Chapter V. Self administration
- In so far as in the following Articles the term municipality is used, the reference is to be taken as meaning local community.
- Save as competence on the part of the Federation is expressly stipulated, Land legislation shall prescribe laws pertaining to municipalities in accordance with the principles of the Articles contained in this Section. Competence for the settlement of matters which, pursuant to Arts. 118, 118a and 119, are to be performed by the municipalities including an eventual exclusion of appeal will be determined in accordance with the general provisions of this Federal Constitutional Law.
- The Austrian Association of municipalities (Austrian Communal Federation) and the Austrian Association of Cities and Towns (Austrian Municipal Federation) are competent to represent the interests of the municipalities.
- Every Land is divided into municipalities. The municipality is a territorial corporate body entitled to self-administration while being at the same time an administrative local district. Every piece of land must form part of a municipality.
- The municipality is an independent economic entity. It is entitled, within the limits of the general laws of the Federation and the Laender, to possess assets of all kinds, to acquire and to dispose of such at will, to operate economic enterprises as well as to manage its budget independently within the framework of the constitutional finance provisions and to levy taxation.
- A municipality with at least 20,000 inhabitants shall at its own request, if Land interests are not thereby jeopardized, be awarded its own charter by way of Land legislation (town charter). Such an enactment may only be published with Federal Government approval. This shall be deemed given if the Federal Government within eight weeks from the day of the enactment’s arrival at the competent Federal Ministry has not informed the Governor that the approval is refused. A town with its own charter shall perform besides its municipal administrative duties also those of the district administration.
- (Note: Repealed by F.L.G. No. 490/1984)
- For the performance of their matters municipalities can by agreement associate in municipality associations. Such an agreement requires the sanction of the supervisory authority. The sanction shall be conferred by ordinance if a lawful agreement between the municipalities concerned is on hand and the formation of the municipal association
- does not in the case of performance of matters appurtenant to the sovereign administration jeopardize the function of the municipalities concerned as self-administrative corporate bodies,
- in the case of performance of matters appurtenant to the municipalities as holders of private rights it lies for reasons of expediency, economic efficiency, and thrift in the interest of the municipalities concerned.
- In the interest of expediency the competent legislation (Arts. 10 to 15) can provide for the performance of matters in the sphere of competence of the municipality by the formation of municipal associations, but the function of the municipalities as self-administrative corporate bodies and administrative local districts may not thereby be jeopardized. The municipalities concerned shall by way of an executive measure be given a hearing prior to the formation of municipal associations.
- The organs of the municipal associations which are to undertake matters pertaining to the municipality’s own sphere of competence are to be formed according to democratic principles.
- The Land legislature shall prescribe the organization of the municipal association and in this connection it shall provide for an association board, which must in any case consist of elected representatives from all member municipalities, and an association chairman. Rules shall moreover be established, in the case of municipal associations formed by agreement, as regards admission to and withdrawal from the municipal association as well as its dissolution.
- Competence as to the regulation of matters to be undertaken by the municipal associations is governed by the general provisions of this Federal Constitutional Law.
- The merger of municipalities of different Laender to municipal associations is permitted under the proviso of an agreement between the respective Laender according to Article 15a, in which mainly provisions on the approval of the formation of municipal associations and the implementation of supervision must be contained.
Municipalities of a Land may conclude agreements among each other on their respective sphere of competence, to the extent, Land legislature so provides. Doing so, Land legislature also has to provide provisions on the publication of such agreements as well as on the solution of disagreements. Article 116a para 6 applies accordingly to the agreements of municipalities of different Laender.
- The authorities of the municipality shall in every instance include:
- the municipal council, being a general representative body to be elected by those entitled to vote in the municipality;
- the municipal executive board (city council), or in towns with their own charter the city senate;
- the mayor.
- The municipal council is elected on the basis of proportional representation by equal, direct, personal and secret suffrage by the male and female Federal nationals who have their principal domicile in the municipality. The election regulations laws can however stipulate that also nationals who have a domicile, but not their principal domicile, in the municipality, are entitled to vote. In the electoral regulations the conditions for suffrage and electoral eligibility may not be more restrictive than in the electoral regulations for the Diet; the provision can however be made that individuals who have not yet been a year resident in the municipality shall not be entitled to vote or to stand for election to the municipal council if their residence in the municipality is manifestly temporary. Among the conditions to be laid down by the election regulation is the entitlement to suffrage and electoral eligibility also for nationals of other European member states. The electoral regulation can provide that the voters exercise their suffrage in self-contained constituencies. . A division of the electorate into other electoral bodies is not admissible. Article 26 para 6 is to be applied accordingly. The electoral regulations can, in cases where no election proposals are brought forward, decree that individuals shall be deemed elected whose names appear most frequently on the ballot papers.
- A simple majority by members present in sufficient numbers to form a quorum is requisite to a vote by the municipal council; for certain matters, though, other requirements for the adoption of resolutions can be provided.
- Meetings of the municipal council are public, but provision can be made for exceptions. The public may not be excluded when the municipal budget or the municipal final accounts are on the agenda.
- Electoral parties represented in the municipal council have a claim to representation on the municipal executive board in accordance with their strength.
- The mayor shall be elected by the municipal council. Land constitution can however stipulate that the mayor shall be elected by those with municipal council suffrage. In this case Article 26 para 6 is to be applied accordingly.
- The business of the municipalities will be performed by the local administrative office (city administrative office), that of towns with their own charter by the City administration. A civil servant with legal training shall be appointed to take charge as city administration’s chief executive of the City administration’s internal services.
- The Land legislature can in matters pertaining to the municipality’s own sphere of competence provide for the direct participation and assistance of those entitled to vote in the municipal council election.
- A municipality has its own sphere of competence and one assigned to it either by the Federation or the Land.
- Its own sphere of competence comprises, apart from the matters mentioned in Article 116 para 2, all matters exclusively or preponderantly the concern of the local community as personified by a municipality and suited to performance by the community within its local boundaries. Legislation shall expressly specify matters of that kind as being such as fall within the municipality’s own sphere of competence.
- A municipality is guaranteed official responsibility in its own sphere of competence for performance of the following matters in particular:
- appointment of the municipal authorities, notwithstanding the competence of election boards at a higher level; settlement of the internal arrangements for performance of the municipal functions;
- appointment of the municipal staff and exercise of the service prerogative over them, notwithstanding the competence of disciplinary, eligibility, and exam commissions at a higher level;
- local public security administration (Article 15 para 2), local events control;
- administration of municipal traffic areas, local traffic police;
- crops protection police;
- local market police;
- local sanitary police, especially in the field of emergency and first aid services as well as matters pertaining to deaths and interment;
- public decency;
- local building police; local fire control; local development planning;
- public services for extra-judicial settlement of disputes;
- voluntary sale of movables.
- The municipality shall perform the business for which it is competent within the framework of the laws and ordinances of the Federation and the Land on its own responsibility free from instructions and under exclusion of legal redress to administrative authorities outside the municipality. In the matters of the own sphere of competence there is a two-stage channel of appeal; this can be excluded by law. In matters of the own sphere of competence the Federation and the Land have a right of supervision over the municipality (Article 119a).
- The mayor, the members of the municipal executive board (city council, city senate) and, if appointed, other municipal officials are responsible to the municipal council for the performance of their functions relating to the municipality’s own sphere of competence.
- The municipality is entitled in matters pertaining to its own sphere of competence to issue on its own initiative local police ordinances for the prevention of imminently to be expected or existent nuisances interfering with local communal life as well as to declare non-compliance with them an administrative contravention. Such ordinances may not violate existent laws and ordinances of the Federation and Land.
- On application by a municipality the performance of certain matters in its own sphere of competence can, in accordance with Article 119a para 3, be assigned by ordinance of the Land Government or by ordinance of the Governor to a state authority. In so far as such an ordinance is meant to assign competence to a Federal authority, it requires the approval of the Federal Government. In so far as such an ordinance by the Governor is meant to assign competence to a Land authority, it requires the approval of the Land Government. Such an ordinance shall be rescinded as soon as the reason for its issue has ceased. Assignment does not extend to the right to issue ordinances in accordance with para 6 above.
- The establishment of a municipal constabulary or a change in its organization must be notified to the Federal Government.
- Federal or Land law may provide that with the approval of the municipality the members of a municipal constabulary may be empowered to perform executive services for the competent authority.
- With the approval of the municipality, the district administrative authority may empower members of a municipal constabulary to participate in the application of administrative penal law to the same extent as the other organs of the public safety service. This mandate can be issued only to the extent to which the organs of the public safety service have to supervise the compliance with the administrative regulations in the matter that constitutes the subject of the administrative penal proceedings or to the extent to which this matter falls into the municipality’s sphere of competence.
- The assigned sphere of competence comprises those matters which the municipality in accordance with Federal laws must undertake at the order and in accordance with the instructions of the Federation or in accordance with Land laws at the order and in accordance with instructions of the Land.
- The business of the assigned sphere of competence is performed by the mayor. In doing so, he is in matters pertaining to Federal execution bound by instructions from the competent Federal authorities, in matters pertaining to Land execution by instructions from the competent Land authorities; he is responsible in accordance with para 4.
- The mayor can – without detraction from his responsibility – on account of their factual connection with matters pertaining to the municipality’s own sphere of competence transfer individual categories of matters pertaining to the assigned sphere of competence to members of the municipal executive board (city council, city senate), other authorities created in accordance with Article 117 para 1 or members of official bodies for performance in his name. In these matters the authorities concerned or their members are bound by the instructions of the mayor and responsible in accordance with para 4.
- In so far as intent or gross negligence can be laid to their charge, the authorities named in paras 2 and 3 above can on account of breach of law as well as on account of noncompliance with an ordinance or instruction be declared to have forfeited their office, by the Governor if they were acting in the field of Federal execution, by the Land Government if they were acting in the field of Land execution. Should such a person belong to the municipal council, the membership is not thereby affected.
- The Federation and the Land exercise the right of supervision over a municipality to the purpose that it does not infringe laws and ordinances in dealing with its own sphere of competence, in particular does not overstep its sphere of competence, and fulfills the duties legally devolving upon it.
- The Land has furthermore the right to examine the financial administration of a municipality with respect to its thrift, efficiency, and expediency. The result of the examination shall be conveyed to the mayor for submission to the municipal council. The mayor shall within three months inform the supervisory authority of the measures taken by reason of the result of the check.
- In so far as a municipality’s own sphere of competence comprises matters deriving from the sphere of Federal execution, the right of supervision and its legislative regulation lie with the Federation, in other respects with the Laender; the right of supervision shall be exercised by the authorities of the ordinary public administration.
- The supervisory authority is entitled to inform itself about every kind of municipal business. The municipality is bound to impart the information demanded in individual cases by the supervisory authority and to allow examination to be conducted on the spot.
- (Note: Repealed by F.L.G. I No. 51/2012)
- The municipality shall without delay advise the supervisory authority of ordinances issued in its own sphere of competence. The supervisory authority shall after a hearing of the municipality rescind ordinances which are contrary to law and simultaneously advise the municipality of the reasons.
- In so far as the competent legislature (para 3) contemplates the dissolution of the municipal council as a supervisory expedient, this measure rests with the Land Government in exercise of the Land’s right of supervision, with the Governor in exercise of the Federation’s right of supervision. The admissibility of effecting a substitution shall be confined to cases of absolute necessity. Supervisory expedients shall be applied with greatest possible consideration for third parties’ acquired rights.
- Individual measures to be taken by a municipality in its own sphere of competence but which to a special degree affect extra-local interests, particularly such as have a distinct financial bearing, can be tied by the competent legislature (para 3) to a sanction on the part of the supervisory authority. Only a state of affairs which unequivocally justifies the preference of extra-local interests may come into consideration as a reason for withholding the sanction.
- The municipality is party to supervisory authority proceedings and is entitled to lodge complaint with the Administrative Court (Article 130 to 132). It is party of the proceedings before the Administrative Court and is entitled to file for revision at the Administrative Court (Article 133) and complaint at the Constitutional Court (Article 144).
- The provisions of this Article shall find corresponding application to supervision of municipal associations in so far as these perform matters pertaining to a municipality’s own sphere of competence.
The combination of local communities into territorial communities, their establishment in line with the pattern of self-administration, and the determination of other principles for the organization of the ordinary public administration in the Laender is the business of Federal constitutional legislation; its implementation devolves upon the Land legislatures. Settlement of the competence in matters pertaining to the service code for and staff representation rights of the territorial community employees is the business of Federal constitutional legislation.
B. Other self administration
- People may be united by law to self administrating bodies to autonomously take care of public interests being in their exclusive or preponderant common interest and qualified to be handled jointly by them.
- The Republic recognizes the role of the social partners. It respects their autonomy and supports the social partners’ dialogue by instituting self administration bodies.
- The self administrating bodies are authorized to take care of their tasks in own responsibility without instructions and to render statutes in the frame of the laws. The Federation or the Land have a right of supervision over them on the basis of the legal regulations with regard to the legality of the handling of the administration. Such right of supervision may also extend to the expedience of the handling of the administration, if such is required because of the tasks of the self administrating body. By law ways of participation of the self administering bodies in the public execution maybe provided.
- Upon the self administrating bodies tasks of administration of the state may be conferred. The laws have to expressly indicate that such matters belong to the assigned executive responsibility and to provide a binding effect of the instructions by the supreme administrative authorities.
- The laws may provide forms of participation of self administering bodies in the execution of state affairs.
- The organs of the self administering bodies are to be established according to democratic principles out of its members.
- Thrifty and economical performance of the tasks of the self administrate bodies is to be safeguarded of the basis on the legal regulations by contributions of its members or other means.
- The self administering bodies are independent business entities. In the frame of the laws they may, in order to fulfill their tasks, acquire possess and dispose of all kinds of assets.