Allocation of competences in the federal state

Of all federal states in the world, Austria has the most differentiated, most complicated and most fragmented system of competences` allocation. Consisting of nearly 500 provisions, which are to a large extent enshrined in constitutional norms outside the Federal Constitutional Act, even proven experts in the field merely have a selective overview. Although the Constitutional Court has continuously been confronted with questions pertaining to the allocation of powers, a scientific review covering more than select points is lacking, while attention to these issues is visibly decreasing. Altogether, a lack of scientific interest in questions of allocation of competences is evident. The present research project aims at redressing this dissatisfying situation and exploring some of the last undiscovered areas of constitutional law. The adequate format would be a scientific commentary of the relevant constitutional provisions, which shall provide full and reliable information on jurisprudence, legal doctrine and state practice, but which shall also exceed go beyond and thus challenge this information. As regards the methodology of interpretation of the provisions on competences, the project does not intend to radically break with the so called Versteinerungstheorie, the "petrifaction theory" which prevails in Austrian constitutional science, but place it in its appropriate place. This intention necessitates more attention than usual to the wording of the fields of law in question, i.e. their origin, the teleological approach inherent in their interpretation, and to the structure of allocation of competences in general. A further advantage of the methodological approach chosen is that it allows a homogenous in-depth inquiry, which could not be attained on a purely positivist approach based on (constitutional) jurisdiction only. The project shall analyse with equitable minuteness the respective legal matters assigned to the Federation or the Laender respectively, irrespective of their (stronger or weaker) reflection in jurisdiction or legal theory. The project cannot ignore state practice precisely because the commentary shall not be based on untested jurisprudence of the Constitutional Court and the Administrative Supreme Court, but intends to evaluate jurisprudence as the epitome of practice with regard to normative criteria. The Constitutional Service of the Federal Chancellery most notably but also the Constitutional Service Offices of the Laender have abundant documents on competence matters, which are of great relevance for the process of legislation in the Federation and the Laender, but which are only accessible to a small circle of informed persons. It is per se a worthwhile task to make at least parts of this material accessible to a larger public. Since such documents exist even pertaining to matters which have until now been neglected in jurisdiction and legal doctrine, their consideration will help to contribute to a more homogenous level of analytical depth.

Of all federal states in the world, Austria has the most differentiated, most complicated and most fragmented system of competences` allocation. Consisting of nearly 500 provisions, which are to a large extent enshrined in constitutional norms outside the Federal Constitutional Act, even proven experts in the field merely have a selective overview. Although the Constitutional Court has continuously been confronted with questions pertaining to the allocation of powers, a scientific review covering more than select points is lacking, while attention to these issues is visibly decreasing. Altogether, a lack of scientific interest in questions of allocation of competences is evident. The present research project aims at redressing this dissatisfying situation and exploring some of the last undiscovered areas of constitutional law. The adequate format would be a scientific commentary of the relevant constitutional provisions, which shall provide full and reliable information on jurisprudence, legal doctrine and state practice, but which shall also exceed go beyond and thus challenge this information. As regards the methodology of interpretation of the provisions on competences, the project does not intend to radically break with the so called Versteinerungstheorie, the "petrifaction theory" which prevails in Austrian constitutional science, but place it in its appropriate place. This intention necessitates more attention than usual to the wording of the fields of law in question, i.e. their origin, the teleological approach inherent in their interpretation, and to the structure of allocation of competences in general. A further advantage of the methodological approach chosen is that it allows a homogenous in-depth inquiry, which could not be attained on a purely positivist approach based on (constitutional) jurisdiction only. The project shall analyse with equitable minuteness the respective legal matters assigned to the Federation or the Laender respectively, irrespective of their (stronger or weaker) reflection in jurisdiction or legal theory. The project cannot ignore state practice precisely because the commentary shall not be based on untested jurisprudence of the Constitutional Court and the Administrative Supreme Court, but intends to evaluate jurisprudence as the epitome of practice with regard to normative criteria. The Constitutional Service of the Federal Chancellery most notably but also the Constitutional Service Offices of the Laender have abundant documents on competence matters, which are of great relevance for the process of legislation in the Federation and the Laender, but which are only accessible to a small circle of informed persons. It is per se a worthwhile task to make at least parts of this material accessible to a larger public. Since such documents exist even pertaining to matters which have until now been neglected in jurisdiction and legal doctrine, their consideration will help to contribute to a more homogenous level of analytical depth.