DER EINBAU DES EU-RECHTES IN DAS STAATLICHE RECHT – EINE BETRACHTUNG NACH DER BESCHLUSSFASSUNG DER LISSABONNER BEGLEITVERFASSUNGSNOVELLE AUS DER SICHT DER ÖSTERREICHISCHEN GESETZGEBUNG

Herbert Schambeck

Abstract


The impact of the Lisbon Treaty on the integration of EU-Law into the Austrian domestic Legal System has to be seen against the Acquis Communautaire adopted by Austria with the accession ofAustria to the European Union on January 1, 1995 (entering into force of the Accession Treaty)and further developed lateron. The amendments to the Austrian Constitution enabling Austria tobecome member of the European Union have, already at that time, provided a certain participationof the two Chambers of the Austrian parliament 

–Nationalrat (House) and Bundesrat (Senate,representing the federal states„Bundesländer“ in the Parliament) – in the decision making processregarding European Union Law projects (“Vorhaben”). Both Chambers had to be kept informed onall such projects and were empowered to give their comments to the projects; the comments by theNationalrat are binding the responsible Minister in defined cases potentially affecting existingfederal law through directives or immediately applicable acts of the European Union. In such cases, the competent Minister participating in the decision making of the EU-Council is allowed to deviate from the binding comments only under certain conditions. In certain cases, when theproject can only be implemented by an amendment to the constitution that restricts the competences of the Länder, the Bundesrat assumes similar powers. The same is true for comments submitted jointly by all Länder on projects potentially negatively affecting the scope of their constitutional powers.The Treaty of Lisbon has now re-enforced the involvement of the national parliaments in European decision making. The most important element is thereby the „subsidiarity-check” a concept that has already been discussed under the Austrian EU-presidency at the Conference on Subsidiarity in St. Pölten and the COSAC-Conference in spring 2006. These additional powers of the national parliaments have been introduced by the „Protocol on the Role of Parliaments within the EU “and the „2. Protocol on the  pplication of the Principles of Subsidiarity and Proportionality."These include an obligation for the EU-institutions to inform the national parliaments,the power of national parliaments to carry out a subsidiarity-check including the possibility to give a„reasoned opinion“ and, eventually, the use of an alarm bell (“yellow card”) orblocking procedure (“orange card”). It also provides the possibility for every national parliament to ask its government to bring the case before the European Court of Justice. The national parliaments also play a role in the possibility to block the use of the a so called „passarelle”-initiatives (possibility to use majority rule and passing from the special to the ordinary law making procedure), also introduced by the Lisbon Treaty. The respective procedure in Austria has been backed by amendments of the Austrian constitutional law, in particular by Art. 23 (i) of the Austrian federal constitution.This re-enforcement of the role of the parliaments constitutes an important element ensuring higher democratic legitimacy for the different procedures designed to ensure a more efficient decision making as well as for the new powers transferred to the EU institutions.

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