President of Austria

The president of Austria is elected by popular vote for a term of six years and is limited to two consecutive terms of office.[3][4][5][6] Voting is open to all people entitled to vote in general parliamentary elections, which in practice means that suffrage is universal for all Austrian citizens over the age of sixteen that have not been convicted of a jail term of more than one year of imprisonment. (Even so, they regain the right to vote six months after their release from prison.)

Until 1 October 2011, with the exception of members of any ruling or formerly ruling dynastic houses (a measure of precaution against monarchist subversion, and primarily aimed at members of the House of Habsburg), anyone entitled to vote in elections to the National Council who is at least 35 years of age is eligible for the office of president. The exception of ruling or formerly ruling dynasties has been abolished meanwhile within the Wahlrechtsänderungsgesetz 2011 (Amendment of the law on the right to vote 2011) due to an initiative by Ulrich Habsburg-Lothringen.[7]

The president is elected under the two-round system. This means that if no candidate receives an absolute majority (i.e. more than 50%) of votes cast in the first round, then a second ballot occurs in which only those two candidates who received the greatest number of votes in the first round may stand. However, the constitution also provides that the group that nominates one of these two candidates may instead nominate an alternative candidate in the second round. If there is only one candidate standing in a presidential election then the electorate is granted the opportunity to either accept or reject the candidate in a referendum.

While in office the president cannot belong to an elected body or hold any other position.

Article 62 of the Austrian Constitution provides that the president must take the following oath or affirmation of office in the presence of the Federal Assembly (although the addition of a religious asseveration is admissible):[8][9]

"I solemnly swear that I will faithfully watch the Constitution and all the laws of the Republic and fulfill my duty to the best of my knowledge and conscience."

Chancellor and Cabinet

Cabinet Kreisky I, with Chancellor Bruno Kreisky seated at the center of the futon and President Rudolf Kirchschläger standing behind him (center-right)

The president appoints the chancellor, the vice chancellor, and the ministers, which collectively form the Cabinet of Austria.[12][13]

The people of Austria elect a new National Council at least every five years. The National Council is the lower chamber of the Parliament and substantially more powerful than its indirectly elected, upper counterpart, the Federal Council. Following such an election the president, by convention, charges the top candidate[lower-alpha 2] of the party that won the most seats with the formation of a new Cabinet. Theoretically, the president could charge any citizen of Austria with the formation of a new Cabinet, however, since the National Council can dismiss the Cabinet through a motion of no confidence at any time, the president is de facto obliged to abide by convention. Once the victor of the election is charged with the Cabinet formation, they are ought to draft a "ministers' list", which comprises all Cabinet members. When drafting such a list, the person charged with the formation commonly claims the chancellorship. Since a party rarely has an absolute majority of seat within the National Council, they must find a coalition partner to establish a politically stable Cabinet; the leader of the junior coalition party commonly claims the vice chancellorship. The nominees for the ministerial offices, and the positions of secretaries of state (which are, however, not formally part of the Cabinet), are assigned by the coalition partners ensuing comprehensive negotiations. Once the drafting of the ministers' list is completed, it is introduced to the president. The president can accept the list, decline it, decline individual nominees, or decline it and charge someone else with the Cabinet formation. If the list is accepted, the president will officially swear in the chancellor, the vice chancellor, the ministers, and the secretaries of state at an inauguration ceremony, commonly taking place several days after having accepted the list.

So far, there have been only three cases in which a president declined to appoint a Cabinet nominee. Karl Renner denied to re-appoint a minister suspected of corruption. Thomas Klestil declined to appoint two ministers; one of them was involved in a criminal case and the other had been frequently noticed for extremist and xenophobic statements before the election. In 1953, President Theodor Körner rejected the demand of Chancellor Leopold Figl to appoint a Cabinet in which the Federation of Independents would have been a coalition partner.

Federal and state officers
From the official and legal point of view, the president appoints all officers of the federal government, not just the members of Cabinet and the justices of the supreme courts. This includes all military officers and soldiers, all judges, as well as all ordinary functionaries and bureaucrats.[14][15] In practice however, this power of appointment is delegated to the ministers and their subordinates, although the highest-ranking officers of government are always personally appointed by the president.[16][17]

Because the governors of the states do not only serve as the chief executives of their respective state but also as the chief representatives of the federal government within that state, the president swears in all governors, following their election by the state diet.

Cabinet
The president can dismiss the chancellor or the entire Cabinet at any time, such at will. However, individual Cabinet members can only be dismissed by the president on the advice of the chancellor.[12][13] So far, the dismissal of an entire Cabinet against its will has never occurred. President Wilhelm Miklas did not make use of this power when Chancellor Engelbert Dollfuß absolished the Constitution to establish the dictatorial Federal State of Austria.

The removal of a minister against their will occurred only once, when Chancellor Sebastian Kurz asked President Alexander Van der Bellen to remove Interior Minister Herbert Kickl. Ensuing the Ibiza affair and a likely collapse of the Cabinet, Kickl swiftly appointed Peter Goldgruber – with whom he had close ties – to the office of director general for the Public Security, the country's top law enforcement position.[lower-alpha 3][18][19]

National Council
The president may dissolve the National Council at the request of Cabinet, but only once for the same reason.[20][21] The legal consequences of a dissolution of the National Council by the president differ from those of a parliamentary self-dissolution. If the president terminates the legislative period, the National Council is immediately dissolved and thereby incapacitated. However, the Standing Subcommittee of the National Council's Principal Committee remains as an emergency body until the newly-elected National Council convenes. Prior to that, the president may issue emergency decrees on the request of the Cabinet and with the consent of the Standing Subcommittee of the Principal Committee. In the case of self-dissolution, the old National Council keeps meeting until a new one is elected.

So far, only President Wilhelm Miklas has made use of this power, after the Christian Social Party had lost its coalition partner and thus a majority in Parliament.

State diets
The president can dissolve every State Diet at the request of Cabinet and with the consent of the Federal Council.[22][23] However, the president may only do so once for the same reason; as with the dissolution of the National Council. The Federal Council must agree to the dissolution by a two-thirds majority. The delegation of the state whose Diet is to be dissolved, may not partake in the vote.

The dissolution of a State Diet is viewed as an encroachment on federalism, as the national government directly intervenes into state affairs. Like with the presidential dissolution of the National Council, a dissolved State Diet is considered incapacitated until after a new election. This power has never been applied by any president yet.

Signing bills into law

The signatures of four different presidents.

As state notary of Austria, the president signs bills into law.[24][25] Signing bills into law is a constitutionally mandated duty of the president and not a discretionary power; it is not comparable with the presidential veto in the United States or the Royal Assent in the United Kingdom. In their capacity as state notary, the president scrutinises the constitutionality of the lawmaking process undertaken to enact a piece of legislation. If the president finds the bill to have been crafted in an unconstitutional way, the president is compelled to deny their signature, which strikes down the piece of legislation. All bills on federal level, no matter if they affect statutory or even constitutional law, must be signed by the president to take effect.

The president generally does not verify if an enacted statute complies with constitutional law; that is subject to the Constitutional Court, once the statute becomes effective and is legally challenged. Judicial interpretations regarding the scrutiny extent of this presidential responsibility have varied, with some arguing that the president may deny signature if provisions of an enacted statute are undoubtedly unconstitutional. President Heinz Fischer established a precedent for that, by refusing to sign a statute – containing retrospective criminal provisions – into law; this remains the only time a president has denied signature.

Once a bill is introduced in Parliament, it must pass the National Council with the requisite quorums and be approved by the Federal Council to become 'enacted'.[26] After its enactment the bill is forwarded to the chancellor, who submits it to the president. The president then signs the bill into law (if it has been enacted in accordance with constitutional requirements).[27] The chancellor subsequently countersigns and then promulgates the bill in the federal law gazette, ultimately rendering it effective.[28][29]

If the president refuses to sign any or particular bills into law – that are not in obvious or direct violation of the Constitution – the president may be impeached by the Federal Assembly before the Constitutional Court and subsequently removed from office through conviction for failing their constitutional responsibilities.

Rule by decree
The president is authorized to rule by emergency decree in times of crisis.[30][31] The Constitution states as follow:

"to ward off irreparable damages to the general public, at a time where the National Council is not in session and cannot be convened in time, at the request of the Cabinet, and with the assent of the Standing Subcommittee of the Principal Committee of the National Council, the president is empowered to adopt provisional regulations that have the force of law".

Such emergency decrees do not affect the Constitution – which chiefly consists of the Federal Constitutional Law and the Basic Human Rights – as well as any other important legal provision. As soon as the National Council is in session again, it is ought to immediately approve or invalidate active emergency decrees. The power to rule by decree has never been applied yet.

Enforcer of the Constitutional Court
The president is entrusted with the enforcement of findings of fact of the Constitutional Court, when such enforcement is not subject to ordinary courts.[32][33] The request for enforcement is submitted to the president by the Court itself. The Constitution provides the president with extensive enforcement powers. Enforcement jurisdiction can comprise state and federal authorities (this includes the Armed Forces and law enforcement) as well as a state or the republic in its entirety. When wielding enforcement rights, the president obtains direct operational control over the authorities concerned. If a federal authority or the republic as a whole are affected, the president does not require countersignature.

Appointing justices
The president appoints the president, the vice president, the six further justices, and the three substitute justices of the Constitutional Court on the nomination of Cabinet; additionally, the president appoints one justice and three substitute justices on the nomination of the National Council and one justice and three substitute justices on the nomination of the Federal Council.[34][35] The president also appoints the president, the two vice presidents, the 14 presiding justices, and the 43 further justices of the Supreme Court of Justice; as well as the president, the vice president, the presiding justices, and the further justices of the Supreme Administrative Court on the nomination of Cabinet, of which all members expect the president and vice president are recommended to Cabinet by the Court itself.[36]

The president is the chief diplomat of Austria and may negotiate and sign treaties with foreign countries; some treaties require the assent of the National Council.[37][38]

When Austria joined the European Union, President Thomas Klestil and Chancellor Franz Vranitzky had a disagreement on who would represent Austria in the European Council. Ultimately, the chancellor's point of view prevailed, mainly due to legal and practical reasons. However, President Klestil argued that he had only delegated this power of representation to the chancellor.

Newspaper Das Interessante Blatt reporting on the constitutional amendment of 1929

The president is the commander-in-chief of the Austrian Armed Forces,[39] a role derived from the constitutional amendment of 1929. While there is no unanimous juridical or scholarly consensus regarding the amendment's interpretation, the role is widely recognized as a critical reserve right.

Article 80 of the Constitution establishes how the military is to be governed. Clause 1 of that article states that "the President shall have Supreme Command over the Armed Forces", Clause 2 states that "if not the President maintains disposal authority over the military, as established by Defense Law, the minister responsible [Minister of Defense] shall maintain disposal authority within a scope of responsibility defined by the Cabinet", and Clause 3 states that "command authority over the military shall be exercised by the minister responsible [Minister of Defense]".[40][41]

The Constitution therefore distinguishes between three different types of military authority: "command authority" (=Befehlsgewalt), which grants one the plain right to issue verbal or written instructions; "disposal authority" (=Verfügungsgewalt), which empowers one to define the structures, tasks, and missions of the Armed Forces or its individual units; and "supreme command" (=Oberbefehl), which elevates one to the peak of the chain of command.[42] The latter one (which Clause 1 gives the president) has particularly been ambiguous and inconclusive; however, the majority of constitutional scholars[lower-alpha 4] believe that the president, in this capacity, may command and control the minister of defense and all military personnel.[43]

Since no president has ever made use of this power, legal precedents were never established. The military's day-to-day operations are directed by the minister of defense, who is widely recognized as its de facto highest authority.[44][45] Key decisions on the use of the Armed Forces are usually made by the whole Cabinet.

Historically, the president, as commander-in-chief, succeeded the emperor of Austria in his capacity as supreme commander of the Austro-Hungarian Military. Following the collapse of the Habsburg monarchy in 1918, the Principal Committee of the newly established National Council began serving as the chief decision-making body of the Armed Forces. In 1929, the Christian Social Party transferred supreme military command from the Principal Committee to the president through a constitutional amendment, in order to advance fascism in Austria.

The president has various additional powers and duties, which are typically vested in a head of state. These include, for example, the creation and conferment of honorary and professional titles, and the basically meaningless right to declare "illegitimate children" to "legitimate children" at the request of their parents.[37][38] Another power is the bestowal of the Promotio sub auspiciis Praesidentis rei publicae, a golden ring serving as the highest possible distinction and decoration for doctoral students with the most extraordinary credentials. Furthermore, the president is empowered strike down criminal cases ("right of abolition") and to grant pardons and commutations. According to case law of the Constitutional Court, presidential pardons do not only void the sentence but also undo the conviction.[46]

The president enjoys full sovereign immunity from any type of official prosecution, including civil suit and criminal prosecution. The president may only be prosecuted with the explicit consent of the Federal Assembly. If a government authority intends to prosecute the president, it must refer a request for extradition to the National Council. If the National Council approves, the chancellor must convene the Federal Assembly, which will then decide over the request for extradition.[47][48]

Popular deposition
The ordinary way of removing a sitting president from office would be through popular deposition. Since the president is elected by the people, the people also have the power to remove the president again through a plebiscite.[49][50]

Popular deposition commences with an act of the National Council requesting the convocation of the Federal Assembly. Such a resolution of the National Council is passed with a supermajority, meaning it requires the same quorums as when amending constitutional law; the attendance of at least half of the members of the National Council and a successful two-thirds vote. If passed, the president is automatically unable to "further exercise the powers and duties of the presidency" and thereby deprived of all authority, the chancellor in turn, is required to immediately call a session of the Federal Assembly. Once convened, the Federal Assembly then considers and decides over the National Council's request of administering a plebiscite.

If a plebiscite is conducted and turns out successful, the president is removed from office. However, if the plebiscite fails the Constitution treats it as a new legislative election, which triggers the immediate and automatic dissolution of the National Council; even in such a case, the president's term of office may not exceed twelve years in total.

Impeachment
The president can be impeached before the Constitutional Court by the Federal Assembly for violating constitutional law.[51][52] This process is triggered by either a resolution of the National Council or the Federal Council. Upon the passage of such a resolution, the chancellor is required to call a session of the Federal Assembly, which then considers the impeachment of the president. A supermajority is needed to impeach the president, meaning the attendance of at least half of the members of the National Council and the Federal Council as well as a successful two-thirds vote are required.[53][54]

If the Federal Assembly decides to impeach the president, it acts as the plaintiff before the Constitutional Court. If the Court convicts the president of having breached constitutional law, the president is automatically removed from office. Conversely, if the Court finds the president to have committed a minor offense, the president remains in office and is merely reprimanded.

The Constitution of Austria makes no provisions for an office of vice president. Should the president become temporarily incapacitated – undergoes surgery, becomes severely ill, or visits a foreign country (excluding EU member states) – presidential powers and duties devolve upon the chancellor for a period of twenty days, although the chancellor does not become "acting president" during that time.

The powers and duties of the presidency devolve upon the Presidium of the National Council in the following three cases:

• The aforementioned period of twenty days expires, in which case the Presidium assumes presidential powers and duties on the twenty-first day.[55][56]
• The office is vacated because the president dies, resigns, or is removed from office, in which case the Presidium assumes presidential powers and duties immediately.
• The president is prevented from "further exercising the powers and duties of the presidency" because the National Council has requested the convocation of the Federal Assembly to consider popular deposition, in which case the Presidium also assumes presidential powers and duties immediately.

When exercising the powers and duties of the presidency, the three presiding officers of the National Council – forming the Presidium – act collectively as a collegiate body. If votes are divided equally, the higher-ranking presiding officer's vote prevails.

The president is compensated for his or her service with 349,398 EUR annually, the chancellor in turn is compensated with 311,962 EUR annually.[57] This amount is particularly high when considering that the chancellor of Germany (€251,448),[58] the president of France (€179,000),[59] the prime minister of the United Kingdom (€169,284),[60] and the president of Russia (€125,973) receive a significantly lesser salary, although they are the chief executives of substantially larger countries; the Austrian president's salary is topped only by that of the president of the United States (€370,511).[61][62]

The mirror room (left), the central hallway (right), and the facade (below) of the Leopoldine Wing.

The principal residence and workplace of the president is the Leopoldine Wing in the Hofburg Imperial Palace, which is located in the Innere Stadt of Vienna.[63] The Leopoldine Wing is sometimes ambiguously referred to as the "Presidential Chancellery". In practice, the president does not actually reside in the Hofburg but retains their personal home.

As its full name already divulges, the Hofburg is an edifice stemming from the times of the monarchy; it was built under Holy Roman Emperor Leopold I in the 13th century. Ensuing the fall of the monarchy and the formation of the republic, democratic institutions intentionally kept their distance from monarchic establishments and so the original residence of the president became the chancellery building. However, following a severe bombardment during World War II, the chancellery building became uninhabitable and the president had to find new lodging. The first president of the Second Republic, Karl Renner, deliberately chose the Leopoldine Wing; as its creation and history – in particular the interior design – was majorly influenced by Empress Maria Theresia, whose profile was generally favorable among the people at the time. The chancellery building was later renovated and now serves as the residence and workplace of the chancellor.

Today, the Leopoldine Wing harbours the offices of the Presidential Chancellery on its second and third floor. Additionally to the Hofburg, the president has a summer residence at their disposal, the Mürzsteg Hunting Lodge. However, the lodge hasn't been utilised for decades; former President Heinz Fischer even fruitlessly pledged to sell the building while campaigning for the presidency.[64]

The president is legally protected by multiple special criminal law provisions; of which the most important is § 249 of the statutory Criminal Code:[65][66]

"Anyone who attempts depose the President by force or dangerous threats or to use one of these means to coerce or prevent the exercise of his powers, in part or in their entirety, is subject to imprisonment from one to ten years."

Furthermore, the title "Bundespräsident" (=president) may – even with additions or in connection with other titles – not be used by anyone other than the incumbent president.