Chancellor Kurz addresses the Austrian National Council just before losing its confidence.

Introduction

A series of strange events has recently befallen Austria. It began with political scandal and the collapse of the coalition government between Sebastian Kurz’s People’s Party and Heinz-Christian Strache’s Freedom Party and ended a few weeks later with the President of Austria appointing a “technocratic provisional government” composed of judges and civil servants, who will now steer the ship of state as a caretaker cabinet until early elections in September. The details of what precipitated the coalition government’s collapse would have seemed outlandish prior to, say, 2016, but now seem both depressingly believable and yet still absurd. The final outcome of the political scandal has taken the caretaker convention to its logical extreme because of the peculiarities of Austria’s constitution and its provisions surrounding non-confidence, early dissolution, and government formation.

For this research, I’ve had to rely on either original English-language news coverage of these events in Austria or my browser’s bad (subtly inaccurate in funny ways) translation of German into English. I welcome my German-speaking readers to offer better translations of, in particular, the proceedings of Austria’s National Council, Austria’s Constitution, the Weimar Republic’s Constitution in the comments as required.

Timeline of How The Coalition Between the People’s Party and Freedom Party Gave Way to the Technocratic Caretaker Government     

On 17 October 2017, Austrians elected their 183 deputies in the National Council (their lower house of parliament), returning 62 for the center-right People’s Party, 52 Social Democrats, 51 for the right-wing populist-national Freedom Party, 9 Liberals, and 8 Greens. The outgoing Social Democratic Chancellor Christian Kern remained in office as caretaker for two months after the election until 18 December 2017, when the two right-wing parties formed a coalition government. President Alexander Van der Bellen then appointed Sebastian Kurz, leader of the People’s Party, as Chancellor and Heinz-Christian Strache, leader of the Freedom Party, as Vice-Chancellor. The People’s Party and Freedom Party combined held a majority of 113 out of 183.

Things fell apart in May 2019 when the Strache Scandal went public. On 17 May, two German-language publications, Der Spiegel and Süddeutsche Zeitung, published excerpts of a video showing Strache and Freedom Party official Johann Gudenus “talking to a unidentified woman purporting to be the niece of a Russian oligarch about how she could invest in Austria,” according to The Guardian.[1] This recording, which appears to be some kind of surveillance video taken without Strache’s knowledge, took place in 2017, a few months before the last general election in October 2017. Strache wanted the Russian oligarch to buy an Austrian tabloid called the Kronen Zeitung, replace its editorial staff, and use the paper to increase support for the Freedom Party in the election of October 2017. In return for this foreign investment in Austria, shall we say, companies under the control of the Russian oligarchs would gain access to lucrative Austrian government contracts to build and maintain public roads. One cannot help but question the loyalty of a nationalist politician who consorts to sell out part of his country’s media to a foreign power and who equates his own petty self-interest with his country’s national interest.

The release of this video on 17 May in which Strache outlined his corrupt bargain prompted his immediate resignation as leader of the Freedom Party and Vice-Chancellor.  Chancellor Kurz then dismissed the Freedom Party Interior Minister Herbert Kickl from cabinet, and the remaining Ministers from the Freedom Party resigned in protest.[2] This left Chancellor Kurz the head of a vulnerable single-party minority government.

On 18 May, Chancellor Kurz advised President Van der Bellen to hold early elections “as soon as possible,”[3] and President Van der Bellen announced on 19 May that they would happen in September.[4] On 22 May, President Van der Bellen swore in this reorganized Kurz ministry as a caretaker ministry, and Kurz filled the cabinet posts vacated by the Freedom Party with senior civil servants.[5] But this hybrid People’s Party-Technocratic Cabinet only lasted until 28 May because the National Council took the extraordinary step of withdrawing its confidence from the Kurz government on 27 May when the Social Democrats and Freedom Party, the former spurned coalition partner, joined the Greens, who had introduced the motion; only the Liberals voted with Kurz’s People’s Party.[6] This forced President Van der Bellen’s hand; he could no longer allow Kurz to remain in office as a caretaker chancellor because Austria’s constitution states that a government which loses a vote of confidence must resign immediately. The People’s Party-Technocratic caretaker coalition needed to give way to an entirely technocratic cabinet, but Van der Bellen was not in a position to appoint the “permanent” technocratic caretaker cabinet right away; he wanted to consult all parties before making a decision on a suitable technocratic caretaker candidate.

So on 28 May, Kurz resigned while the remaining People’s Party ministers and technocrats stayed on, and Van der Bellen appointed Hartwig Löger, Minister of Finance since December 2017, as “Acting Chancellor” for a few days.[7] Finally, on 3 June 2019, this acting provisional caretaker ministry gave way to a permanent provisional caretaker ministry – if I can inject some wordplay into this nonsense – when President Van der Bellen appointed Brigitte Bierlein, the President of Austria’s Constitutional Court, as Chancellor and replaced the remaining rump of People’s Party Ministers with new permanent provisional caretaker ministers as well.[8] Austria now has a “provisional” and “caretaker” government consisting entirely of judges and civil servants, none of whom hold stood for election in 2017 and none of whom therefore hold seats in the elected lower house.[9] Finally, on 12 June 2019, the National Council voted for its early dissolution through the Federal Law Through Which the 26^th Legislative Term of the National Council Ends Prematurely. The law entered into force on 3 July 2019, so the National Council will presumably stand dissolved until the early elections take place on 29 September 2019.[10]

Austria’s Weimar Constitution

This strange turn of events unfolded because of and in accordance with Austria’s Constitution. Originally promulgated in 1920 in the aftermath of the collapse of the Hapsburg Empire and the First World War, it went into abeyance in 1938 when Hitler annexed his native Austria into the Third Reich. Austria then restored its original constitution in 1945 instead of drafting a new one. In other words, Austria still operates today on a constitution which bears an uncanny resemblance to the Weimar Republic’s constitution, promulgated into force only a few months earlier in 1919.

General Framework

Like the Weimar Constitution, Austria’s Constitution also establishes a federal semi-presidential system including a bicameral federal legislature and a president directly elected by the people. The president’s direct election gives him significantly more legitimacy to intercede against the Ministry and the legislature. The lower house of parliament, the “National Council” (Nationalrat) consists of 183 deputies elected from open-list proportional representation along the borders of the 9 Landers and further sub-divided into regional constituencies. (Germany’s lower house is called the Bundestag). The upper house of parliament, the “Federal Council,” (Bundesrat), consists of 61 representatives elected by the Diets of the 9 Landers “for the duration of their respective legislative periods in accordance with the principle of proportional representation.” In contrast, the German Bundesrat consists ex officio of the first ministers and some cabinet ministers of the Lander governments.

Article 22 of the Weimar Constitution says that Germans elected their MPs “by universal, equal, direct and secret ballot by men and women over twenty years of age, according to the principles of proportional representation.” Article 26 of Austria’s Constitution provides nearly a direct transcription (and the substantive part might even say the same word for word in the original German) of the Weimar Constitution: “The National Council is elected by the federal people (Bundesvolk) in accordance with the principles of proportional representation on the basis of equal, direct, personal, free and secret suffrage by men and women who have completed their sixteenth year of life on the day of election.”

French jurist Maurice Duverger coined the term “semi-presidentialism” to describe France’s 5^th Republic and constitution from 1958 onward. He described three main characteristics of this system, which include “A president who is popularly elected” and who therefore “has considerable constitutional authority, where “there also exists a prime minister and cabinet subject to the confidence” of a parliamentary majority in the elected assembly.^[11] Semi-presidentialism exists more a spectrum than as an ideal-type in and of itself, with one side tending toward the ideal-type for parliamentarism and another tending toward that for presidentialism. I would argue that based on Duverger’s criteria for semi-presidentialism, Austria is the least presidential and most parliamentary of the semi-presidential jurisdictions, mainly because of the second criterion; the President of Austria today possesses only narrow authority to act unilaterally compared to the President of the French 5^th Republic. In contrast, the Weimar Republic leaned far more to the presidential side of the semi-presidential spectrum, especially because of the emergency provisions that Article 48 of the Weimar Constitution assigned to the President. If Weimar had survived instead of succumbing to National Socialism, it might have become the archetype for semi-presidentialism.

The National Council (Lower House)

Articles 27 through 31 of Austria’s Constitution define the National Council. The National Council lasts a maximum of five years, “calculated from the day of its first meeting […] until the day on which the new National Council meets,” and the President must convene it within 30 years after a general election. This conforms to standard European parliamentary practice; but in Canada, the life of the parliament is calculated from the day of the return of writs from one parliament to another, rather than the day on which the 1^st session of a parliament begins, because our parliaments legally do not exist during the writ.[12] Each annual session lasts from 15 September to the following 15 July. But unlike Germany and other Continental European parliamentary jurisdictions, the Constitution does not stabilize the lifecycle of Austria’s National Council with constructive non-confidence, confirmation voting, and extraordinary procedures for early dissolution; instead, it operates on something more similar to the traditional Westminster model still in effect in Canada and in the United Kingdom itself prior to 2011.

Article 29 spells out two ways through which the National Council can be dissolved early: either “the National Council can vote its own dissolution by simple law”, which means a statute passed by a simple majority like any other, or the President can dissolve a National Council early. Under that procedure, “The Federal President can dissolve the National Council, but he may avail himself of this prerogative only once for the same reason. In such case the new election shall be so arranged by the Federal Government that the newly elected National Council can at the latest meet on the hundredth day after the dissolution.” We should probably interpret that clause “he can avail himself of that prerogative only once for the same reason” to preclude the possibility that a Chancellor advises the dissolution of two National Councils consecutively simply in an effort to increase the representation of his own party. This procedure under Article 29, Section 1 came into play in the recent political crisis.

Votes of Non-Confidence

Article 74 of Austria’s contains the procedure for votes of non-confidence, which unlike the constitutional conventions operative in Canada, Australia, and New Zealand provide absolutely no room for manoeuvre and preclude the possibility that a defeated Ministry can advise the President to dissolve the National Council early and stay on as caretaker during the ensuing election:

1. If the National Council passes an explicit vote of no-confidence in the Federal Government or individual ministers thereof, the Federal Government or the Federal Minister concerned shall be removed from office.

This provision also means that collective ministerial responsibility as practised in the United Kingdom, Canada, Australia, and New Zealand, where the tenure of the Prime Minister determines the tenure of the Ministry, and where the elected lower house can affirm or withdraw confidence only from the Ministry as a whole, does not apply in Austria. There, the National Council can withdraw its confidence from individual ministers, just as the legislative assemblies of Northwest Territories and Nunavut can under Consensus Government. While Austria’s Constitution also does recognize collective ministerial responsibility, it does not recognize collective ministerial responsibility exclusively like the elected assemblies in Canada (minus two of the territories) and Australia do. This differentiation between and simultaneously recognition of collective and individual ministerial responsibility probably flows from coalition government and the possibility that the National Council might hold confidence in the Ministers of one party but not others. Finally, as the events of May and June 2019 made clear, this provision of Austria’s constitution prevents a defeated incumbent government from remaining in office during an election as a caretaker government and thereby forces the President to appoint a new caretaker government if both the incumbent government suffers defeat and either he or the National Council opts for an early dissolution.

Incidentally, the Constitution of the Weimar Republic contained a similar provision, which simultaneously recognized both collective and individual ministerial responsibility, and which entailed the same result: the forced resignation of the incumbent ministry. Article 54 of the Weimar Constitution says: “The Chancellor and the Reich Ministers require for the exercise of their office the confidence of the Reichstag. Any of them must retire if the Reichstag by express resolution withdraws its confidence.” The National Socialists abused this provision to great effect in the early 1930s.

On 27 May, the National Council voted to support the following motion against Chancellor Kurz’s re-constituted People’s Party-Caretaker Ministry. My browser translated this HTML transcript of the original German-language proceedings of Austria’s National Council, the lower house, of 27 May 2019 into (inaccurate) English. Essentially, the motion of non-confidence accuses Chancellor Kurz of having acted in his self-interest instead of the national interest, and it takes great issue with the very idea of a single-party minority government.

Reason

Due to the events of recent days, in particular the policy-based approach of the Federal Chancellor, which he has not discussed with the other parties represented in Parliament, the following must be stated:

The Chancellor bears the main responsibility for the failure of this coalition and for the current situation. In addition, it should be noted that in two years, he dissolves a government for the second time and goes to new elections. Thus, the confidence in the government of this Chancellor is no longer given.

He acts like a player and uses as an insert the stability of Austria, to pursue his political interests with his risky game.

In addition, after he has ended the coalition, he has shown no interest in a national consensus and has denied neither the ministers used nor the further course of action with the parliamentary parties.

Rather, it is so that he has single-handedly installed an ÖVP single government in order to achieve benefits for his election campaign.

Since the Federal Chancellor bears the main responsibility for this unstable situation and he exclusively pursues his own power interests and is also responsible for the selection of his ministers, the confidence in the entire Federal Government no longer exists.

The undersigned MPs therefore provide the following Application. 

The National Council would decide:

According to Art. 74 (1) in conjunction with Art. 78 para. 2 B-VG, the Federal Government and the State Secretary are denied the trust by express resolution of the National Council.

The vote on the aforesaid motion of non-confidence took place later that day, and the Speaker of the National Council (“President” in Continental European parlance) declared the motion carried, and, in accordance with Austria’s constitution, the Kurz government dismissed from office.

President Doris Bures : My dear ladies and gentlemen, I now is no longer speak. This concludes the debate.

We now come to the vote.

I will start by referring to the motion of no confidence presented by Members. ⁱⁿ  Rendi-Wagner, colleagues on “Failure to trust the Federal Government and the State Secretary”.

I would like to point out that, if this motion is approved by a majority, the vote on the motion for a resolution tabled by Mr Drs. Noll, colleagues on “failure of confidence in the Federal Chancellor” will be omitted.

We are now moving to the vote on the motion for a resolution by the Members of the Bundestag. ⁱⁿ  Rendi-Wagner, Colleagues regarding ” Failure of confidence in the Federal Government and the Secretary of State” pursuant to Art. 74 (  1) in conjunction with Art. 78 (2) of the Federal Constitutional Law.

Since such a decision of the National Council, pursuant to paragraph 2 of the cited constitutional provision, requires the presence of half of the MEPs, I expressly declare them.

I would now like to ask the ladies and gentlemen who are in favor of the present censure motion to be a sign of approval. – That’s the majority. The present application is thus accepted. (E xx) (DeputyWöginger: A madness!) – Exhausted Nehammer: The new coalition: Kickl and Rendi-Wagner! – Further interjections at the ÖVP.)

Thus, the Austrian National Council of the Federal Government has failed confidence. After the decision has been served, it is now up to the Federal President, in accordance with our Federal Constitution, to entrust a provisional Federal Government with the continuation of the administration.

I mention once again that the vote on the other motion of no confidence ceases to exist by resolution.

The President and the Chancellor

Article 60 of Austria’s Constitution says, “The Federal President is elected by the federal people on the basis of equal, direct, personal, free and secret suffrage […]”for a term of six years and a maximum of two consecutive terms. (Article 41 of the Weimar Constitution likewise provided that “The Reich President is elected by the whole German people” for renewable terms of seven years.) The President can be impeached by referendum. If the President is incapacitated for 20 days or fewer, the authority of the President passes to the Chancellor; if the president is incapacitated for greater than 20 days or dies in office, then his powers pass to a council of state consisting the speaker and two deputy speakers of the National Council. The President performs standard head of state diplomatic functions like issuing and accepting letters of credence and representing the head on the international level, and he can also grant pardons. The President also serves as the Commander-in-Chief of the Federal Army. (The President of the Weimar Republic also held “supreme command over all defence forces of the Reich”, while under modern Germany’s Basic Law, the Minister of Defence holds “command of the Armed Forces.”) This all sounds very semi-presidential. But Article 67 confines the President to a non-executive head of state within a standard parliamentary system, like with the Presidents of Germany and Ireland, unless the constitution specifies otherwise:

1. Save otherwise provided by the Constitution, all official acts of the Federal President shall be based on recommendations by the Federal Government or the Federal Minister authorized by it. […]

2. Save as otherwise provided by the Constitution, all official acts of the Federal President require for their validity the countersignature of the Federal Chancellor or the competent Federal Minister.

Articles 69 to 78 establish the authorities of the Federal Chancellor (Bundeskanzler) and Federal Ministers, which together constitute the Federal Government “under the chairmanship of the Federal Chancellor.” That describes how cabinet government works in Canada, where the Prime Minister chairs cabinet and can “call consensus.” Article 70 codifies the constitutional relationship between the Chancellor, President, and Ministry in a manner consistent with traditional Westminster parliamentarism:

The Federal Chancellor, and on his recommendation, the other members of the Federal Government, are appointed by the Federal President. No recommendation is requisite for the dismissal of the Federal Chancellor or the whole Federal Government; the dismissal of individual members of the Federal Government ensues on the recommendation of the Federal Chancellor. The appointment of the Federal Chancellor or the whole Federal Government is countersigned by the newly appointed Federal Chancellor; dismissal requires no countersignature.

In other words, the President has discretion – but heavily constrained by political reality and the parties’ standings in the National Council – in appointing and dismissing a Chancellor, rather like the Governor General in Canada. However, the fact that this provision differentiates between dismissing the Federal Chancellor or the Ministry as a whole means that, unlike in Canada, the tenure of the Chancellor does not automatically determine the tenure of the Ministry. This provision thus also recognizes that collective ministerial responsibility and individual ministerial responsibility share paramountcy in a way that they do not in Canada (except under the Consensus Government of Northwest Territories and Nunavut). Finally, the Chancellor takes responsibility for his own appointment and the appointment of his Ministers, like in Canada, but, unlike in Canada, he does not take responsibility for the dismissal of his predecessor where those circumstances would arise, like a mid-parliamentary change in government here.

Article 71 describes how caretaker government usually works in Austria had would have worked in Chancellor Kurz’s case if the National Council had not withdrawn its confidence from his caretaker ministry on 27 May:

Should the Federal Government have left office, the Federal President shall entrust members of the outgoing Government with continuation of the administration and one of them with the chairmanship of the provisional Federal Government. A State Secretary attached to an outgoing Federal Minister or a senior civil servant in the Federal Ministry concerned can likewise be entrusted with continuation of the administration. This provision applies analogously if individual members of the Federal Government have left office.   

In other words, if that vote of non-confidence had not taken place in May, Sebastian Kurz would have remained in office as a Caretaker Chancellor until the early election in September. This provision of Austria’s Constitution also corresponds closely to Article 69, section 3 of the Federal Republic of Germany’s Basic Law through which the President of Germany can assign the incumbent Chancellor to remain in office as caretaker until the new Bundestag holds a confirmation vote.

The Federal Republic of Germany (1949-present) has developed, thanks largely to its first Chancellor, Christian Democrat Konrad Adenauer, into a “Chancellor Democracy,” which makes the Chancellor the focus of collective ministerial responsibility. Ministers are responsible to the Chancellor for the conduct of their portfolios, not to the Bundestag directly.[13] The Chancellor herself takes responsibility for the ministry as a whole, as per the Basic Law’s provisions on confirmation voting and constructive non-confidence. In contrast, Austria’s official semi-presidentialism comes into play under Article 77, at least on paper, by allowing the President to keep the Chancellor in check and take away areas which usually fall under the Chancellor’s individual ministerial responsibility in a way that the head of state cannot in a parliamentary republic like Germany:

The Federal Chancellor is entrusted with the direction of the Federal Chancellery and a Federal Minister is entrusted with the direction of each of the other Federal Ministries. The Federal President can assign to special Federal Ministers the direction of particular matters which fall within the Federal Chancellery’s competence, including the personnel establishment and organization of such business, notwithstanding that these matters continue to appertain to the Federal Chancellery; such Federal Ministers have in respect of the matters in question the status of a competent Federal Minister.

This section might mean that the Chancellor of Austria has less latitude in assigning ministers areas of responsibility relative to the Chancellor of Germany. Finally, the President of Austria probably invoked Article 77, section 4 on 22 and 28 May: “The Federal Chancellor and other Federal Ministers can exceptionally be entrusted with the direction of a second Federal Ministry.”

Conclusion

The caretaker convention means that the incumbent Ministry should restrain itself and should not exercise the full authority that it always legally possesses to make controversial, unnecessary, and irreversible decisions that would bind its successor during the writ when parliament is dissolved and Ministers both can therefore no longer be held to account by the elected assembly. In Canada, this caretaker period is also generally regarded as extending into the post-writ, from the time that the results of the election become known to when the incumbent Ministry faces its first vote of confidence in the first session of the new parliament. But this only happens when voters elect a minority parliament where no party wins an outright parliamentary majority, not the norm in Canada, though three recent cases have occurred: British Columbia in 2017, New Brunswick in 2018, and Newfoundland & Labrador in 2019. But in most of Continental Europe, proportional representation – and therefore minority parliaments – reign supreme, and most elections yield uncertainty that the political parties themselves must sort out by forging coalitions.

Normally in countries like Belgium and Germany, the incumbent government would remain in office throughout the election and after the election until the parties represented in the new minority parliament have arranged a new coalition agreement, and up until the moment where the first session of the new minority parliament holds a confirmation vote on who should become the new Head of Government (whether called a Prime Minister or Chancellor or whatever). But Belgium (Article 96 of its constitution) and Germany (Article 67 of the Basic Law) both employ constructive non-confidence, which means that the elected assembly can only withdraw its confidence from one government if it simultaneously proposes another alternative government drawn from within its ranks, which means that what happened in Austria could never happen in these countries. Incidentally, German-speakers in English tend to refer to caretaker governments as “technical governments,” which amuses me because it hews closely to the stereotype that German-speakers think mechanistically and in terms of engineering efficiency. And what could prove a more efficient caretaker government than one consisting entirely of judges and civil servants who never ran for election in the Bundestag and sullied themselves with partisan politics?

Austria in 2019 presents a very strange case. The President of Austria has taken the caretaker convention to its most perverse extreme by appointing a “technocratic provisional government” consisting of judges and civil servants who were never elected to the National Council and will simply act as ciphers for approving necessary and routine business and whose decisions will offend only those like me, and presumably most of you reading this and my other posts, who believe in ministerial responsibility. But the Constitution of Austria, in many ways a transcription of the Weimar Republic’s Constitution, forced the President to push caretaker government to the extreme.

The Federal Republic of Austria might want to consider amending its constitution to adopt constructive non-confidence and confirmation voting in line with the Federal Republic of Germany’s Basic Law of 1949 and Belgium’s constitution. Austria’s caretaker madness suggests that German-speakers need these precise guardrails codified into their constitutions in order to keep them out of trouble.

Similar Posts: 

• Comparative: Government Formation in Germany
• How Early Federal Elections Can Be Held in Germany
• Germany Is The New Belgium: Continental Parliamentarism and Caretaker Government
• The Merkel III Cabinet: Germany’s Longest Caretaker

[1] Phlip Oltermann, “Austria prepares for fresh elections after Ibiza video scandal,” The Guardian, 19 May 2019.

[2] Deutsche Welle, “Austria’s Caretaker Government Assumes Power After Video Scandal,” 22 May 2019; Deutsche Welle, “Austria: All Far-Right Ministers Leave Government After Video Scandal,” 20 May 2019.

[3] Deutsche Welle, “Austria’s Sebastian Kurz Calls for Snap Elections After Corruption Scandal,” 20 May 2019.

[4] Deutsche Welle, “Austrians to Hold Snap Elections in September After Corruption Sting,” 19 May 2019.

[5] Deutsche Welle, “Austria’s Caretaker Government Assumes Power After Video Scandal,” 22 May 2019.

[6] Deutsche Welle, “Austrian Parliament Topples Chancellor Sebastian Kurz,” 27 May 2019.

[7] Deutsche Welle, “Austria’s Loger in Charge Until Interim Cabinet Formed,” 28 May 2019.

[8] Deutsche Welle, “Austria Gets Its First Female Chancellor, Temporarily,” 3 June 2019.

[9] Austria, Federal Chancellery, “Ministers,” 1 July 2019; Wikipedia, “Bierlein Government,” 1 July 2019.

[10] France 24, “Austria Set for Early Elections on September 29,” 11 June 2019.

[11] Matthew Soberg Shugart, “Semi-Presidential Systems: Dual Executive and Mixed Authority Patterns,” French Politics no. 3 (2005): 324.

[12] James W.J. Bowden, “When the Bell Tolls for Parliament: Dissolution by Efflux of Time,” Journal of Parliamentary and Political Law 11, no. 1 (2017): 137-138.

[13] Rod Hague and Martin Harrop, Political Science: A Comparative Introduction, 5th Edition. (New York: Palgrave-MacMillan, 2007), 340-341.