As a general rule, entering corporations between the hospitality sector between 11:00 p.m. and 6:00 a.m. is prohibited due to the corona measures. “The operator may only allow customers to enter the premises between 6 a.m. and 11 p.m.”, says the “COVID 19 Relaxation Ordinance” issued by Minister of Social Affairs Rudolf Anschober (Greens) on April 30 (Section 6 Paragraph 2 ).
Experts are controversial as to whether these provisions could apply to Van der Bellen. The Relaxation Ordinance only mentions that the “operator” must not allow the customer to enter the premises after the curfew. In connection with the COVID Measures Act, the provision must be read in such a way that customers can also be punished, explained Karl Stöger, professor of public law at the University of Graz in the “Press”.
This COVID-19 measures law, which was passed in March, includes the basic maximum penalties for violations of corona measures set in March (Section 3 Paragraph 1 and Section 3 Paragraph 2): “Anyone who enters a permanent establishment whose entry is prohibited (…) commits an administrative offense and is responsible for one Punish a fine of up to 3,600 euros, “it says. Operators face significantly higher penalties: “Anyone who, as the owner of a permanent establishment, does not ensure that the permanent establishment, the entry of which is prohibited (…), is not entered, commits an administrative offense and is fined up to EUR 30,000 punish.” According to the Ministry of Social Affairs, there is also the possibility of collecting fines by means of an administrative fine.
Stöger told APA that there are different legal opinions among experts. The question was, for example, whether staying in the business premises after the start of the curfew is punishable by the guest.
The constitutional lawyer Heinz Mayer also pointed out that it is questionable whether a mere stay in a publicly accessible sidewalk garden can be covered by the regulation at all. If the landlord closes his doors at 11 p.m. and the guest stays in the sidewalk on the street, Mayer sees no possibility of punishment, because everyone could take a seat on the armchair. This is only problematic if the guest orders something or is served something after 11 p.m. – or if the guest is not complemented from the restaurant itself or from a garden that is not open to the public. Also from the Ministry of Social Affairs there was no clear legal information on these questions on Monday for the time being.
Federal President Van der Bellen and his wife Doris Schmidauer were caught by the police in the sidewalk garden of an Italian in the center of Vienna in the night of Sunday at 12:18 a.m. – almost an hour and a half after the prescribed Corona curfew – together with friends. Officially, the restaurant was already closed at this point. Van der Bellen admitted the mistake that he had “chatted and unfortunately missed time”, he said. He also announced that he would like to pay any penalties for the landlord.
On Monday, the Vienna City Administration responded to APA’s request that the relevant facts of the matter had been received by the police on Monday morning. This is now being legally examined by the responsible district offices, said a spokeswoman. Otherwise, please understand that you will not comment on an ongoing procedure.
The prerequisite for official persecution of a Federal President is the approval of the Federal Assembly (joint meeting of National Council and Federal Council members). To do this, the authority would have to submit an application to the President of the National Council. A simple majority would then be needed in the Federal Assembly, lawyers Mayer and Stöger and constitutional lawyer Theo Öhlinger told APA.
There was no comment on this case on Monday by Interior Minister Karl Nehammer (ÖVP): “In my view, everything has been said,” he said. The matter is settled for SPÖ leader Pamela Rendi-Wagner: “I think the most important thing about mistakes is when they have been made, that you have to admit them quickly, that you apologize and that you stand up for them.” All of this applies to the Federal President. The Federal Chancellor could take this as an example, said Rendi-Wagner with regard to Sebastian Kurz’s (ÖVP) recent visit to Kleinwalsertal.