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Last update: 25-05-2006
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Legal order - Austria

 

TABLE OF CONTENTS

I. Sources of law: I.
II. Hierarchy of the sources of law (structure of the legal system): II.
1. Guiding principles of the federal constitution: 1.
2. Primary and secondary Community law: 2.
3. “Ordinary” federal constitutional law: 3.
4. Federal legislation: 4.
5. Regulation: 5.
6. Order: 6.
III. Legislative process: III.

 

I. Sources of law:

Austrian law is primarily statute law. Customary law, by contrast, plays only a very restricted role. The case law of the highest courts, which lays down important guidelines as to the application of the law, is of great importance but judge-made law is not formally recognized as a source of law.

The Austrian constitutional law declares that the generally recognized rules of international law form part of federal law and it provides for international treaties to be incorporated into the Austrian legal system (general and specific transformation). The ranking of the international treaty provision within the domestic legal system is determined by its content. International treaties which amend or supplement the constitution require the same quorums as resolutions in respect of federal constitutional laws, in order to be approved in the National Assembly. The same requirements apply to resolutions on international treaties which amend or supplement the law as apply to the passing of bills. In principle, the Federal President concludes international treaties at the request of the federal government or of the federal minister empowered by it. Political international treaties which amend or supplement the legislation require the prior consent of the National Assembly. The Federal President may empower the federal government or the competent members of the federal government to conclude particular categories of international treaties which are neither political nor amend or supplement the legislation.

In accordance with the Austrian federal constitution, the nine federal provinces have their own provincial (constitutional) law in addition to the federal (constitutional) law. Provincial constitutional law must not be inconsistent with federal constitutional law and is therefore subordinate to it. However, no such order of precedence exists in principle between federal and provincial legal provisions. The provinces have also been able since 1988 to conclude international treaties in matters within their own domain; as before, however, the federal government takes precedence in external matters.

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II. Hierarchy of the sources of law (structure of the legal system):

The fact that the individual forms of law have different derogatory power shows that there is a hierarchy of sources of law (structure of the legal system). The more difficult legislative procedure gives the constitutional law greater durability. A federal constitutional provision thus normally requires a majority of two thirds of the votes in the National Assembly, with at least half of the members being present. Additionally, the provision produced in this manner must be expressly designated as a “constitutional law” or “constitutional provision”. A valid resolution on federal legal provisions in the National Assembly, on the other hand, requires the presence of at least one third of the members and an absolute majority of the votes cast.

1. Guiding principles of the federal constitution:

The guiding principles (basic principles) of the Austrian federal constitution are the most important legal provisions in the structure of the legal system. The basic principles of the Austrian federal constitution are as follows: the democratic principle, the principle of the separation of powers, the principle of the rule of law, the republican principle, the federal state principle and the liberal principle. In their entirety, these guiding principles form the basic constitutional order. They have specific constitutional significance because any overall amendment of the federal constitution can only be carried out after conducting a plebiscite in the legislative procedure. It is an overall amendment of the federal constitution, on the one hand, if the constitution is reworded in such a manner that one of its underlying guiding principles is abandoned or, on the other hand, if the relationship between these principles is substantially changed.

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2. Primary and secondary Community law:

The accession of Austria to the European Union on 1 January 1995 meant an overall amendment of the Austrian federal constitution. Since the accession, the decisive basic legal order in Austria is determined not only by Austrian constitutional law alone but also by European Community law (constitutional dualism). The prevailing view is that Community law takes precedence over domestic law, and also over ordinary federal constitutional law, but not over the basic principles of the federal constitution.

3. “Ordinary” federal constitutional law:

The constitutional law provides the “rules of the game” for political activity as it determines the legislative procedure, the status of the highest bodies within the State, the relationship between the federal government and the provinces as regards legislation and enforcement and the control of government activity by the law courts.

4. Federal legislation:

The basic principle of the rule of law in the federal constitution means that legislation is binding on the entire executive (administration and judicature). The federal constitution divides legislative powers between the federal government and the provinces.

5. Regulation:

Regulations are general legal provisions made by administrative authorities and directed at persons subject to the law. The general constitutional empowerment in this case relates only to implementing regulations for the purpose of specifying other general provisions (mostly of ordinary laws). Regulations which amend or supplement the law require express constitutional empowerment.

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6. Order:

Orders are primarily administrative instruments to execute the law which are directed at one or more individually specified persons.

III. Legislative process:

In accordance with the federal constitutional division of powers between the federal government and the provinces, various bodies are called upon to pass legislation. The National Assembly, together with the Upper House, is responsible for federal legislation. Whereas the 183 deputies of the National Assembly are elected directly by the people, the Upper House, which normally only has a right of objection within the legislative process, is elected by the provincial councils. Provincial legislation is the responsibility of the provincial councils.

Proposals for federal legislation are received by the National Assembly in the following ways:

  • as applications by its members (initiative applications)
  • as bills from the federal government (government bills)
  • as applications by the Upper House.

Additionally, any application presented by 100 000 persons who are entitled to vote or by one sixth of the persons entitled to vote in three federal provinces (a people’s petition) must be submitted to the National Assembly for its attention.

In practical political terms, federal government bills play the most important role. Federal government bills require the unanimity of the federal government (in the Council of Ministers) in order for them to be adopted. Adoption by the federal government precedes the assessment by the bodies (federal provinces, interest groups) called upon to assess the bill that has been drafted by the competent federal minister.

Bills passed by the National Assembly must, after the procedure in the Upper House (federal finance bills require no procedure in the Upper House – federal sovereignty of the National Assembly), be submitted by the Federal Chancellor to the Federal President for authentication. Every bill passed by the National Assembly must be referred to a plebiscite before authentication if the National Assembly so resolves or if the majority of the members of the National Assembly so demand. Additionally, every overall amendment of the federal constitution must be referred to a plebiscite. By his signature, the Federal President authenticates the constitutional enactment of federal legislation. The authentication must be countersigned by the Federal Chancellor. After certification by the Federal Chancellor, federal legislation is published in the Bundesgesetzblatt. Unless a federal act makes express provision to the contrary (retroactive effect or vacatio legis), it comes into force at the end of the day on which the issue of Bundesgesetzblatt containing the announcement is published and distributed.

An act can be repealed either expressly (formal derogation) or by the passing of a rule of law whose content is inconsistent with the earlier provision (substantive derogation) (lex posterior derogat legi priori). Specific regulations take precedence over general regulations (lex specialis derogat legi generali). Additionally, a statutory provision may itself determine the period for which it is valid.

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Last update: 25-05-2006

 
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