1. INTRODUCTION

In legal systems organised on the basis of the separation of powers, the fundamental principle is that Montesquieu’ As follows – state power is divided amongst various state organs: one set of organs is responsible for law-making (the „legislative branch“), whilst another set of organs is responsible for enforcing those laws (the „executive branch“). The value of this division lies in the fact that those state bodies which enact laws are not permitted to enforce them, whilst those state bodies responsible for enforcing laws are not permitted to enact them. This division of functions establishes a system of mutual checks and balances designed to structurally safeguard the freedom of the individual („checks and balances“).

The „executive“ is divided into the judiciary and the administration: In the „judiciary“, laws are enforced by authorities endowed with the „three judicial guarantees of the Federal Constitution“ (independence = freedom from instructions, irremovability, and non-transferability); in the „administrative“ branch, laws are enforced by authorities which may lack even just one of the three judicial guarantees (because, for example, they are not free from instructions). Such authorities are referred to as „administrative authorities“. Any state authority that is not a court is therefore necessarily an administrative authority.

2. TYPES OF ADMINISTRATION

The structure of the administration is organised differently under our Federal Constitution: depending on the local authority to which they are organisationally assigned, a distinction can be made between federal, state and local administrative authorities. In a functional sense, however, it may be the case that, for example, administrative authorities that are organisationally assigned to a state must carry out tasks of the federal administration (so-called „indirect federal administration“) or that local administrative authorities (mayors, local councils) may have to administer tasks of the federal or state government („delegated sphere of responsibility“). The rationale behind these regulations is the realisation that setting up administrative organisations is costly. Parallel structures should therefore be avoided wherever possible. For this reason, the Federal Constitution provides that, under certain circumstances, the tasks of one local authority are to be „carried out in conjunction with“ the – already existing – authorities of another local authority.

3. SELF-GOVERNANCE

One distinctive feature is „self-government“. This is based on the idea of a decentralised system of administration that is as tailored as possible: the laws are to be enforced by the very people who are affected by them. This enforcement of the law is to take place „outside“ the actual federal or state administration: A The defining feature of self-government is therefore its independence from the instructions of other administrative authorities.

Today, three main areas of self-government can be distinguished: territorial self-government (municipalities) and non-territorial (or, more accurately, personal) self-government, the latter of which can in turn be subdivided into professional self-government (chambers of commerce; chambers of labour; chambers of agriculture; chambers of the liberal professions, such as doctors or lawyers) and social self-government (social insurance institutions, the Austrian Social Insurance Association).

Whilst territorial self-government was already enshrined in the 1920 Federal Constitutional Law (B-VG) (see Article 115 et seq. of the B-VG), it remained a matter of dispute for decades as to whether the various forms of non-territorial self-government established by the ordinary legislature over the decades were constitutionally permissible. This was because administration is characterised by the obligation to follow instructions. However, as the „rule on instructions“ in Article 20(1) of the B-VG makes no exception for non-territorial self-governing authorities, only territorial self-government (as provided for in the B-VG) was, in any event, constitutionally unobjectionable. The Constitutional Court has untangled this „Gordian knot“ of the constitutional legitimacy of non-territorial self-government in its leading case „Salzburg Hunters“ Association„ (VfSlg 8215) resolved with a masterful legal argument: The constitutional legislator was already familiar with the phenomenon of self-government in 1920 “as an organisational technique„; the fact that it only expressly regulated municipal self-government was because it wished to “guarantee, but not constitute„ it. Self-governing bodies may therefore be established by ordinary law, because self-government “falls within the framework of the organisational plan of the Federal Constitution„. Despite this – unambiguous – legitimisation, the constitutional legislator, in Federal Law Gazette I 2/2008 under the heading “Other Forms of Self-Government„, enacted Articles 120a to 120c of the Federal Constitutional Act (B-VG), thereby creating an explicit constitutional basis for our “chamber state’ ….

If these provisions are followed, then the ordinary legislature may „group persons … by law into self-governing bodies for the independent performance of public tasks which lie in their exclusive or predominant common interest and are suitable for joint performance by them“ (Article 120a(1) of the Federal Constitutional Act). The defining characteristics of this non-territorial self-government are therefore legal personality (see „persons“), compulsory membership (as indicated by „may be grouped together“), the performance of administrative tasks (as indicated by „public tasks“), group-based nature (as indicated by „in their exclusive or predominant common interest“) and efficiency (as indicated by „are suitable“).

Such self-governing bodies are entitled to „carry out their duties on their own responsibility, free from instructions“ (Article 120b of the Federal Constitutional Law). This freedom from instructions – which is guaranteed by the Constitution (Article 120b, first sentence, of the Federal Constitutional Law) – is, of course, accompanied by a right of supervision on the part of the State – which is likewise guaranteed by the Constitution (Article 120b, second sentence, of the Federal Constitutional Law). There must therefore be no self-government without state supervision!

As part of the administration, tasks of state administration may be delegated to self-governing bodies („delegated sphere of activity“; Article 120b(2) of the Federal Constitutional Act (B-VG)). In these areas, the organs of the self-governing bodies are bound by instructions from state organs; Local authorities therefore enjoy freedom from instructions only within their „own sphere of activity“. Finally, it is essential that local authorities „shall form their bodies … from among their members in accordance with democratic principles“ (Article 120c(1) of the Federal Constitutional Act).

For some of those „burdened by chamber fees“, it may also be significant that self-governing bodies are required to ensure the „thrifty and economical fulfilment“ of their duties through their members’ contributions. The wording may seem revealing: it does not, in fact, oblige self-governing bodies to carry out their duties in a frugal and economical manner, but rather authorises them to finance the frugal and economical fulfilment of their duties – which is evidently regarded as a given – through compulsory contributions from their members ….

Since the constitutional legitimisation of non-territorial self-government by Federal Law Gazette I 2/2008, the legal – but not the legal-policy – debate on the admissibility or appropriateness of self-government has subsided. This is unjustified: it is widely overlooked that the Constitutional Court regards Articles 120a to 120c of the Federal Constitutional Act (B-VG) as a codification of its case law on self-governing bodies up to that point, meaning that the principles established in that case law must continue to be relied upon for interpretative purposes (Constitutional Court Decisions 18.731, 19.017). The establishment of any self-governing body must therefore continue to comply, in particular, with the requirement of objectivity; self-governing bodies established in an unobjective manner (e.g. the grouping of persons who have no common interests; inefficient self-government) may thus be unconstitutional.

4. TO PUT IT INTO A NUTSHELL

Local self-government is a specific branch of public administration: here, laws are implemented by decentralised administrative authorities which are independent of central government directives and which – within the limits laid down by law – establish, organise and finance themselves. Constitutionally, only local self-government was originally expressly regulated; non-territorial self-government has only been expressly enshrined in the Federal Constitutional Act (B-VG) since 2008.

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