: 
The Austrian Legal System and
Laws: a Brief Overview
by Johannes Oehlboeck and Immanuel
Gerstner
Johannes Oehlboeck received
a law degree from the
Immanuel Gerstner holds a
law degree from the University of Salzburg (2000), a PhD in law (2001), and an
LL.M. from the New York University School of Law (2002). He currently works as
an associate at
Published June 2005
Table of Contents
1. Introduction
2.2. Public Law:
Constitutional Law
2.2.1 Overview
2.2.2 Legislation /
Hierarchy of Legal Sources
2.3. Private Law
2.3.1 Overview
2.3.2 Main aspects of Private Law
2.4. Criminal Law
2.4.1 Overview
2.4.2 Fundamental Principles of the
Criminal Procedure
2.5.1 Overview
2.5.2 Courts of public
law jurisdiction
2.5.3 Courts of ordinary
Jurisdiction
3.1 Online
3.1.1 The legal information system of die
Republic of Austria (RIS)
3.1.2 Further Online
Resources
3.2 Offline
3.3.1 Printed Legal Resources (in English)
3.3.2 Libraries
3.3.3 Legal Publishers
Austria lies in the heart of Europe, right between
Western Europe and the Central-Eastern Europe region. It has a population of
just over 8 million people, and the capital city is Vienna.
Austria is a democratic, federal republic. Immediately
after World War II, on
The Austrian Constitution establishes Austria as a
representative, or indirect, democracy with a two chamber parliamentary system,
in which the separation of powers principle is recognized. Most legislative
power lies with the Nationalrat (National Assembly), which is elected by
general federal elections every fourth year. On the other hand the members of the
second chamber, the Bundesrat (Federal Assembly), are nominated by the diets of
the nine autonomous Provinces (Länder). The Federal Assembly represents the
interests of the Federal Provinces.
Austria's formal head of state is the
"Bundespraesident" (Federal President), who is directly elected by the
populace. The country's government is headed by the "Bundeskanzler" (Federal
Chancellor), in whom most political power is vested. Federal legislation is
first signed by the Federal President and then countersigned by the Federal
Chancellor.
The civil rights of the citizens were first guaranteed
in 1867. These rights were adopted and incorporated into the present
Constitution, along with the rights provided by the European Convention on the
Protection of Human Rights and Fundamental Freedoms of
Constitutional law is given a higher status by virtue
of the fact that it is harder to amend. An amendment to a national
constitutional provision requires a two thirds majority in parliament, with at
least half of the members present and voting. The provision thereby adopted is
then known as a "Constitutional Law" or "Constitutional Regulation". By
contrast, to pass a valid motion in parliament relating to a law that is not
constitutional in nature, a simple majority of votes is required, with one
third of parliamentary members present and voting.
The highest ranking laws in the Austrian legal
hierarchy are outlined in the "Fundamental Principles" of the Austrian national
constitution. The Fundamental Principles are the following: the democratic
principle; the principle of the separation of powers; the principle of the rule
of law; the republican principle; and the liberal principle. As a whole, these
leading principles form the basic constitutional legal system. Particular
constitutional weight is thus accorded to these principles, so that any
"complete alteration" to the national constitution can only take place if first
agreed by the Austrian people in a referendum. A "complete alteration" to the
constitution takes place when the constitution is so radically amended that
either one of the leading principles needs to be removed, or the relationship
of the principles to each other becomes essentially altered.
Austria's entry into the EU on
Corresponding to national constitutional law and
national law is regional constitutional law and regional laws relating to each
of the nine Austrian federal regions. Regional constitutional law is
subordinate to national constitutional law and must not conflict with national
constitutional law. However, as a matter of convention, national laws that are
not constitutional in nature take no priority over regional laws.
Private law is divided in to general private law
applicable to all persons, and specialised forms of civil law, which is
applicable only to certain categories, such as commercial law for businessmen
or employment law for employers and employees. The major part of what is
considered general private law is regulated in a comprehensive private law code
called the Allgemeine Buergerliche Gesetzbuch (ABGB). Although case law is not
legally binding it does have decisive persuasive authority.
A number of fundamental principles, all of which originate
from Roman Law, form the basis of Austrian Private law. The principle of Privatautonomie
(individual freedom) is the freedom to pursue legal relations in the form and
manner determined by the parties. Said principle is expressed more precisely in
the principle of contractual and testamentary freedom (Vertragsfreiheit) which
includes the freedom (i) over the form of the contract, (ii) the content of the
contract, and (iii) to dissolve a contract. A further fundamental principle is
the principle of consensus (Konsensprinzip), which provides that any change in
the legal position can only be achieved by consent. Any contract infringing
good mores will be deemed void according to Section 879 ABGB. Good faith is
protected by Section 367 allowing those in good faith to acquire from bad faith
or non-entitled possessors.
Legal
Capacity - Any natural or legal person is able to bear legal
rights and obligations. Different forms of legal persons are recognized, such
as a corporation or a trust or certain legal persons, under public law. As far
as natural persons are concerned, contractual capacity is limited according to
age and certain other individual circumstances.
Contracts - To
establish a valid and binding contract between parties, the following
prerequisites must be satisfied: contractual capacity, consensus of the
parties, intention, possible and acceptable content, and if required the
observation of formal requirements. A defect in any one of these elements will
either render the contract void or give rise to a right to rescind the
contract. In case of a party's insufficient performance the non-breaching
party's remedies vary from price reduction to - e.g. if the defect cannot be
corrected and essential to the contract - collection of the goods and rescission.
Torts - The ABGB
provides a uniform system applying to both contractual and tortious damages.
According to Sections 1293 et seq. ABGB that person that caused damages to
another person or property shall be liable to compensate this damage to the
extent of restoring the previous position of the other party if: (i) the
damages would not have occurred but for the party's conduct or omission; (ii)
that conduct or omission was unlawful and fault on the part of the person
causing the damages is established.
Business
Associations - A general division between the types of business
associations that can be drawn are partnerships and corporations. The main
distinction between the two types is that the latter confers only limited
liability on its members. Austrian law knows two types of corporations: (i) Aktiengesellschaft"
(joint stock corporation) and (ii) Gesellschaft mit beschränkter Haftung
(limited liability company). An Aktiengesellschaft can be a private or a public
company. It is managed by a management board (Vorstand), which is appointed and
supervised by a supervisory board (Aufsichtsrat). The corporate form of a
limited liability company is simpler and more widely used. Only large limited
liability companies require a supervisory board. All corporations must be
registered in the Commercial Register, which provides publicly available
information about every corporation. Foreign corporations may establish branch
offices in Austria, which must also be registered in the Commercial Register.
Substantive criminal law (i.e. those provisions
concerned with the crimes themselves rather than the criminal process) is the
branch of public law that defines criminal acts and sets out the respective
criminal penalties. Criminal law is a wide concept, and it includes as a
separate sub-category, the so-called "non-criminal" penal law (concerned with
administrative crimes and disciplinary penalties). Thus, within the concept of
criminal law, one differentiates between judicial criminal law and
administrative criminal law depending on whether the criminal law is to be
enforced by the courts or by the administrative authorities. The law is, thus,
determined by the relevant body. The law must, however, comply with the
provisions of the constitutional laws which allocate the criminal justice to
the courts.
The requirements of culpability correspond to an
arbitrary (a reflex movement would for example not be seen as arbitrary),
factual (it must be a standard fact), unlawful and culpable (the act must be
linked to the offender; he must have some responsibility for it) behavior which
can be threatened by legal sanctions. An
act can only fulfill the requirements of culpability if it satisfies all the
characteristics of a type of crime as provided for by the law ("no punishment
without a lawful justification"). The elements of a crime (offences: tort and
crime) are regulated either by the Austrian Criminal Law (StGB) or in one of
the instruments of secondary legislation.
The criminal procedural provisions regulate the
procedure for determining whether a suspect has committed a crime and whether,
as a result, a sanction should be imposed on him. These provisions are
contained in the Austrian Criminal Procedure Law (StPO) and in secondary
legislation. The provisions regarding the preliminary criminal proceedings on
the imposition of a remand in custody or on the carrying out of an asset
seizure, house search or telephone surveillance are also regulated there.
The Fair trial principle and the principle of the
presumption of innocence (the accused remains innocent until his guilt is
proven) are guarantied; the accused must be acquitted if some doubts persist
due to some arguments indicating that he is guilty and others indicating the
opposite (Principle in dubio pro reo).
All jurisdictions in Austria proceed from the Federal
Republic. Verdicts and findings are proclaimed and published in the name of the
Republic. Austrian Law draws a basic distinction between two principal
jurisdictions: (i) tribunals and courts concerned with public law matters, and
(ii) the courts of ordinary jurisdiction.
Constitutional
Court (Verfassungsgerichtshof (VfGH) - Its task is to protect the civil
rights of the citizens and to ensure that legislation is in conformity with the
Austrian Constitution. Citizens may apply to the Constitutional Courts if acts
of a public authority directly violated any of their personal rights granted by
the Constitution. The Constitutional Court also adjudicates conflicts: (i) in
the legislative competences between the federation and the federal provinces;
(ii) between courts of ordinary jurisdiction and administrative authorities
and/or courts of public jurisdiction; (iii) between itself and the Admistrative
Court (Verwaltungsgerihtshof (VwGH)).
Administrative
Courts - A variety of administrative tribunal and appeals court exists to
review the decisions and actions of the administrative authorities. The administrative
tribunals are not strictly courts; however, proceedings before such tribunals fulfill
the fair trial requirement of Article 6 of the European Convention of Human
Rights (ECHR). The most important of these tribunals is the Independent
Administrative Tribunal (Unabhaengiger Verwaltungssenat (UVS)). The only
administrative court in Austria is the Verwaltungsgerichtshof. It reviews the
decisions and the exercise of power of the entire public administration. The
administrative tribunals can be subject to judicial determination.
The courts of ordinary jurisdiction deal with all
matters outside the competence of the public law courts, i.e. matters of
private law, criminal law, as well as aspects of competition law.
Courts of
first instance - Depending on the facts of the case, such as the
amount claimed in civil cases or the type of offense in criminal cases, the
case falls within the jurisdiction of either a District Court (Bezirksgericht) or
a Regional Court in the first instance. If the first instance court is a
District Court, decisions are taken by a single judge. In civil cases also
before Regional Courts, decisions are for the most part taken by a single
judge. On the other hand, the composition of the Regional Court in criminal
matters differs according to the nature of the proceedings and the possible
penalty. It may also be constituted as a Schoeffengericht with two professional
and two lay judges, or a Schwurgericht with three professional judges and a
jury of eight people.
Courts of
second instance - In civil matters where the case was initially
brought before a District Court, an appeal must be made to a Regional Court.
Where a Regional Court already decided in the first instance, decisions must be
appealed before a Province Court (Oberlandesgericht). On the other hand, in
criminal matters, the Province Courts are always the second instance courts.
Supreme
Court - The Supreme Court (Oberster Gerichtshof (OGH)) is the highest court
in civil and criminal cases. It has 6 Senates for criminal cases, 10 for civil
cases and 2 additional for labour cases and social cases. The Supreme Court
hears cases at last instance only. The composition of respective Senates
depends on the importance of the matter brought before the Supreme Court. In criminal
cases the Supreme Court will only hear appeals for nullity against a guilty
verdict of a Schoeffengericht or a Schwurgericht or an appeal against the
penalty.
The Legal Information System of the Republic of Austria (RIS)
is a computer-assisted information system on Austrian law, which is coordinated
and operated by the Austrian Federal Chancellery. Its beginnings date back to
1983 when the essential features of the system were designed. After federal
legislation had been incorporated into the system, decisions of the supreme
courts started to be included. A section of the Legal Information System offers
a selection of important Austrian laws in English translation.
The Legal Information System contains the following
databases: Federal Law Gazette (Bundesgesetzblatt), Draft bill, Government
bill, Federal law, State Law Gazette, Municipal law, European Community Law,
Case-law documentations, Instruction edicts, Instruction edicts of the Federal
Ministry of Justice, and Austrian laws in English.
The federal law database covers 99% of Austrian
federal law. Amendments are incorporated as soon as they are promulgated so
that the database always contains the applicable version of a document (one
document: 1 section or 1 article or 1 annex). In addition to the applicable
version, many norms also offer the opportunity to access previous versions,
making it possible for the user to reconstruct the development of the
regulation.
As a result of the cooperation with the office of the
State (regional) government, the State Law Gazette contains all issues of the
State Law Gazette in their original versions of the Austrian Provinces. The
Municipal law database contains the laws of some Austrian municipalities. The
database also contains selected municipal laws of Austrian Provinces.
The European Community Law Database (CELEX) contains
the European Community law. The Austrian Federal Chancellery receives the data
from The Office for Official Publications of the European Communities. The
CELEX database is made up of the following sections: treaties, external
relations, secondary legislation, complementary legislation, preparatory works,
case law, national measures, parliamentary questions, consolidated texts (at
present time there are no documents available), official journals (C-series), and
EFTA documents.
Case-law is now a third key component of the Legal
Information System. The databases contain both the legal principles and the
full text of the rulings. The database contains the case-law of the
Constitutional Court (nearly all rulings since 1980), the Administrative Court
(comprises nearly all its decisions since 1990; substantial rulings are also
available from previous years), of the Supreme Court (decisions of civil and
criminal law), the Independent Administrative Tribunals (selected rulings since
1991), the Independent Federal Asylum Board (selected rulings since 1998), the
Environmental Senate, the Procurement Review Authorities (rulings of the
Federal Public Procurement Review Authority, the Federal Public Procurement
Arbitration Body since 1997 and the Procurement Review Authorities of Salzburg
and Vienna since 2004), the Data Protection Commission, the Federal
Communications Board, the Appeals Tribunal and Supreme Disciplinary Commission
(case-law on disciplinary matters and matters pertaining to employee transfers
in the Federal Government since 1999) and the Supervisory Tribunal for
Employees' Representation (case law on matters of employees' representation).
Austrian Business Law
Heller Karl / Löber Heinz / Georg Bahn / Hubner / Horvath
Legal, Accounting and Tax Aspects of Business in Austria - Manz Verlag
Labour Law and Industrial
Relations in Austria
Strasser Rudolf - Manz Verlag
1992 , 208 Pages, ISBN: 3214056808
Company Law & Accounting in
Austria
Andrewitch / Hammerl / McFerren / Prachner / Simon
A translation of the related
provisions of the Commercial Code, etc.
Manz Verlag, 1995, 316 Pages,
ISBN: 3214002163
Austrian Labour Law
Goldmann Henry / Komar Andrea /
Unterweger Josef
Linde, 1999, 175 Pages, ISBN:
3851228863
European Tort Law 2002
Koziol Helmut / Steininger Barbara
Tort and Insurance Law Yearbook
Springer-Verlag, 2003
, 596 pages, ISBN: 3211004866
Legal English: German/English -
English/German
Köbler Gerhard
Manz Verlag, 2005
, 473 pages, ISBN: 3214002872 ,
The Austrian Banking Act
Hausmaninger Christian
Special Issue for the Österreichische Nationalbank
Manz Verlag, 2002, 278 Pages, ISBN: 3214002341
The Austrian Privatstiftung
Bank Privat AG, 2002, info@bankprivat.com
Games of Chance in the EU and in Austria
Strejcek Gerhard
Law - Internet - Social Aspects
Linde, 2002 ,168 Pages, ISBN:
3707303772
The Austrian Legal System
Hausmaninger Herbert
Manz Verlag, 2003 , 327 Pages, ISBN: 3214002899