address brief oral questions to members of the Federal Government.
• § 59a para. 1 GO-BR: Five Federal Council members can address a written inquiry to a member of the Federal Government with the request for information, which templates, documents, reports, informations and communications concerning specific projects of the European Union in its domain have arrived in a certain period within the last three months.
• § 66 para. 1 GO-BR: The Federal Council can decide to hold a parliamentary survey (gathering of written statements and hearing of experts and other respondants) about matters within the competence of the Federal Council based on an individual application of Federal Council´s members or a committee of it. These parliamentary surveys serve as information for the Federal Council members; no resolutions are adopted.
International treaties:
• Art. 50 para. 4 B-VG: State treaties modifying the Treaty basis of the European Union may only be concluded with the approval of the National Council and the consent of the Federal Council. These resolutions each require the presence of at least half the members and a majority of two thirds of the votes cast.
• Art. 23e para. 4 B-VG: If the Federal Council has given an opinion on a project aimed at passing a binding legal act which either requires the passing of Federal Constitutional regulations limiting the competence of the provinces in legislation and executive powers pursuant to Art. 44 para 2, or contains regulations which can only be passed by such regulations, the competent Federal Minister may in negotiations and voting in the European Union depart from this opinion only for compelling integration and foreign policy reasons. A deviation however is only admissible if the Federal Council does not object within adequate time. The competent Federal Minister shall without delay report to the Federal Council after the voting in the European Union and to eventually name the reasons for which he departed from the opinion.
• Art. 23g. para. 1 – 3 B-VG: (para. 1) The National Council and the Federal Council present their view in a founded comment to a drafted legal act in the framework of the European Union, for which reason the draft is incompatible with the subsidiarity principle. (para. 2) The National Council and the Federal Council may demand the competent Federal Minister to make a statement on the compatibility of drafts pursuant to para. 1 with the subsidiarity principle, which, in general, has to be presented within two weeks after the demand has been made. (para. 3) The Federal Council shall without delay inform the Provincial Parliaments on all drafts pursuant to para. 1 and give them the opportunity to make comments. When resolving a founded statement pursuant to para. 1, the Federal Council has to consider the comments of the Provincial Parliaments and to inform them on such resolutions.
v) interim powers (e. g. in case of dissolution of the first chamber)
The Austrian Federal Constitutional Law provides no interim powers of the Federal Council.
The Federal Council has no claim to participation in so far as National Council enactments concern the National Council’s rules of procedure, the dissolution of the National Council, a federal law providing detailed regulations on the making of the Federal finance frame law, the Federal finance law and on the household of the Federation a Federal finance law, a temporary provision consonant with Art. 51a para 4 or a disposal of federal property, the assumption or conversion of a federal liability, the contraction or the conversion of a federal monetary debt, the sanction of a final federal budget account (Art. 42 para. 5 B-VG).
For issues where the Federal Council has a suspensive or an absolute veto right see above question 13) ii) (legislative powers).
The only specific appointment that must be done solely by the Federal Council is the resolution of its rules of procedures. This resolution can only be adopted in the presence of half the members by a majority of two thirds of the votes cast (qualified majority, Art. 37 para. 2 B-VG).
The Federal Council or one third of the Federal Council´s members can submit legislative proposals to the National Council (Art. 41 para. 1 B-VG).
Members of the National Council itself can submit legislative proposals to the National Council as well: the proposal is either supported by five members of the National Council (§ 26 para. 4 GONR) or it is submitted by a Committee of the National Council (§ 27 para. 1 GONR).
The legislative process provides in general three readings and an examination and discussion in committee before an enactment of the National Council is made. Every such enactment should be conveyed to the Federal Council, which can raise a reasoned objection against it (Art. 42 para. 1 and 2 B-VG; suspensive or absolute veto, see above question 13) ii)). In cases of a suspensive veto the National Council can nevertheless carry its original resolution. In this case the National Council has to deliberate once more on its enactment (Art. 42 para. 4 B-VG). In so doing it can reiterate its original decision on condition that at least one half of its Members are present. This "insistence" is final, and the Federal Council cannot object to it any more – it can thus only delay final enactment (suspensive veto). Should the National Council react to the Federal Council’s objection by amending its enactment, the modified text will again be transmitted to the Federal Council for scrutiny.
However, a mixed commission (composed of National and Federal Council members) does not meet in these proceedings.
Drafts are submitted to the National Council first (Art. 41 para. 1 B-VG).
No, there is no specific responsibility of the government towards the Federal Council. The members of the government are responsible to the National Council (Art. 76 para. 1 B-VG).
(Art. 76 para. 1 B-VG: Pursuant to Art. 142, the members of the Federal Government (Arts. 69 and 71) are responsible to the National Council.
Art. 69 para. 1 B-VG: The Federal Chancellor, the Vice-Chancellor and the other Federal Ministers are entrusted with the highest administrative business of the Federation in so far as this is not assigned to the Federal President. They constitute as a body the Federal Government under the chairmanship of the Federal Chancellor.
Art. 71 B-VG: Should the Federal Government have left office, the Federal President shall entrust members of the outgoing Government with continuation of the administration and one of them with the chairmanship of the provisional Federal Government. A State Secretary attached to an outgoing Federal Minister or a senior civil servant in the Federal Ministry concerned can likewise be entrusted with continuation of the administration. This provision applies analogously if individual members of the Federal Government have left office. Whoever is entrusted with continuation of the administration bears the same responsibility as a Federal Minister (Art. 76).
Art. 142 para. 1- 2 B-VG: (para. 1) The Constitutional Court pronounces on suits which predicate the constitutional responsibility of the supreme federal and provincial functionaries for legal contraventions culpably ensuing from their official activity. (para. 2) Suit can be brought: […] b) against members of the Federal Government and the authorities placed with regard to responsibility on an equal footing with them, for contravention of the law: by a vote of the National Council; […])
Only a few decisions are taken by a joint meeting of the National and the Federal Council (= Federal Assembly, Bundesversammlung):
• The affirmation/inauguration of the Federal President (Art. 38 para. 1 B-VG).
• The adoption of a resolution on a declaration of war (Art. 38 para. 1 B-VG).
• The decision if a referendum regarding the deposition of the Federal President should be held (Art. 60 para. 6 B-VG: Before expiry of the term of office the Federal President can be deposed by referendum. The referendum shall be held if the Federal Assembly so demands. The Federal Assembly shall for this purpose be convened by the Federal Chancellor if the National Council has adopted such a motion. The decision of the National Council requires the presence of at least half the members and a majority of two thirds of the votes cast. […]).
• The decision if the Federal President should be prosecuted for a specific action (Art. 63 para. 1 and 2 B-VG: (para. 1) Legal prosecution of the Federal President is only admissible if the Federal Assembly has accepted it. (para. 2) The application for legally prosecuting the Federal President shall be filed by the competent authority with the National Council which votes whether to bring the matter before the Federal Assembly. If the National Council pronounces in favour of this, the Federal Chancellor shall immediately convene the Federal Assembly.)
• The decision if the Federal President should be impeached for a violation of the Federal Constitution before the Constitutional Court (Art. 68 B-VG in conjunction with Art. 141 and Art. 142 B-VG:
Art. 68 B-VG: (para. 1) Pursuant to Art. 142, the Federal President is responsible to the Federal Assembly for the exercise of his functions. (para. 2) To assert this responsibility, the Federal Assembly shall on the vote of the National Council or the Federal Council be convoked by the Federal Chancellor. (para. 3) The presence of more than half the members of each of the two representative bodies and a majority of two thirds of the votes cast is requisite to a vote whereby a charge, consonant with Art. 142, is preferred against the Federal President. […]
Art. 141 B-VG: (para. 1) The Constitutional Court pronounces upon […] d) application by the Federal Assembly for loss of seat by the Federal President. […]
Art. 142 B-VG: (para. 1) The Constitutional Court pronounces on suits which predicate the constitutional responsibility of the supreme federal and provincial functionaries for legal contraventions culpably ensuing from their official activity. (para. 2) Suit can be brought: a) against the Federal President, for contravention of the Federal Constitution: by a vote of the Federal Assembly; […].)
The Federal Council alone has no specific role in emergency situation, but jointly with the National Council (Federal Assembly) it has the competence to adopt a resolution on a declaration of war (Art. 38 para. 1 B-VG, see question 13) g) above).