The Structure of the Austrian Legal System - Law Austria & Austrian Law & Laws in Austria

The Austrian legal system is based on Roman law and has a hierarchical structure. This means that laws and regulations in federal provinces according to Law Austria must comply with higher tiers such as the Austrian Federal Constitution and individual constitutional laws. Another important thing to keep in mind when analyzing the Austrian legal system and Law Austria is that Austria has been a part of the European Union since 1995, so the EU Acts of Accession and the EU legal framework must also be respected. State authorities are subordinate to higher ranking laws, so they cannot enact new regulations without taking the top tier into consideration.

Austria does not function based on the Case Law system. Each judge has the freedom to interpret facts and come to a decision as they see fit, but without neglecting the importance of previous rulings.

When it comes to the sources of law in the Austrian legal system / Law Austria, it’s important to point out that laws are primarily written (gesatztes) and customary laws are rare. However, international treaties can be incorporated in the legal system if approved by the Austrian Parliament.

The Austrian Constitution dictates that each of the nine provinces has its own provincial constitutional law, but that law is subordinated to the federal constitutional law.

Provisions in Austria’s legal system - Law Austria & Austrian law

The Austrian legal system is governed by six guiding principles (Grundprinzipien), which together make up the fundamental constitutional order (verfassungsrechtliche Grundordnung):

  1. The democratic principle: all citizens are equal under the law and have equal access to legislative processes
  2. The principle of the separation of powers: the legislative, the executive, and the judiciary are separated, each holding independent powers, and the powers of one branch are not in conflict with those of the others
  3. The principle of the rule of law: all individuals, businesses, entities, even the state itself, are accountable under the law. Laws protect the fundamental human rights and are applied evenly
  4. The republican principle: supreme power is held by the people and their elected representatives
  5. The federal principle; the sharing of tasks between the nine Austrian provinces (Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria, Tyrol, Vorarlberg, and Vienna)
  6. The liberal principle, which focuses on the freedom, equality before the law, and consent of the governed.

When a new amendment to the Constitution disregards one of these principles or changes the relationship between them, a referendum is held. In addition, any law that violates the Constitution is deemed unconstitutional and repelled.

Private and public law in Austria - Law Austria

In order to understand how a specific legal issue in Law Austria must be solved, first we have to understand where that case will be assigned, and to do that, we need to create a distinction between public and private law.

Briefly, the main difference between private and public law is that public law deals with cases that affect society as a whole, the general public, while private law affects individuals, families, businesses, and small groups.

In public law, authorities issue decrees. In private law, the Courts in Austria pass judgments and orders.

Private law - Law Austria & Austrian law

In Austria, the contents of private law aren’t formulated into one single law. On the contrary, it is spread across many areas of practice and included in the Austrian General Civil Code (ABGB) of 1811.

Furthermore, Austrian private law can be split into four categories:

  • Law of obligations, which regulates the rights and responsibilities between individuals. This category can further be divided into contracts, quasi-contracts, delicts, and quasi-delicts.
  • Property law, which regulates the possessions that people own, whether it’s land (real property) or personal items (furniture, vehicles, jewelry, etc.).
  • Family law, which deals with families and domestic relations, including marriage, divorce, the treatment of children, and other related matters.
  • Inheritance law, which regulates the rights of a descendant’s survivors to inherit properties. It includes everything from the inheritance rights of children/grandchildren after their parents’ passing to the rights of spouses after divorce.

It’s also important to point out that when a legal problem affects an international party, then it falls under the International Private Law (IPR).

Depending on the groups of people that it applies to, Austrian private law also includes the special areas:

  • Corporate law, which includes matters such as the formation of companies and associations, as well as their management.
  • Competition law, which ensures that competing parties respect legal provisions and don’t resort to unfair practices.
  • Transport law includes all the regulations that lay out the storage and transport of economic goods within and across Austria’s borders.
  • Consumer protection law sets out the rights of individual consumers so that they’re not treated unfairly or misled by corporations.
  • Labor law is the connecting field between public and private law and covers matters such as the protection of workers and the rights that their employers should respect (a healthy work environment, compensation, vacation days, etc.).

Public law - Law Austria & Austrian law

Unlike private law, Austrian public law covers the activities of legal entities that have sovereign power. In other words, the relations between individuals and the Austrian state. Public law is enforced by administrative bodies, and includes categories such as constitutional law, administrative law, trade law, and tax law.

Search on Austrian Law - Austrian Laws in English - Search - RIS

Austrian Laws in English can be searched and reviewed at the Rechtsinformationssystem des Bundes (RIS) as follows:

https://www.ris.bka.gv.at/Englische-Rv/

https://www.ris.bka.gv.at/Ergebnis.wxe?Abfrage=Erv

Courts in Austria & Law Austria - Austrian law

In Austria, the judiciary is one of the three pillars of the rule of law, along with the legislative and executive branches.

Austria’s judicial system / Law Austria includes the Ministry of Justice, as well as the following courts:

  • Ordinary courts (ordentliche Gerichte), which are comprised of impartial judges, bound only by the law
  • Public prosecutor’s offices (Staatsanwaltschaften) – they are separate from the courts and represent the public interest in the administration of criminal justice.
  • Prisons are in charge of enforcing the sentences and orders of detention established by the courts above
  • Probation services, which are responsible for convicts released on probation or with conditional sentences. Most probation services now pertain to private association but, even so, they still activate under the Federal Ministry of Justice.

In their turn, ordinary courts function across several levels:

  • District courts – this where civil law cases and minor criminal offenses are judged. Most commonly, family and rent law cases go here and one of the requirements is for the dispute to be lower than €15,000.
  • Regional courts, or “courts of the first instance” deal with the cases that weren’t assigned to district courts, as well as appeals against the decisions of the district court.
  • Higher regional courts, or “courts of the second instance” are courts of appeal for all civil and criminal law cases. Austrian regional courts can be found in Vienna, Innsbruck, Linz, and Graz.
  • The Supreme Court is the highest instance in Austria and provides judgment on the last level, both in criminal and civil cases. The ruling of the Supreme Court of Austria is final. Once it has been made, it cannot be attacked at another court.

The Supreme Court of Justice - Law Austria, Austrian Law

The Supreme Court of Justice (Oberster Gerichtshof / OGH) in Austria is the final court of appeal for criminal and civil lawsuits other than administrative. The Austrian Supreme Court is one of three judicial bodies in the Republic of Austria. The Austrian judiciary is generally divided in general courts and courts of public law. The Supreme Court is the highest instance in civil and criminal matters. 

The role of judges in Austrian law - Law Austria

Judges play a vital role in Austrian law because they evaluate civil, administrative, and criminal law cases on behalf of the Austrian state. Judges are independent, they’re bound only by the law and they must never act in the event of a conflict of interest. A judge presides over the courtroom, hears and weighs the evidence from both sides carefully, and then makes an informed decision, taking care to respect the rule of law. In order to reach the fairest decisions and handle cases correctly, judges may also be helped by a variety of personnel. Austrian judges must comply with strict requirements and, apart from perfect knowledge of the law, they must also demonstrate outstanding moral character, and a flawless track record in pursuing justice. When a judge has a relationship with anyone involved in the case, then that is considered a conflict of interest and he or she is no longer allowed to handle that case.

Judges are appointed for life by the federal government and cannot be removed or transferred. Capital punishment is not used in Austria and the trial by jury was reintroduced in 1951.

Austrian attorneys - Law in Austria

In Austria, the responsibility of attorneys is to represent their clients in a court of law and help them take the right legal action depending on their case. Like judges, attorneys must demonstrate knowledge of Austria’s law to profess. However, while judges must be impartial and reach an objective decision, attorneys are bound by the Attorney’s Act (RAO) to be biased and consider their client’s best interest. The attorney is responsible only to their client and must suggest the legal course of action that benefits them. Attorneys are also bound by confidentiality, meaning that, without the client’s express consent, they cannot disclose details of the case. A lawyer can recommend their clients to settle a case or go to court.

There are more than 6,200 attorneys in Austria, specializing in various areas of Law in Austria. Their rights are represented by the Austrian Bar Association (ÖRAK), as well as the separate bar associations in each province.

All important regulations of Austrian law can be found online, both in the original German version and translated into English.