The Republic of Austria is a state – which means that it has a state territory and a state people which are both subject to a state power. The definition of what is a state is taken from international law. It also provides that, as a state, Austria has the capacity to negotiate and contract with other states at an international level. As part of the international community, Austria is obliged to comply with international law – such as the European Convention on Human Rights or the Geneva Convention relating to the Status of Refugees. Austria is not free to decide on its own in these matters.
This holds true in particular for the Republic of Austria as a member of the European Union (EU) (see the text on Austria in a Global Context). Jointly with other member states, Austria participates in EU decision-making and is responsible for ensuring compliance with European law.
Whereas, when dealing with „the outside world“, the state of Austria acts as a uniform entity, its internal structure is organized into different levels and components. This concerns the so-called state power, political decision-making processes and the administration.
Separation of powers – the branches of government
The German term „Staatsgewalt“ does not refer to „Gewalt“ in the usual sense of the word (i.e. „force“, or even „violence“). Rather, the term addresses the different branches of government, i.e. the spheres in which the state and its citizens may interact and in which the citizens are exposed to the influence of the state.
State theory, whose subject is the study of the functions and structures of states, distinguishes between three different branches of state power (branches of government): legislature, executive and judiciary. They are separated from one another, which is to ensure that none of these branches can accumulate too much power. A concentration of power is liable to lead to its abuse and may thus result in a restriction or even abolition of the freedom of the state’s citizens.
Depending on the matter to be regulated, legislation is enacted either on the federal (i.e. national) level or on the level of the Länder (i.e. of Austria’s nine federal states, each of which enacts legislation that is effective only for that particular federal state). Federal laws are adopted by the National Council (which is elected by the federal people in accordance with certain electoral principles). The Federal Council may raise an objection to an adopted bill, but it can only in very few cases actually prevent its final passage. The members of the Federal Council are delegated by the diets of the federal states. This is to ensure that the nine component states also have a say in federal law-making. The Federal Council has thus come to be referred to as the Länderkammer, i.e. the „chamber of the federal states“.
The legislation of the Länder is passed by the Länder diets (Landtage), i.e. the – unicameral – parliaments of the federal states.
The second branch of government is the executive power. Its function is to execute, or implement, the acts of Parliament, i.e. of the first branch. The executive branch may only act on the basis of legislation. As a rule, the functions of the executive branch are performed by organs who are „dependent“: Each of them acts only in fulfilment of the orders (directives, instructions) of the organ superordinate to him/her, and the top of the hierarchy is formed by a supreme organ, such as a federal minister or a Land government. The executive branch is organized into three levels: the federal level, the Länder and the local (municipalities) level.
The third branch, the judiciary, watches over compliance with the law on the part of the executive branch, but also on the part of individuals, e.g. in the fields of civil and criminal law. If someone commits an offence against another person, for instance by inflicting bodily injury on him or by acting towards him in a fraudulent manner, it is up to the courts to decide whether or not, and in which form, the offender is to be punished. The same holds true if somebody causes damage to somebody else: It is for the courts to decide whether or not any compensation will have to be paid. The sources of jurisdiction are the federation and the Länder.
The System of Checks and Balances
The three branches of government do, however, not stand side by side in an isolated manner, but are called upon to watch over each other. The nature of their interrelationship is that of a system of checks and balances. The judiciary reviews the acts of the legislative and executive branches. The executive branch, for its part, may only act on the basis of legislation, i.e. of acts passed by Parliament. Both the executive and the judicial branches are bound by the rules created by the legislative branch. The executive branch is separated from the judiciary in such a way as to exclude the existence of any institutions that have a dual character (executive authority and court of law). It is also not permitted for courts of law to give directions to executive authorities.
What makes the judicial branch so special is its independence, which is explicitly guaranteed by the constitution. It becomes manifest in the status of the judges, who are independent from directives of superiors and must not be removed from their positions. When judges decide, they do so on their own responsibility. Their decisions can only be changed or overturned by higher-level courts („instances“).
The system of checks and balances also provides for participation of the executive branch in matters pertaining to the judiciary. For instance when the Federal President, the head of state directly elected by the people, appoints the judges of the supreme courts. At the same time, the supreme organs of the executive branch, e.g. the federal ministers, are politically and legally accountable to the National Council and to the Federal Council. They are subject to removal from office through a vote of no confidence of the National Council. They can also be impeached before the Constitutional Court for breach of their official duties. Conviction may entail the loss of their office and even of their right to vote.
Austria as a federally organized state
Given Austria’s federal structure, state power is not only distributed between the three branches of government as described above (legislature, executive and judiciary), but also between the federal, Länder and local (municipal) levels.
The greater share of state power rests with the federal level. It is assigned the bulk of legislative competences, which means that the majority of the laws (and the most important ones) are passed by the federal Parliament. Criminal law, school, transport, police and numerous economic matters are regulated by uniform national legislation. The ordinary courts of law (which deal with disputes between individuals and with criminal matters) and to a large extent also the country’s administration are likewise organised in a nationwide uniform manner.
The Länder also have certain legislative competences, but their main function is administrative. Each federal state also has an administrative court which adjudicates on disputes over administrative matters.
The federal constitution lays down in detail which matters are to be settled on the federal level and which come under the authority of the Länder. This distribution of powers is binding on both levels; legislation passed in contravention of it is unconstitutional. Unconstitutional laws are liable to be annulled by the Constitutional Court – a supreme court with specific functions that has nationwide jurisdiction.
The municipalities – the third level of the federal structure – are merely administrative bodies. They have no legislative competences. Municipalities are so-called self-governing bodies, which means that they act independently – i.e. are not bound by directives from the federal and Länder levels – in several important fields. To ensure compliance with the legislative provisions in force, their acts are, however, subject to review by supervisory authorities.
As described above, all three branches of government are bound by specific interdependencies and constraints. Compliance with them is open to review by the respective supervisory bodies.