Category Archives: Germany

Who’s in charge when the president is gone? Acting presidents in European republics

The premature termination of a presidential term – be it by impeachment, resignation or death of the incumbent – is generally a rare phenomenon so that the respective regulations belong the constitutional provisions that are applied least often in political practice. Nevertheless, in recent years a number of European republics had to activate these stipulations, often for the first time. This post compares the regulations on acting presidents in European republics and discusses the consequences for the separation of powers and potential for conflict.

Acting German Federal President, Speaker of the Federal Council and Minister-President of Bavaria Horst Seehofer in 2012 | © German Presidential Office

The resignations of German Federal Presidents Horst Köhler in 2010 and Christian Wulff in 2012 presented the first instances in which speakers of the Bundesrat had to take over presidential duties. Similarly, the tragic death of Polish President Lech Kaczyński in 2010 was the first event in post-1989 Poland that required the Sejm Marshal (speaker of the lower house) to temporarily fulfil the role of president. In Romania, the two impeachment attempts against president Traian Basescu in 2007 and 2012 also meant that the speaker of the Senate acted as president while the population was consulted in referenda. On the other hand, when Slovak president Schuster needed to receive specialist treatment in an Austrian hospital in 2000, the speaker of parliament and Prime Minister fulfilled his duties in tandem.

The above examples show that European republics show a great variation in who becomes acting president. In fact, Bulgaria and Switzerland are the only European republics with a functioning vice-presidency (although due to the collegial nature of the Swiss executive its position/relevance differs significantly) [1] and In the remaining countries it is not always obvious who takes over presidential duties in the case of presidential impeachment, resignation or death. The default option is to temporarily devolve the function to a representative of parliament (in all but Bulgaria, Finland and Switzerland representatives of parliament are involved), yet even here differences exist that have consequences for the division of power.

In France, Germany, Italy and Romania the speaker of the second chamber of parliament. As – except for Italy – the government is not responsible to the second chamber this arrangement guarantees a mutual independence of acting president and other institutions. Even though Austria and Poland also have bicameral system, presidential duties here are performed by the speakers of the first chamber and thus by politicians that are more prominent in everyday politics and usually belong to the governing party. In Austria this is partly mitigated by the fact that the speaker and the two deputy speakers perform this role together, yet in Poland the stipulation proved to be controversial – not only because the generally more political role of the Polish Sejm Marshal but also because of the fact that acting president Komorowski was the government’s candidate in the presidential elections. In the Czech Republic, likewise a bicameral system, presidential duties are also fulfilled by the speaker of the first chamber, yet in cooperation with the Prime Minister.

Map_of_EU_presidents away2_

Countries with unicameral systems cannot generally choose a more independent political candidate, yet as the examples of Iceland and Ireland show it is still possible to create less political alternative by pairing them (among others) with the Chairman of the Supreme Court in multi-member committees that jointly fulfil the position of acting president. Estonia shows another way of ensuring independence of the speaker of parliament as acting president in a unicameral system. The constitution foresees that speaker of parliament temporarily gives up their function to act as president and a new speaker is elected for that period to maintain a clear separation of powers.[2] Last, only Finland and Malta place the role of acting president in the hands of the Prime Minister which is even more exceptional when considering the great differences between the two political systems.

The comparison above has shown that variations in who becomes acting president do not vary according to the mode of presidential election or presidential powers and their origin often predate the current political system. An example for this are the regulations in the Czech Republic and Slovakia which both based their regulations on constitutional drafts that still were still designed for the countries’ functioning within a federal Czechoslovakia. Once the break-up was agreed and quick adoption of new constitutions was needed, the presidency was merely added and the actors that previously represented the republic at federation level became the designated acting presidents (Slovakia only introduced a co-role for the speaker of parliament in 1998 as it turned out that the constitution did not transfer enough power to the Prime Minister as acting president to maintain a functioning state after parliament failed to elect a new president).

The question of who is in charge when the president is gone might appear relatively insignificant at first glance given the rarity of early terminations of presidential terms or long-term absence of presidents during their term. Nevertheless, the different stipulations strongly affect the degree to which the presidency can or is likely to still fulfil its function as check-and-balance on other institutions while it is vacant. While this becomes more relevant the longer there is a vacancy in the presidential office, it still changes the balance of power within a political system already in the short term and therefore merits attention. For instance, during the one month that Slovak president Rudolf Schuster spent in hospital in Austria in 2000, Prime Minister Dzurinda and National Council speaker used their position as acting presidents to veto three bills to which Schuster had previously declared his opposition. Only shortly afterwards, the government majority passed the bills again and thus made sure that Schuster could no longer veto the bills or request a review before the constitutional court.

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[1] The Cypriot constitution also institutes a vice-presidency which is reserved for a Turkish Cypriot while the post of president is to be held by a Greek Cypriot. Initially a Turkish Cypriot vice-president served alongside a Greek Cypriot president, yet the vice-presidency has been vacant for about 50-40 years. The start date of the vacancy is difficult to establish – while Turkish Cypriots have not participated in government or parliament since the 1963 crisis, the title of vice-president appears to have been used by Turkish Cypriot leaders until the coup d’état in 1974.
[2] Estonian members of government are also required to give up their place in parliament upon appointment and another MP enters parliament in their place for the time of their appointment.

Two grand coalitions formed – Austria and Germany

During the past week, Conservatives and Social Democrats in both Austria and Germany finally agreed on the formation on so-called ‘grand coalitions’. While a coalition of the two largest parties has been nothing new for Austria (since WWII both parties have only ever not been in a coalition between 1966-1986 and 2000-2006), in Germany it is only the third pairing of this kind since 1949 and the second since German unification in 1990. Nevertheless, the government formation process turned out to be lengthy not only in Germany, but also in Austria.

Seat distribution in the Austrian National Council and German Bundestag_presidential-power.com

In Austria, the Social Democrats (SPÖ) have been the senior partner in a coalition with the Austrian People’s Party (ÖVP) coalition since 2007. Both parties suffered losses in the elections and despite the announcement of the ÖVP to also hold talks with the right-wing Freedom Party (FPÖ; a coalition of ÖVP and FPÖ had resulted in international outrage in 1999/2000) a continuation of the grand coalition was the only practicable option. The main difficulties in the negotiations were not only policy differences between parties but also the budgetary deficit and the SPÖ’s insistence on a leading role (despite having won only 5 more seats than the ÖVP). In early December, ÖVP even appealed to President Heinz Fischer to ease coalition talks (a surprising step given the largely ceremonial role of the Austrian president and the fact that Fischer himself is a SPÖ member).

In Germany, the Christian Democratic Union (CDU) and its Bavarian counterpart, the Christian and Social Union (CSU), fell only four seats short of an absolute majority and it was thus clear that they would be part of the next coalition. After their previous junior coalition partner, the (economically & socially) liberal Free Democrats (FDP) failed to enter parliament, CDU/CSU held talks with both the Social Democrats (SPD; second largest party in parliament) and the Greens, yet eventually opted for coalition talks with the SPD. Here, too, the insistence of the CDU/CSU to impose their policy proved to be a hindrance, although the most controversial topic turned out to the – overall less significant – introduction of tolls on German motorways that would only apply to foreigners (a measure proposed by CSU chairman Seehofer). Eventually, the SPD moved to ask its 475,000 members for approval of the coalition treaty (the threat of which had allowed them pursue a two-level bargaining strategy and arguably push through more of their demands) which further lengthened the process. As 76% of voting members (70% turnout) voted for the coalition, the SPD emerges from the risky manoeuvre with new strength.

duration of government formation process_Austria_Germany
Source: Diermeier, D., P. Van Roozendaal.(1998) “The duration of cabinet formation processes in western multi-party democracies.” British Journal of Political Science 28.4: 609-626; own additions

In effect, coalition talks in both countries lasted much longer than the average of years past. In Germany, the formation took almost twice as long as the average duration of post-election government formations (and still 21 days longer than the formation of the last grand coalition in 2005). In Austria, the formation process only lasted a good three weeks longer than the post-WWII average (although it needs to be noted that the average in the last 20 years has been 82 days, so that the formation of the new government appears to have been accomplished slightly faster than this more recent average).

As shown below, the final distribution of ministries largely confirmed Gamson’s Law (the nominal under-representation of the SPÖ and CDU is balanced by the fact that their candidate becomes chancellor; the over-representation of the CSU as the smallest party also belongs to the known exceptions to the law). 

government party seat share and portfolio allocation

In Austria, the nomination of 27 year-old Sebastian Kurz (ÖVP) as foreign minister came as a surprise to many (the ministry had previously been headed by ÖVP chairman and deputy chancellor Spindelegger who became finance minister). The fact that there will be no minister exclusively responsible for science and research has also prompted some discussion among and resistance from academics. In Germany, most speculations about ministerial nominees proved true (although parties waited with the official announcement until the SPD members’ vote on the coalition treaty had passed), the only real surprise being the nomination of the potential Merkel successors Ursula von der Leyen (CDU) as minister of defense. For a full list of cabinet members see below:

Austria
Chancellor: Werner Faymann (SPÖ, male, 53)
Deputy Chancellor/Finance: Michael Spindelegger (ÖVP, male, 53)
Family & Youth: Sophie Karmasin (ÖVP, female, 46)
Justice: Wolfgang Brandstetter (ÖVP, male, 56)
Foreign Affairs & Integration: Sebastian Kurz (ÖVP, male, 27)
Agriculture: Andrä Rupprechter (ÖVP, male, 49)
Economy & Science: Reinhold Mitterlehner (ÖVP, male, 58)
Interior: Johanna Mikl-Leitner (ÖVP, female, 49)
Social Affairs: Rudolf Hundstorfer (SPÖ, male, 63)
Education & Women: Gabriele Heinisch-Hosek (SPÖ, female, 52)
Infrastructure: Doris Bures (SPÖ, female, 51)
Defence: Gerald Klug (SPÖ, male, 45)
Health: Alois Stöger (SPÖ, male, 53)
Special tasks/Head of the Chancellor’s Office: Josef Ostermayer (SPÖ, male, 52)

Germany
Chancellor: Angela Merkel (CDU, female, 59)
Deputy Chancellor/Economy & Energy: Sigmar Gabriel (SPD, male, 54)
Foreign Affairs: Frank-Walter Steinmeier (SPD, male, 57)
Finance: Wolfgang Schäuble (CDU, male, 71)
Interior: Thomas de Maizere (CDU, male, 59)
Defence: Ursula von der Leyen (CDU, female, 55)
Labour: Andrea Nahles (SPD, female, 43)
Health: Herrman Gröhe (CDU, male, 52)
Justice & Consumer Protection: Heiko Maas (SPD, male, 47)
Family, Youth & Pensioners: Manuela Schwesig (SPD, female, 39)
Science & Research: Johanna Wanka (CDU, female, 62)
Environment: Barbara Hendricks (SPD, female, 61)
Infrastructure & Internet: Alexander Dobrindt (CSU, male, 43)
Foreign Aid: Gerd Müller (CSU, male, 58)
Agriculture: Hans-Peter Friedrich (CSU, male, 56)
Special tasks/Head of the Chancellor’s Office: Peter Altmeier (CDU, male, 55)

Germany – Ex-president Wulff goes on trial

On 17 February 2012, Christian Wulff announced his resignation as Germany’s 10th federal president. This unusual step had been preceded not only by a request of the prosecution of Hannover to lift Wulff’s immunity to be able to launch an investigation into the claims of corruption. It also followed almost two months of public discussion about the president’s private finances, the nature of his private gains in various political deals while being minister-president of Lower Saxony, and his attitude towards the press. This article offers a brief overview of the events leading to and following Wulff’s resignation and explains the subject and potential outcomes of the trial as well as its significance.

From private loan to state affair
Following revelations in 2009 that Christian Wulff (then still minister-president of Lower Saxony) and his wife had received free upgrades on flights to visit their friends Egon and Edith Geerkens in Florida (public officials must not accept gifts above the value of €10), the opposition asked Wulff whether he maintained business relations with Mr Geerkens. While Wulff denied the existence of such relations, the German tabloid BILD revealed in December 2011 (Wulff had then already been president for 18 months) that Wulff and his second wife had received a private loan of €500,000 from Geerkens to buy a house. His lawyers first argued that Wulff had not lied to the state parliament as the loan had come from Egon Geerken’s wife Edith. However, as soon emerged Edith Geerkens did not dispose of sufficient financial resources and had agreed on a separation of property within the marriage, so that the loan had actually been granted by her husband. Only a few days after facing questioning in parliament, Wulff furthermore arranged a new loan with a private bank seen by many observers as evidence that Wulff wanted to safeguard himself against further allegations.

In early January 2012 newspapers then revealed that president Wulff left an agitated message on the voicemail of the editor-in-chief of BILD before the scandal broke and threatened with consequences. Not having issued a public statement on the affair yet, Wulff appeared on public television and promised to provide answers to any open questions. Nevertheless, in the following weeks newspapers continued to uncover several additional cases in which Wulff allegedly received benefits in exchange for political favours, with the majority dating back to Wulff’s time as minister-president of Lower Saxony. A major part in this were holidays Wulff and his family had spent on invitation of and financed by influential German businessmen (incidentally, Wulff’s spokesperson was dismissed for accepting holidays during the course of the affair). At the same time, a number of public prosecutors in German federal states started tentative investigations yet most were dropped after a few weeks. Eventually, the prosecution of Hannover (the state capital of Lower Saxony) sent a request to the speaker of the German Bundestag to lift the president’s immunity – the basis being that film financier David Groenewold paid for Wulff’s holiday on several occasions.

Charges, trial, and potential outcomes
The prosecution continued to focus mainly on Wulff’s holidays yet also investigated other allegations. In early 2013, the prosecution then charged his former spokesperson Olaf Glaeseker with corruption and began to prepare similar charges against the former president and Groenewold. Nevertheless, already in March 2013 the prosecution offered Wullf to cease the investigation in exchange for paying a €20,000 fine (a relatively common procedure if the sum in dispute is below a certain threshold). Wulff rejected the offer and the prosecution applied for opening a trial on charges of corruption against Wulff and Groenewold in April 2013. While the court agreed to open the trial, it only did so under charges of ‘unlawful acceptance of benefits’ and not the more serious charges of corruption. A verdict can be expected for April 2014.

The concrete cases for which Wulff and Groenewold are tried might appear trivial and even far-fetched to outside observers – Wulff is accused of accepting €510 for a night at a hotel (including costs for childcare during his stay), €209 for a dinner, and €3,209 for a trip to the Oktoberfest in Munich (including costs for 4-5 people travelling with Wulff and his wife) from Groenewold. In exchange, Wulff is thought to have asked others to help with the promotion of one of Groenewold’s films and appears to have been instrumental in securing state funding for a production of Groenewolds company a few years earlier. All this happened before Wulff became president. Nevertheless, the trial has great significance for several reasons. First, close personal relationships between politicians and businesspeople (including holidays spent together) are far from unusual. The trial will thus help to shed light on such networks and help to define which behaviour is still considered legal and which is not. Second, the trial has already raised questions about the tightening of anti-corruption legislation in Germany. Third, it is the first time in German history that a former or current head of state had to answer charges. Due to its ceremonial character, the German presidency depends on officeholders’ integrity and ability to act as a ‘moral authority’. Irrespective of its outcome, the trial will thus affect the selection of candidates for office in the future.

Should Wulff be found guilty, the sentence is likely entail at least a hefty fine, theoretically even a jail sentence of up to three years. However, due to the relatively small sum in question and because Wulff has no previous convictions the latter seems unlikely (although Wulff might be placed on probation for a limited amount of time). Due to the lack of precedents, it is not yet clear in how far the court will take Wulff’s high political position at the time into consideration. Nevertheless, as a former lawyer Wulff will be considered to possess an ‘increased sense of justice’ and might thus receive a higher sentence than Groenewold.

The role of presidents in government formation – Austria and Germany

by Philipp Köker

In the last month both Germany and Austria elected new federal parliaments; however, in neither case did the outcome predicate a particular coalition between political parties. In Germany, the failure of the (economically and socially) liberal Free Democratic Party (FDP) to enter parliament has meant that the clear election winners – Angela Merkel’s Christian Democratic Union (CDU) and its Bavarian sister party, CSU – are left without their previous coalition partner. In Austria, Social Democrats and the People’s Party (ÖVP) received just enough votes to continue the ‘grand coalition’. Nevertheless, the ÖVP’s announcement to also conduct coalition talks with the right-wing Freedom Party (FPÖ) and eurosceptic ‘Team Stronach’ has called its continuation – at least temporarily – into question.

Party leaders in both countries are still in the phase of exploratory talks, but Austrian president Heinz Fischer (SPÖ) and his German counterpart Joachim Gauck (non-partisan) have already met with party leaders to discuss the election results and hear about progress in forming a new government. This post will provide a brief comparison of the presidents’ powers in government formation after elections and assess the likeliness of presidential interference.

Formal powers

The powers of the Austrian president in the area of government formation are far-reaching and extend beyond those in other semi-presidential democracies. The constitution stipulates that the president appoints the Chancellor and on the Chancellor’s proposal other members of government. Due to Austria’s ‘negative parliamentarianism’ there is no vote of investiture for but the Chancellor and cabinet members are sworn into office by the president and then have to ‘present themselves’ to parliament within seven days.

In comparison, the German president’s formal powers are much more limited. The president proposes a candidate for Chancellor to parliament who then has to be elected by an absolute majority. If the president’s candidate is unable to garner support from a majority of deputies, it is parliament’s turn to propose and elect another candidate within the next fourteen days. Even if parliament fails to elect a new Chancellor in this time period, there is a final vote in which a candidate is elected by relative majority. Only then has the German president some leeway in decision-making as s/he can decide whether to appoint a candidate elected by relative majority (any candidate by absolute majority has to be appointed) or dissolve parliament.

The realities of the systems

As most other parliamentary and semi-presidential constitutions, the German Basic Law and the Austrian Federal Constitutional Law do not formally restrict presidents in their choice of candidate for the head of government. Nevertheless, both presidents are limited by the political realities of the systems.

In Austria, parliament can remove the government by the ways of a no-confidence motion at any time and the president thus needs to nominate a formateur who is able to negotiate a majority coalition. While the constitution does not specify a deadline until which the president has to nominate a new Chancellor, a government without a majority would likely be incapable of governing. Except for 1999, Austrian presidents have thus always nominated the representative of the largest party in parliament (although there have been about half a dozen cases where presidents opposed particular candidates for cabinet posts) and no government has had to face a no-confidence motion right after its appointment.

In Germany, presidents have also rather waited for the end of coalition negotiations between parties to then propose the candidate for Chancellor who has a majority behind them. Yet as parliament can elect its own candidate after the rejecting the president’s choice, the nomination is less consequential. Furthermore, the stipulation of a ‘constructive’ vote of no-confidence means that parliament can only dismiss a Chancellor/government by simultaneously electing new one – leaving the president to merely formalise parties’ actions.

Potential for presidential involvement

Without wanting to speculate about the outcome of government formation in Austria and Germany, the role of presidents will likely be equally marginal. While the Austrian constitution gives the president much more leeway in decision-making, the system has developed into a parliamentary one by all but name. President Fischer might stress the international outcry caused by the inclusion of the far-right FPÖ into the government in 1999 and 2003, yet any interference beyond this will be met with resistance from parties and citizens. Due to constitutional constraints and established political practice, President Gauck will also limit his involvement in the formation of a new German government to urging parties to quickly conclude their negotiations and to overcome the differences stressed during the electoral campaign.

More on the results of the German elections and the Austrian elections on the website of The Economist.