The Austrian Legal System and Laws: a Brief Overview
by Johannes Oehlboeck and Immanuel Gerstner, published on GlobaLex, June 2005 (GlobaLex is an electronic legal publication dedicated to international and foreign law research. Published by the Hauser Global Law School Program at NYU School of Law)
 

1. Introduction
2. Austrian Legal System
3. Legal Resources

4. Further Information
 

2. Austrian Legal System

2.2. Public Law: Constitutional Law

2.2.1 Overview

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 November 4, 1950, which was ratified by Austria in 1958.

2.2.2 Legislation / Hierarchy of Legal Sources

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 January 1 1995 required a "complete alteration" to the national constitution. Austrian constitutional law was thus joined with EU law as the most fundamental source of law (Dual-constitution). The general view is that EU law now takes precedence over domestic Austrian law and the national constitution, but is subordinate to the fundamental principles of the constitution.

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.

2.3. Private Law

2.3.1 Overview

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.

2.3.2 Main aspects of Private Law

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.

2.4. Criminal Law

2.4.1 Overview

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. 

2.4.2 Fundamental Principles of the Criminal Procedure

• The charge principle: every criminal procedure will be triggered and defined by the claims of a prosecutor. The prosecutors can be the public prosecutor (State Prosecutor), the subsidiary prosecutor or the private prosecutor.

• The legality principle: it is the duty of the State Prosecutor (subject to exceptions) to prosecute the offences of which he becomes aware whilst in office.

• The speech principle (the reading of statements from the preliminary proceedings by the examining magistrate or the police is only possible in limited circumstances.)

• The public principle (the public should only be excluded from a hearing on important grounds)

• The procedure must be carried out in front of a legally appointed judge.

• Participation of the public in the criminal justice (jury and juror).

• Establishment of the truth principle (the court must do everything in its power to clarify the state of affairs and should not limit itself to the examination of the claims from the state prosecutor and the defense).

• Independent Judgment Principle (the judge forms his opinion independently without outside interference)

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).

2.5 Austrian Court System

2.5.1 Overview

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.

2.5.2 Courts of public law 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.

2.5.3 Courts of ordinary Jurisdiction

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.