Austria's Legal System: Common Or Civil Law?

Austria's legal system is based on civil law, with its origins in Roman law. The country's laws are divided into public law, private law, and criminal law. The Austrian legal system is hierarchical, with constitutional law at the top, followed by individual laws, ordinances, and more specific regulations such as contracts, judgments, or decrees. The country's Constitution, which was drafted by Professor Hans Kelsen, was re-enacted in 1945 after World War II and amended in 1955 when Austria declared its permanent neutrality. The Austrian Constitution establishes a representative democracy with a two-chamber parliamentary system and a separation of powers. The country's legal system is independent of its administrative system, with judges appointed for unlimited periods and guaranteed independence in their decision-making.

Austrian law and the European Union

Austria is a federal parliamentary republic with a chancellor as the head of government and a president as the head of state. The country consists of nine provinces, each with its own government. The Austrian legal system is based on the civil law tradition and has its origins in Roman law. It can be divided into public law, private law, and criminal law.

Austria's Constitution establishes the country as a representative democracy with a two-chamber parliamentary system, recognising the separation of powers principle. The Nationalrat (National Assembly) holds most legislative power and is elected through general federal elections every four years. The members of the second chamber, the Bundesrat (Federal Assembly), are nominated by the diets of the nine autonomous provinces.

Austria's accession to the European Union on 1 January 1995, constituted a fundamental reform of its Constitution. Since then, Austria's basic legal order has been determined not solely by its constitutional law but also by EU law, resulting in a dual constitution. The prevailing view is that EU law takes precedence over domestic Austrian law and the national constitution but remains subordinate to the fundamental principles of the Austrian Constitution.

In the Council of the EU, Austrian government representatives attend meetings several times a year to coordinate policies and adopt EU laws. Austria also communicates with the EU institutions through its permanent representation in Brussels, ensuring its interests and policies are considered.

The EU budget, to which Austria contributes, is used to finance priorities and projects that individual EU countries could not fund alone. Austria benefits from its EU membership in many ways, including being part of the Single Market, a shared approach to migration, terrorism, and climate change, and improvements in transport infrastructure, public services, and medical treatment.

Austrian civil law

Austrian law is based on the civil law tradition and has its origins in Roman law. It is primarily written law, with the collection of laws applying at the Federal level.

The Austrian Constitution establishes Austria as a representative democracy with a two-chamber parliamentary system, in which the separation of powers is recognised. The Constitution also guarantees civil rights to citizens, which were first outlined in 1867.

The Austrian civil procedure code of 1895 broke new ground by adopting the principle of oral presentation, meaning that only matters presented orally in open court are important for a decision in a case.

In Austrian civil procedure, the judge and the parties form a "working group" when investigating the matter in dispute. The Austrian concept of an active judge gives the judge the duty to manage the case and induce truthful fact-finding using judicial discretion. While only five means of proof are explicitly listed in the Austrian civil procedure code, there is no limit to the means of evidence, which may be freely assessed by the judge.

Austrian criminal law

The country's criminal law is enforced by the ordinary courts, which are organised into four stages of the Austrian Judiciary: 115 district courts, 20 regional courts, four higher regional courts, and the Supreme Court. The Supreme Court, known as the Oberster Gerichtshof, is the most powerful court in Austria. It is the final instance in civil and criminal proceedings and is therefore the supreme institution of ordinary jurisdiction.

Criminal law in Austria is a broad concept, encompassing judicial criminal law and administrative criminal law. Judicial criminal law is enforced by the courts, while administrative criminal law is enforced by the administrative authorities. The criminal procedural provisions regulate the procedure for determining whether a suspect has committed a crime and whether sanctions should be imposed. These provisions are contained in the Austrian Criminal Procedure Law (StPO) and in secondary legislation.

Criminal offences in Austria are investigated by the Criminal Investigation Department (CID), which operates under the Criminal Intelligence Service Austria (BK). The BK acts as a service centre to guard against international organised crime and disseminates the Crime Monitor information, a database of all police reports and complaints.

The Austrian penal system focuses on human rights and the rehabilitation of inmates. Prisoners have a structured routine and spend most of their time outside their cells, engaging in work, educational activities, treatment, or sports and leisure activities.

Life sentences can be given in cases of murder, genocide, crimes against humanity, war crimes, major drug crimes, and severe acts of engagement in National Socialist activities. Parole may be granted to certain inmates after 15 years of imprisonment if prison officials are satisfied that the inmate will not reoffend. Juvenile offenders cannot be sentenced to life imprisonment and can only be sentenced to a maximum of 20 years' imprisonment.

Austrian public law

Public law includes constitutional law, administrative law, and public international law. The Austrian Constitution establishes Austria as a representative democracy with a two-chamber parliamentary system, in which the separation of powers is recognised. Most legislative power lies with the Nationalrat (National Assembly), which is elected by general federal elections every four to five years.

Austria's formal head of state is the "Bundespraesident" (Federal President), who is directly elected by the populace once every six years and is limited to two consecutive terms. The Federal President appoints the "Bundeskanzler" (Federal Chancellor) and other members of the Federal Government. The Federal Government is the highest administrative body, and the country is headed by the Federal Chancellor, who holds most political power. Federal legislation is first signed by the Federal President and then countersigned by the Federal Chancellor.

The Austrian Constitution also guarantees civil rights to citizens, including the right to a trial by a judge of law. The civil rights of Austrian citizens were first guaranteed in 1867 and were later 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 4 November 1950, which Austria ratified in 1958.

The Austrian legal system is based on Roman law and has a hierarchical structure. This means that laws and regulations in federal provinces must comply with higher tiers, such as the Austrian Federal Constitution and individual constitutional laws. Austria has been a part of the European Union since 1995, so EU Acts of Accession and the EU legal framework must also be respected.

Public law is enforced by administrative bodies and includes constitutional law, administrative law, trade law, and tax law.

Austrian private law

Austrian law is founded on the Federal Constitutional Law of 1920 and can be divided into public law and private law. Austrian private law is scattered over numerous laws, with the core still being the Austrian General Civil Code (ABGB) of 1811. This general private law can be divided into the law of obligations, property law, family law, and inheritance law.

The basis of private law is civil law or general civil law, which includes matters that can affect all citizens. Austrian private law deals with legal relations between citizens as subjects of private law.

International private law (IPR) deals with legal problems that have an international dimension. IPR also determines which country's private law should be used in such cases. Civil procedure law (procedural law) is a necessary supplement to substantive private law and regulates court proceedings and the enforcement of rights and obligations under private law in the Austrian legal system.

Special private rights contain legal matters tailored to specific groups of persons (e.g., employees, consumers, and entrepreneurs). The Austrian legal system includes the following special areas of law:

• Corporate law: This regulates issues arising from the association of several persons for a common purpose, such as the formation and management of companies, public limited companies, and associations.
• Competition law: Free competition is a fundamental principle of a free market economy, but it requires corresponding rules to ensure fair competition. Competition law should require that all competitors adhere to certain rules so that unfair practices do not lead to unfair competition.
• Transport law: This refers to all legal norms that deal with the transport and storage of economic goods, which is characterised by international regulations due to the cross-border nature of economic goods transportation.
• Consumer protection law: This offers consumers a better legal position and gives them additional or stronger legal rights, such as rights of withdrawal and warranty rights, as consumers are usually at a disadvantage compared to large corporations in terms of legal and factual knowledge.
• Labour law: Labour law lies at the intersection of public and private law and regulates issues connected with the performance of work in return for wages, focusing on worker protection, the right to holidays, dismissal regulations, etc.

The Austrian legal system is based on the civil law tradition and has its origins in Roman law.

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