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In Austrian constitutional law, a supreme executive organ (German: oberstes Verwaltungsorgan), is an elected official, political appointee, or collegiate body with ultimate responsibility for a certain class of administrative decisions – either decisions in some specific area of public administration or decisions of some specific type. The president, for example, is the supreme executive organ with regards to appointing judges; the minister of justice is the supreme executive organ with regards to running the prosecution service; the president of the Constitutional Court is the supreme executive organ with regards to the operational management of the Constitutional Court. The Constitutional Court itself, on the other hand, is not a supreme organ because its decisions, while definitive, are judicial and not administrative in nature.
Although supreme executive organs, by definition, cannot be overruled by any other person or institution in the executive branch, the constitution still means for them to be politically answerable to the officials, institutions, or electorates that have installed them. The president, for instance, is elected by the people and can be recalled by the people; the chancellor is appointed by the president and can be dismissed by the president; governors are elected by provincial legislatures and can be removed by provincial legislatures. Most supreme executive organs can also be impeached or removed through parliamentary motions of no confidence.
Austria is a parliamentary republic. The constitution establishes a number of features that can make the country look semi-presidential from a distance; most notably, the Austrian chancellor and the rest of the cabinet are not elected by the legislature but appointed by the president, who is in turn elected directly by the people.[1] The semi-presidential elements are mostly nominal, however; the country is almost purely parliamentary in practice.[2] Like any other parliamentary republic, Austria has no systematic separation of powers between its legislative and executive branches of government;[3] the constitution engenders an intermingling of the two branches that has the effect of a fusion of powers instead.[4]
The intermingling exists on all three levels of government:
In a system like this, the way to prevent any one executive official or committee from becoming too powerful is a separation of powers within the executive. The Austrian constitution thus divides the set of administrative decisions that have to be made into numerous disjoint subsets such that ultimate responsibility for different subsets lies with different persons or institutions. A person or institution with ultimate responsibility for some class of administrative decision is a supreme executive organ.
The German word "Organ" in the sense of a person or committee acting on behalf of an institution is usually rendered as "body" by professional legal translators, including in cases where the "body" consists of a single individual. This is done partly for stylistic reasons and partly to avoid ambiguity; the English "organ" is occasionally used as a synonym for "branch of government".[12] Publications specifically about Austrian constitutional and administrative law, however, have historically preferred "organ".[13]
The Austrian constitution uses the term "supreme executive organ" multiple times but provides neither an intensional nor an extensional definition. Article 19 of the Federal Constitutional Law contains what appears to be a taxative enumeration of supreme executive organs, but this list is universally dismissed as specious and useless. The defining characteristics of supreme executive organs and the consequences of membership to the class have been established by case law and academic scholarship.
A supreme organ does not take orders (Weisungen) from any other part of the executive branch and cannot be overruled by any other part of the executive branch. Its decisions are final.[14] If an organ has been declared supreme by constitutional law or conclusively identified as supreme by jurisprudence, any mechanism that would allow its decisions to be appealed is automatically unconstitutional.[15]
A supreme organ acts exclusively on its own initiative. On the one hand, it cannot be forced to act.[16] On the other hand, its decisions cannot be made contingent on requests or nominations from other organs; it cannot be made to depend on the advice and consent of any other person or institution.[17] The one exception to this general rule is the president. Most of the powers of the president can only be exercised on request of the chancellor, one of the other ministers, or the cabinet as a whole.[18] Most decisions made on request of the chancellor or the cabinet do not become effective until countersigned by the chancellor; decisions requested by a minister other than the chancellor do not become effective until countersigned by that minister.[19]
A supreme organ is only supreme with respect to a specific class of decisions.[20] A governor, for example, is a supreme organ with respect to certain decisions within the purview of the province. Much of what provinces actually do, however, is assist the national government with matters of the national administration. When acting as an arm of the national administration, the governor takes orders from national administrators, most notably ministers.[21]
With the exception of the president, who discharges the powers and duties of the office either personally or not at all, supreme executive organs stand at the head of sizable bureaucracies and delegate most of their tasks to subordinate organs (nachgeordnete Organe). As a matter of general principle, supreme executive organs are vested with management authority (Leitungsgewalt), meaning they are in charge of setting policy, of most personnel decisions, and of the internal governance and discipline of their respective bureaucracies in general.[22] They also have injunction authority (Weisungsgewalt), the power to issue orders (Weisungen) to their respective subordinate organs that require or prohibit specific substantive acts and decisions.[23] Both powers follow from the postulate that supreme executive organs hold ultimate responsibility; an organ cannot be considered responsible for what it cannot effectively control. There are departures from this general principle, however. Some subordinate organs are "independent" ("weisungsfrei"); they are subject to management authority but not injunction authority.[24]
Executive organs can only exercise powers explicitly vested in them by statute and generally have to abide by the law, primary and secondary, constitutional and other. Supreme executive organs are not exempt from this rule.[25] Supreme executive organs are also not exempt from judicial review; while their decisions cannot be overturned by other members of the executive, they can be fought in court.[26]
On the one hand, a mechanism must exist for an ineffectual or misbehaving supreme executive organ to be removed. On the other hand, if removal is too cheap in terms of political capital or if the option is available to too many actors, the independence of the supreme executive organ becomes purely notional, the claim to ultimate responsibility a farce. The compromise implemented by the Austrian constitution distinguishes between political answerability for policy choices and judicial answerability for violations of the law. It involves three general rules:
An obvious exception to these general rules are the two supreme executive organs that are justices, the president of the Constitutional Court and the president of the Supreme Administrative Court. Being justices, presidents of courts receive lifetime appointments in order to guarantee judicial independence.[36] Even justices, however, can be removed in case of material misconduct:
Article 19 of the Federal Constitutional Law, the backbone of the constitution, empowers the National Council to enact incompatibility provisions that bar presidents, ministers, and members of provincial governments from holding positions in the private sector during their time in office.[41] In its first sentence, Article 19 states that "the supreme executive organs are the president, the ministers and state secretaries, and the members of the provincial governments" ("Die obersten Organe der Vollziehung sind der Bundespräsident, die Bundesminister und Staatssekretäre sowie die Mitglieder der Landesregierungen"). The language seems to imply that this list is meant to be an authoritative, taxative enumeration. Early scholarship has tended to accept it as such.[42] Modern case law and the modern scholarly literature observe that Article 19 is problematic in several ways:
Modern case law and the modern scholarly literature agree that the best approach is to simply be literal: a person or collegial body that is clearly meant to be supreme, executive, and an organ should be treated as a member of the class of supreme executive organs. The enumeration in Article 19 should be considered relevant only in the context of Article 19 itself: it should be read as a list of people that can be made subject to incompatibility legislation and should otherwise be ignored.[51]
In charge of public-facing substantive administration:[52]
In charge of the internal procedural management of courts, legislatures, or agencies:[20]
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