II. The Sanctions by 14 EU Member States Against Austria

At the end of January 2000 Belgium sent a note to the Portuguese presidency of the EU Council demanding joint action by the 14 EU Member States against the coalition government that was in the process of formation in Austria. On 31 January 2000 the Portuguese presidency of the EU Council issued a Declaration on behalf of XIV Member States in the following terms:

* "Governments of XIV Member States will not promote or accept any bilateral official contacts at political level with an Austrian Government integrating the FPÖ.

Following this statement, the European Commission stated on 1 February, inter alia:

"At this stage the work of the European institutions is not affected. In this context the Commission, in close contact with the Governments of the Member States, will follow the situation carefully, maintaining its working relations with the Austrian authorities".

The sanctions threatened by the 14 governments took effect with the swearing-in of the new Austrian Federal Government on 4 February. This action was taken despite the fact that on 3 February the leaders of the Austrian People's Party (ÖVP) and the Freedom Party of Austria (FPÖ) had signed a Preamble to the government's programme with the title "Responsibility for Austria - A Future in the Heart of Europe", which began with the words:

"The Federal Government reaffirms its unswerving adherence to the spiritual and moral values which are the common heritage of the peoples of Europe and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of any genuine democracy."

The Federal Government also declared its commitment to the European peace project and to Austria's membership of the European Union as the basis of the cooperation between the coalition parties. In this respect it declared:

"The Federal Government is bound by those principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law which, under Article 6 of the Treaty of the European Union, are common to all member states of the European Union."

Norway and the Czech Republic expressly participated in the sanctions, while other European countries applied them without formal declarations. On the other hand, Liechtenstein, Switzerland, Slovakia, Slovenia and Hungary declined to take part. A number of German federal Länder adopted a noticeably independent and friendly attitude towards Austria. Israel was the only state to withdraw its ambassador from Vienna. As for the rest of the non-European states, Argentina confined bilateral contacts to a "strictly technical level". Costa Rica expressly joined in the sanctions against Austria. Canada took the same action formally, but in practice diverged from the common line. The United States restricted itself to recalling its ambassador for periodical reports.

Austria's Reaction and Activities at European Level

The action taken by these fourteen governments against another EU Member State was unique in the history of European integration. The Austrian federal Government reacted with a clear and decisive rejection of these undemocratically instigated sanctions, which were not justified by facts within Austria, and demanded their immediate withdrawal.

As the Federal Ministry for Foreign Affairs put it in a statement on 1 February, the actions of the 14 EU partner countries were a breach of the spirit of solidarity and cooperation that is supposed to prevail between EU Member States. As a direct reaction, the Austrian diplomatic representatives were supplied with information material for use within the countries of their accreditation, and an intensive dialogue was opened with the public there. The success of this campaign was indicated by opinion polls in the leading countries, which indicated that public opinion was opposed to the sanctions.

During the first phase of the sanctions, Austria was faced with disadvantages and boycott measures which exceeded the sanctions announced on 31 January. In several Member States, there were calls for the Austrian Government to be overthrown. The reduction of bilateral contacts to a purely technical level meant that Austria was not fully included in the - often informal - decision-shaping process at EU level and was correspondingly disadvantaged. Austrian candidates for posts in international organisations were boycotted in a discriminatory manner, sometimes even actively. Austria nevertheless succeeded by considerable effort, and with the help of the international community, in having the majority of candidates accepted.

There was particular disharmony in relations with certain EU partners: Thus, Belgium completely froze military cooperation with Austria. The mayor of Brussels at first excluded Austria from a tourism trade fair, the Belgian foreign minister called for a boycott of holidays in Austria, and the Belgian French-speaking community placed a ban on school visits there. France cancelled all events in the 2000 bilateral programme of military cooperation that could have had a public effect. Individual school and student exchange programmes in France and Belgium were cancelled. Cultural, educational and scientific cooperation also felt the effects, especially in Belgium and France, but also in Luxembourg and the Netherlands, where various cancellations of events had an apparent connection with the sanctions. The xenophobic undertones of these actions against Austrians, and their propagation of nationalist ideas, caused considerable damage to the European work of peace and unification.

Austrian Federal Chancellor Wolfgang Schüssel, Minister for Foreign Affairs Benita Ferrero-Waldner and other members of the Federal Government made numerous appearances on television and radio and gave interviews to the print media in other countries in order to present factual and objective information to clarify the distorted image of Austria. The Austrian embassies also conducted an information campaign with the aim of putting the public image of Austria onto a more objective basis.

The Federal Ministry for Foreign Affairs, in consultation with leading Austrian experts on European and international law, came to the following conclusions regarding the legal aspects of the sanctions:

1. The Statement from the Portuguese presidency of the European Council "on behalf of XIV member states" exceeded the limit of its competence, since a Presidency is not empowered to issue declarations that are not based on decisions by all Member States.

2. The declaration violated fundamental legal principles as well as the spirit of the treaties that are the foundation of the Community and the Union (see Art 2 EC Treaty: Promoting solidarity among Member States; Art 11(2) EU Treaty: Enhancing mutual political solidarity, etc.).

3. The action against Austria also violated the general legal principle of "audiatur et altera pars" and thereby the principle of fairness and objectivity that is to be expected from other Member States within the framework of the European Union. Austria was not even given an opportunity to present its own standpoint.

4. The measures also offended against international legal courtesy.

In order to expedite the earliest possible lifting of the sanctions, and on the advice of prominent experts on European law, Austria refrained from legal action (e.g. bringing an action before the European Court of Justice), the outcome of which would have been uncertain in view of the so-called "bilateral character" of the sanctions, and which in any case would have been a far too lengthy process. In so far as actions by public bodies in the Member States or EU institutions had a discriminatory effect against Austria, recourse was made to the European Commission as the "guardian of the Community treaties", and a number of successes were achieved.

At the first meeting of EU foreign ministers after the sanctions had taken effect, the General Affairs Council on 14 February, Minister for Foreign Affairs Benita Ferrero-Waldner raised the subject of the measures taken by the 14 partner countries, and made the Austrian standpoint clear. The presidency refused to permit any discussion of the subject with reference to the bilateral nature of the sanctions.

Before the meetings of the Council of Foreign Ministers and the European Council, the Austrian Chancellor and Minister for Foreign Affairs conducted intensive telephone conversations with their EU colleagues to explain the work of the Austrian Government to date. They also put this in writing on a number of occasions to heads of state and government as well as foreign ministers. They pointed out in particular that the sanctions were not only not having the desired result, but that on the contrary they were encouraging xenophobia and nationalism in Europe and thereby weakening the European work for peace. Reference was also made to the repeated acknowledgements of the European values in the Preamble to the government programme, to the European chapter of the programme with its commitment to enlargement of the Union, and also to the planned and necessary budget consolidation in the interests of Economic and Monetary Union and the strength of the Euro. The legal measures taken by the Austrian Federal Government in the interests of autochthonous ethnical minorities were also highlighted. These messages also underlined the fact that in neither word nor deed had the Federal Government ever violated European values or human rights, and that human rights in Austria - in contrast to the situation in many other countries - are legally guaranteed and actionable in the Constitutional Court.

A number of prominent personalities published a Declaration for Austria, which concluded: "This land deserves trust and dialogue - and not exclusion from the European family."

Federal Chancellor Schüssel discussed relations between Austria and the other EU members at his meeting with Portuguese Prime Minister António Guterres in Brussels on 13 March as well as at the informal meeting of the European Council in Lisbon on 23 March. He mentioned the effect of the sanctions on school pupils, students, researchers, artists and business people, and demanded a resumption of the dialogue between all 15 Member States. Prime Minister Guterres declared in the name of the 14 states that the rights of Austria and the Austrian citizens must be protected and appealed to the Member States to refrain from actions having an effect on Austrian civil society.

Austrian Federal President Thomas Klestil visited the European Commission on 8 March and the European Parliament on 12 April, where in his speech he made an appeal "not to lose sight of the principles of objectivity and fairness, and to seek and find a way out of the current situation." The President of the European Parliament, Nicole Fontaine, expressed the hope "that Austria will be able to become a full member of our Union once more". This statement, which was later described as a misunderstanding, aroused considerable displeasure in Austria, where it was regarded as a deliberate provocation.

In Austria itself the Federal Government made several unsuccessful attempts to have a joint resolution against the sanctions adopted by all four parties represented in Parliament. The main reason for the failure of these efforts was that the Opposition was only ready to condemn the boycott measures against the Austrian population, while regarding the sanctions against the Government as justified. The Austrian people, however, did not follow this differentiation, which was also the attitude of the 14 EU states, and regarded themselves as directly affected and unjustifiably discriminated against by the sanctions.

Although the parliamentary Opposition declined to support a joint defence against the sanctions, the Conference of Länder Governors (in which all three major parliamentary parties are represented) on 17 May issued a joint declaration which stated that the Conference "expressly supports the diplomatic and political efforts by the Federal Government and expects that these will lead to the lifting of the sanctions. The federal Länder are supporting these efforts through their own contributions at regional level." The Conference also demanded that the sanctions should be replaced by "a transparent system of mutual understanding and respect that should apply to all members." The legislatures of Carinthia, Styria, Tyrol, Salzburg, Vorarlberg and Upper Austria adopted resolutions demanding that their respective Länder governments should actively work for the lifting of what they described as the unjustified and undemocratically imposed sanctions.

Since, however, there was still no sign that the 14 states were prepared to redefine their attitude after three months of intensive Austrian efforts, the Federal Government on 5 May adopted an "Action Programme for the Lifting of the Sanctions" in order to defend Austrian interests: national and international opinion polls, a "diplomatic offensive" to inform the opinion leaders and general public throughout Europe, a proposal to redraft Art 7 of the EU Treaty to be discussed by the Intergovernmental Conference, and a national referendum in Austria in the event that, by the end of the Portuguese EU presidency on 30 June, there existed no concrete plan for the lifting of the sanctions.

At the informal meeting of foreign ministers in the Azores on 6/7 May, the Federal Minister for Foreign Affairs, Benita Ferrero-Waldner, succeeded for the first time in launching a general discussion on the sanctions. Several Member States indicated then that they would be prepared to consider an "exit scenario" for domestic political reasons and lack of understanding for the sanctions among their populations as well as in consideration of the Austrian arguments and the patent lack of effect that the measures had had.

In a resolution addressed to the European Council of Feira on 19/20 June, the European Parliament asked the Council presidency "to evaluate relations between 14 Member States and Austria, and to develop, with all the parties in the EU concerned, a procedure that will lead to an acceptable solution."

Finally, on 29 June, the Portuguese Prime Minister - again in the name of the 14 Member States - asked Luzius Wildhaber, President of the European Court of Human Rights, to nominate three personalities to draw up a report on the Austrian Government's observance of the common European values, in particular the rights of minorities, refugees and immigrants, as well as "the development of the political nature of the Freedom Party of Austria".

Luzius Wildhaber, after obtaining Austrian agreement to this procedure, on 12 July issued a mandate to Martti Ahtisaari, former President of Finland, Jochen Frowein, Director of the Max Planck Institute for Foreign Public Law and International Law, and Marcelino Oreja, formerly Spanish Foreign Minister, Secretary-General of the Council of Europe and Member of the European Commission, to draw up what became known as the "Report by the Three Wise Men". Wildhaber recommended that they produce the report as swiftly as possible.

The Report of the "Three Wise Men" and the Lifting of the Sanctions

Austria regretted that the sanctions were not lifted immediately, but assured the three investigators of the fullest support in their task. They held discussions in Vienna on 27/30 July and Heidelberg on 29 August with the Austrian Government, the parliamentary parties, the social partners, religious communities, judges, ombudsmen and representatives of various Austrian non-governmental organisations. On 8 September the "Three Wise Men" delivered their report to French President Jacques Chirac as head of the European Council. Its general conclusions contain a statement that "the Austrian Government is committed to the common European values" and that it "has also taken practical measures to improve its compliance with these values and standards." The report recommended the lifting of the sanctions:

"It is our opinion that the measures taken by the 14 Member States, if continued, would become counterproductive, and should therefore be ended. The measures have already stirred up nationalist feelings in the country, as they have in some cases been wrongly understood as sanctions directed against Austrian citizens."

The report also suggested the development of a mechanism within the EU "to monitor and evaluate the commitment and performance of individual Member States with respect to the common European values." The lifting of the sanctions was announced on the evening of 12 September after seven months and ten days. The communiqué issued by the French EU presidency on behalf of the 14 Member States recorded inter alia that "the Austrian government has not failed in its commitments to uphold European common values." It went on to state that "debate within the EU should be furthered on the way to forecast, monitor, assess and react in similar situations."

Conclusions from Austria's Point of View

In Austria, the imposition and operation of the sanctions by the 14 EU partners were met with misunderstanding and anger not simply on the part of the Government. The overwhelming majority of the Austrian population as well as people in most of the other EU states, found it inappropriate that sanctions unjustified by any facts within Austria should have been imposed without giving Austria the slightest chance of a hearing.

The ill-considered recourse to sanctions against Austria, which proved to be useless as a means to their desired end (i.e. preventing the formation of a government or overthrowing that government if once established) and therefore unusable as an instrument of rational policy, and above all the numerous overreactions that followed, ran counter to the European integration process and caused considerable damage to the European idea. The sanctions led to adverse effects on Austrian interests and to a large number of discriminatory effects on Austrian citizens, firms and institutions. In the course of time they not only aroused nationalist feelings in Europe, but also had a negative influence on public opinion in the EU candidate countries.

The declaration by the EU-14 presidency violated fundamental legal principles as well as the spirit of the European treaties. The deliberate exclusion of a country with a proven record of democracy from the European community of values, although it had never infringed any European rights in fact or in spirit, contravened precisely those basic values of democracy and the rule of law that were ostensibly being protected.

For this reason, consideration was given from various sides, including Belgium, Austria and Portugal, to means of dealing with future situations of a similar nature within the limits of the Community treaties. The reform of Art 7 (of the EU treaty) that was agreed by the European Council in Nice meets the proposals by the "Three Wise Men" as well as Austria's central demands. What is foreseen is a right of hearing for the Member State concerned, an obligation to justify the proposal to take action against it, the assent of the European Parliament to each relevant Council decision, an obligation on the Council to make regular reassessments, and judicial review by the European Court of Justice.

The Austrian Federal Government considers the "sanctions" episode to be closed. After the formal ending of Austria's exclusion, new relations were established with many of the EU partner countries, including numerous bilateral contacts at government level. British Foreign Secretary Robin Cook visited Vienna at the end of October and extended an invitation to Austrian Minister for Foreign Affairs Benita Ferrero-Waldner, who also carried out bilateral visits to Spain, Italy and Portugal. In November, Federal Chancellor Wolfgang Schüssel paid a working visit to Irish Prime Minister Bertie Ahern, after having previously met with Chancellor Schröder in Berlin. Italian Prime Minister Amato visited Vienna, and there was a meeting with Czech Prime Minister Zeman in Melk. The numerous visits continued from the beginning of 2001. With the successful visit by Minister Ferrero-Waldner to Secretary of State Madeleine Albright in the autumn of 2000, relations with the United State returned to complete normality.