Introduction from Hierarchy.docx

Hierarchy of Law (Law’s architecture) International Law EU Law Constitution (Verfassung) (basis of every law - special position) Acts of Parliaments (Gesetze) Decrees (Verordnung) Municipal Acts (Gemeinde) (behind or same - self-governing bodies of public law) 3-6. only the Austrian legal system 1. 2. 3. place - disputable, but this is the general hierarchy Law must comply with hierarchically higher law (ie higher up in the pyramid) -> otherwise, it’s invalid or inapplicable National law that is not in conformity with EU/international is not invalid, that would be too drastic, but is „ignored“ Determined by courts constitutional (supreme) court (Austria, Germany, France) by any court (US, UK) eventually settled by supreme courts - until then the lower courts may do what they think is or isn’t constitutional, but not applied in the whole state (US) DC (district court) -> appeal -> CA (court of appeals) -> writ of certiorari -> SC (supreme court) not every decision can be appealed a decision of SC is final, cannot be attacked anymore (even if the SC changes its mind afterwards) Courts could decide to not apply Austrian law if it’s not in conformity to EU law EU law and international law is based on constitutional laws of member states International Law x Supranational legal order consisting of principles and rules Regulates relations between subjects of international law (e.g. states) basic principle: parity of states (sovereign equality) Obliges states, but not individuals National Law Internal law of 1 state (also domestic law) Created by central legislative body Enforced uniformly by executive body Monitored by a hierarchically structured judiciary There are different views on relation between IL and NL Relation between international and national law practically relevant for questions such as 1. Does international law prime over national law, or vice versa? 2. Can national courts directly apply international law? 3. Can individuals rely on rights under international law? from international POV: Supremacy of international law over national law Art. 27 VCLT: „a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty“ In exceptional cases states may invoke (apply, sich berufen auf) its own law, e.g., if given consent was obviously unlawful (given by someone without authorization to) "A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance." From national POV: Monism Int. and nat. Law are one legal order Int. is directly applicable in nat. courts Inconsistent nat. law is void Dualism Int. and nat. law are two independent legal orders Int. law becomes applicable through implementation by nat. legislation Mitigation: interpreting nat. statutes in conformity with int. obligations here is ratification important National Positions Austria: dualism: nat. act violating int. law to be applied by state authorities (but it does not mean EU is going to leave it like this :D but there are not many sanctions) France: supremacy of int. law over any rule of nat. law (Art. 55 Constitution) Germany: supremacy of customary int. law (Art 25 Grundgesetz) Italy: supremacy of customary int. law (Art 10 Costituzione) UK: Interpretation in conformity with int. law unless conflict => nat. act prevails USA: Supremacy of int. law (Art VII(2)) only if treaty is self-executing but can be overwritten by act of Congress Nature of EU Law: EU Law = international law? binds sovereign states („Member States“) based on treaties (e.g. TEU) BUT binds also private individuals EU institutions are independent of MS unanimity not universally required to adopt law courts must interpret EU law autonomously => neither international nor national law but supranational seminal judgement of CJEU (Van Gend en Loos case) -> The EEC constitutes a new legal order (sui iuris) of international law for the benefit if which states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the Member States but also their nationals. emphasised in later judgements of CJEU (e.g. Costa/E.N.E.L.) "By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States." a legal order sui generis - new legal system (order probably mistranslated - „order juridique“) part of international legal order with distinct identity in case of conflict EU law prevails or when EU has exclusive competence, shared competence or where nat. law hinders EU’s function disapplies EU law when violation of fundamental rights or violations of the principle of conferral by EU (ultra vires act) Relation EU Law - national Law principle of supremacy in case of conflict, EU prevails national law law leads to disapplication not invalidation of national law from EU perspective absolute some countries (e.g., Germany, also Poland) think transfer of power to EU is limited and subject to their control we have transferred powers to the EU, but the German government is obliged to German constitution -> the powers EU exercises can or can be not in conformity with the constitution, that should the German Constitutional Court decide it arrogates itself power to „disapply“ EU law in case of violation of national fundamental rights specific and manifest violations of the principle of conferral by EU (ultra vires acts) interpretation of national law in line with the EU principle of pre-emption EU law excludes application of national law where the EU has exclusive competence has exhaustively used a share competence where nat. law hinders the EU’s functioning BUT scope and content of EU law is limited through principle of conferral - limited competences principle of proportionality (only acts as much as its necessary) principle of subsidiarity (if a competence can be exercised at a lower level, it should be so) Relation EU law - International Law EU is bound by international law (Art 3(5) TEU) "[The EU] shall contribute to [...] strict observance and the development of international law [...]” CJEU: International agreements are integral part of EU law but: individuals can invoke only “self-executing” provisions of international law compatibility of international agreements with EU primary law must be ensured (Art 218(11) TFEU) e.g. ECHR (Strasbourg) -> EU wanted to sign it, CJEU: (Luxembourg) said NO because there cannot be any Court above us (EU - ECtHR - Strasbourg would be above), has to make a new, their charter (although all EU Members already signed it) the EU version is more elaborate (step ahead of ECHR) EU cannot ignore other treaties that Member States signed with other entities in IL clause „if a MS is already bound by an international convention with a non-EU state, this convention does not lose its validity.“ After Brexit, the GB still applies EU acts (until told otherwise) The plurality of Law Legal Traditions of the World Comparative Law - Legal Traditions of the World Civil Law (mostly Europe, South America, Part of Asia) x Many codifications Precedent not legally binding Strong influence of scholars Based on acts of parliaments Franco-German tradition abstract-general terms of law Religious laws (islamic countries, Vatican) Law as will of God Inspires state law Role of clerics certain influence of religion even in countries without religious law Common law (mostly North America, Australia): Judge-made law mostly Binding precedent (applies for lower courts and also the court itself except the highest courts, higher courts don’t have to follow the decision of a lower court) Few codifications, e.g. no civil code, but there are a few exceptions Anglo-American tradition case law (stare decisis) but also statutory law Mixed systems Combines features of several traditions The Judge in Common Law Systems Applies constitution or statutes (common law of course has statutes, but not codes) needs to fill gaps must clear doubts/ambiguities in the law mitigate hardships and wrongs in the law Applies precedents in the absence of legislative text compares present with prior case (stare decisis) discovers law by way of induction (courts as „laboratories of the law“) establishes new law by creating legal principles (these principles are then called the „Common law“) B. Cardozo, The Nature of the Judicial Process (1921) ratio decidendi - "the point in a case that determines the judgement" or "the principle that the case establishes influenced by Anglo-Saxon philosophy (e.g. Francis Bacon) x German (does not need any statistics etc.) Philippines: mixed legal system (civil law + common law : historically - influence from Spain und the UK) Japan as China: mixed law (civil law + customary law - elements of confucianism; but basically civil law) types of law: Public and Private Law > Purpose of delimitation: facilitating legal education allocation of subject matters to respective code assignment of jurisdiction to competent court deciding immunity issues (was this exercise of sovereign rights/public interest or merely a private measure (also in UK even though they do not talk about it) standard of evidence; in dubio pro reo (=defendant may not be convicted by the court when doubts about their guilt remain) (balance of the evidence) Szladits: The Civil Law System (15-23) International encyclopedia of Comparative Law vol II ch. 2 +What is the role of the distinction in the Common law systems?+ Encyclopedia of comparative law - my notes: Public law is that body of law which governs the affairs of the communities (the states, municipalities, public corporations etc.) among themselves and the acts of the authorities to which the individual is subject. Private law regulates legal relations in which persons confront each other as individuals, theoretically, at least, on an equal footing. This division of law is based on the distinction drawn by Roman Law, a distinction which stands in the forefront of Justinian's Digest. (p. 32 Reader) What was said in the lecture: common law always writes in the historic view they did not have any breaks like we had (revolutions, change from a monarchy to a republic - they did not have that, they still have the old feudal system, they regularly use the case law going to 15/16th century) they have no breaks => they explain everything historically „this was illogical no doubt“ „but logic has never had a great practical effect in England“ he describes a legal system of England in contract to France (less influenced by logical principles, practice is more important) yes, ofc we have a distinction between the state and individuals but we do not really feel this distinction, there is no distinctive attitude of mind and also no special courts for this but ofc there are relationships between the state and the citizens and also between the citizens themselves, with a little effort they can understand what we are talking about when we say public law and private law Public law deals with relation between state and citizens principle of subordination rights and duties of the individuals (commutative justice) Constitutional law Administrative law Criminal law (French think its private law) Private law concerning relations between two individuals/private persons; principle of equality, rights and duties can be amended by agreement (distributive justice) General Civil Law Consumer Law Commercial Law Labour law (relation between employer and employee) Administrative law: Police Law, Municipal law, Construction & Planning, Industrial law (=Gewerberecht - in English they do not have that - they have free industry (freie Gewerbe) - no professional painting, plumbing etc.) this is NOT trade law, Environmental law, Migration & Asylum General Civil law: Contracts, Torts (=delict; non-contractual, suing person loss due to unlawful behaviour of sued person; when there is no contract but once I do sth, I owe you sth - rectificatory justice - you do sth and you get damages), Property, Family, Succession Determination by legal interest pursued (Interessenstheorie): does a legal norm serve public or individual interest? — employs material criteria, examining the content of the law. This approach goes back to the formulation of Ulpian and in its modern form states that where legal rules seek to further a collective interest, they constitute public law, whereas if the object in view is the furtherance of a private interest, they constitute private law. The interest theory thus bases the distinction on the purpose which can be discerned from the content of the law and characterizes as public-law legal relations those in which the public interest is dominant. The main objection to this theory is that private and public interests are frequently interwoven, and it is difficult to determine whether the intention of the legislation was to protect private or public interests; moreover, all legal rules can be said to serve simultaneously private and public interests. Public law deals with the conditions of the community, private law with the benefit of the individuals. (Ulpian, Digest) Theory of subordination (Subordinationstheorie; theory of legal-plus value): relation of subordination/superiority or equality — The distinction between public and private law is based on a difference between legal relations where both parties are equal and legal relations where one party is inferior to the other This distinction is unsatisfactory for several reasons: First, there are clearly relations of legal subordination in private law, for example, the relation between parent and child. Second, there are relations of coordination in public law, for example, that between two local authorities. Finally, the distinction really begs the question (petitio principii), because the relation of subordination - coordination is the result and not the cause of the public-law relation; in many cases, the issue is whether the state or a public authority has acted in its public or private capacity, and Determination by subject acting (modifizierte Subjektstheorie): does a legal norm entitle or oblige the sovereign as such; ie precisely in its capacity as sovereign? the public-law norm is a norm regulating relationships in which the state or another public authority (local authority or other public organization) participates, on at least one side. The obvious objection to this distinction is the fact that there are numerous private-law relations in which the state takes part. => should be used together Private International Law (called also Conflict of laws) Determines which law applies in cross-border situations Differs in various legal systems Closely connected to conflict of jurisdiction e.g. Bitkenstein x Spanish king Carlos - she claims that he harassed her (his guys harassed her), she sued him in the English court - Court had the question - do we have a jurisdiction? how much of the harassment have the UK? - the decided no, which ended the case (but if they had jurisdiction - and found out for example that most of the harassment took place in Spain, it would have to be governed by Spanish law) there is ofc a limit to using foreign law = public policy sets a limit to any application of a foreign law when a foreign legal rule is so repugnant, alien, strange, offensive for us that we cannot accept that our courts apply it (it is also illegal) it completely incompatible with the notions of what we think is law — then we do not apply it what happens then? there is vacuum — if we do not find any other means, we try to apply the contract, if still not, we apply Austrian law court can say: this is not our business, it does not have to be open for everybody, most courts in the world actually look for business (they would not do this) Hague Convention on Choice of Court Agreements - binds courts to accept jurisdiction if their courts are selected (UK, EU did sign and ratified this) Substantive law X Determines what legal subjects may/not do All legal norms concerning content/creation/alteration/transfer/expiry of rights or obligations how you create/transfer rights or obligations… Private or public law Mandatory law (obligatorisch – ius cogens) Rules which can’t be deviated from by contracts Reasons for binding effect: protection of public interests, weaker parties or third parties Sometimes only unilaterally mandatory (e.g., consumer law or employment law) - just one-party waiver Part of public law what is for protection of the legal party is usually mandatory; family law In PIL - different (through treaties you can deviate from some rules but not ius cogens) the privity of a contract (you cannot make a third person bind by a contract) Procedural law All legal provisions conc. decision-making also extremely important Rules for judicial + non-judicial proceedings judicial (in front of courts) + arbitration either an expert in the matter (e.g. industrial matters) or law professor (if it is a legal matter) Arbitration is per se neutral Deals with jurisdiction, manner in which decision is reached, form of decision (its notification & effectiveness) Part of public law (because it is how a judge who is a public officers has to act) you cannot choose the procedure law, the national law of the court is used (no English procedural law in Austrian court) - in arbitration it is possible X Supplementary law (ergänzend – ius dispositivum) Statutory (legal) rules that can be deviated from (e.g., through contracts) e.g. brand protection; vast majority of ABGB Differences in procedures between civil law and common law civil law: 1 expert, common law - each party appoint an expert „hot-tubbing“ - the 2 experts meet and decide on which point they agree on (in Common law procedural law) „cross-examination“ (also typical for common law) - the lawyer of the plaintiff examines the other lawyer - never happens in a civil law court Candy case: the court of Singapore would use the law of Singapore as procedural law and Austrian law as substantive law. Unfair terms are mandatory and cannot be deselected by the parties. However, the consumer can waive its right to unfair terms control in litigation. Unfair terms - control of contract clauses; public policy - control of using a foreign law; contracts don’t violate public policy Unfairness - if the contract creates a significant unbalance for one of the parties Legal Dogmatics (= legal doctrine) generally meant when talking about law how to correctly apply the existing legal rules (lex lata = law already made) to the facts of a case? follows a stringent methodology not the only legal discipline, but it is the most important in theory and practice Other legal disciplines legal history ◦ dealing with norms that are no longer in force and previous legal cultures ◦ overlap with historical sciences ◦ in German-speaking countries: Roman Law, Germanic Law, Canon Law political jurisprudence ◦ deals with law not yet in force (lex ferenda) (= law that is to make, that should be) ◦ critical assessment of existing rules ◦ asks how the law should be reformed or amended (“policy”) legal philosophy ◦ asks fundamental questions about the law e.g. What is the relation between law and justice? ◦ detached from particular legal system legal theory examines conditions of knowledge about the law how do we know what the law actually is, how do we arrive to a legal decision („more modern“) how do we know which from these texts on the internet which is binding on us, how to apply this law? closely related to legal philosophy sociology of law ◦ looking at law as a phenomenon in society How does the law affect people’s interaction? law and economics (= economic analysis of the law) analysing the interplay between the law and economic factors Which legal rules are economically efficient? very prominent in USA in the last decade comparative law ◦ looking for differences and commonalities between different legal orders (the rule of a singular country compared to another rule from another country), what are the differences and why can be done on macro level (legal families) or micro level (specific questions) further legal disciplines: legal informatics, legal linguistics, legal didactics, law and anthropology (how the law relates to the world view of mankind of certain people - anthropologist would normally go to exotic countries, they would examine rules of tribes, how did they arise and what meaning it has in that culture; we could do the same with Austria - what mindset do our laws have), law and literature (e.g. Prozess - Kafka), law and movies (it can tells us sth about the image legal systems and lawyers have and facts about the legal system) … (law and … really popular in the USA rn) Legal Source the twelve table law - adopted in the Roman Empire (400 BC) - kind of the first laws that systematically put down rules of law - revolutionize how to inform ourselves about the law, accessibility Sources of int. law international treaties statutes custom (particularly important in PIL) precedents (in Common law jurisdiction) Not sources of law Sources to inform about law: court decisions (in Civil law jurisdiction) doctrine (all the writings of law professors, academics, researches) private contracts - are not law, but a method to change a legal situation within the boundaries permitted by law (it is supplementary) - French said that contract = law of parties (but not seriously) Basis of the Legal System where does law come from? ok the law in the formal sense exist whenever a statute is adopted in the correct procedure, this is adopted in the constitution (gives us the standard to say whether it is a correct procedure and if it is the material meaning - fundamental values) Where does a constitution derive its normative power from? Previous constitution; but from where does a previous constitution get its power from? One (positivist) answer: from basic norm (Grundnorm) =“the norm authorising the historically first legislator”, establishes validity of all other norms of a legal system, determines competence (procedure/form of law creation, causes statutes to be recognised not as mere facts but as norm although we disagree on a lot of things in Austria, we need to have a common procedure on how the rules are made in this country, this is laid down in the correct constitution invented by Hans Kelsen (Uni Wien professor) - General Theory of Law and Statutes p.116 Reine Rechtslehre (pure theory of law) - most famous book; dogmatism (not historical approach or philosophy, but through a pure legal logic, legal theory) Art 38 Statute of the ICJ - (usually procedural law), goes a little bit also into substantive law - what are The Sources of International law international conventions International custom general principles of law (recognized by civilized nations - old-fashioned and colonial discriminatory) subsidiary: 4. judicial decisions and the teachings of the highly qualified publicists of the various nations Why do international conventions have binding force? (Reader) How to find international treaties: UN Treaty Collection A famous International Treaty - Vienna Convention on the law of treaties („the constitution of PIL“) Sources of EU law Primary law (treaties - TEU, TFEU) Secondary law (regulations and directives) Decisions by EU authorities (e.g. CJEU, Commission) Soft law by EU authorities (guidelines, recommendations) -> Find EU law: EUR-Lex website EU secondary legislation Regulations (Verordnungen; Art. 288(2) TFEU)): binding in their entirety (word by word) direct effect ie can be directly invoked by EU citizens require no implementation/transposition by MS famous EU Regulation: Cancellation of flights Directives (Richtlinien): binding with respect to the result to be achieved no direct effect (safe for late transposal) require transposition (implementation) by MS - (decided in the CJEU Case of Frankovich) principle of minimum harmonisation (EU sets a floor - low standard - you at least have to do this, but you can go further) famous EU Directive: on consumer rights clear tendency within the years that more regulations are adopted than directives why do use directives? every country has its culture, its way of doing things - it is better for the EU to say implement into your ABGB so it is not split up everywhere; also easier to agree on, sovereignty *going further - the consumer rights - Austria has gone much further (not just consumer contracts, but also B2B) Creation of Law Branches of the states Legislative branch (legislator, legislature) adopts laws deputies - typically democratically elected nowadays (was not like that always - Montesquieu) constitution and statutes Executive branch (administration, government in the wide sense) applies law, adopts decrees officials employed by state, subject to orders administrative acts Judicial branch (judiciary): applies and controls laws and its application by executive (originally just controlled the application; in U.S. would also create laws) judges employed by state but independent, usually appointed for life judgements why do this? fairness; to x the possibility of abuse of power Hayek: laws should always be abstract and general rules -> but somebody has to apply these rules -> that could give the possibility of abuse of power Checks and balances these 3 powers nicely balance each other legislator sets the rules, the executive implements the acts, legislator can ask executive to draw the law before setting the rules the executive acts are controlled by the judiciary, executive has to take into account what the judiciary says the judiciary has to comply with the legislation (with civil law) but at the same time can control the legislature -> noone has the absolute power Executive and judiciary make laws more realistic/concrete Administrative acts and judgements must comply with law (legislature) Courts can check validity of legislative & administrative acts Adoption of International Treaty Diplomatic conference (ambassadors and government officials of different states) => agreement by all participating states => adoption => signature => ratification Adoption of primary EU law (TEU, TFEU) is done like adoption of international treaties Same procedure for amendment All (27) members need to consent Similar: accession by new member states (Art 49 TEU) requires approval of majority of EP members and unanimous decision of Council conditions of admission decided by agreement between MS and applicant state candidate states: Moldova, Montenegro, North Macedonia, Turkey, Ukraine, Serbia, Bosnia&Hercegovina, North Macedonia; potential candidate states: Georgia, Kosovo if someone wants to join the EU they have to „take the whole package“ possible adjustments of TEU and TFEU if a new state would join (especially a huge country) Adoption of secondary EU law Legislative proposal (only by Commission) => readings (by EP and Council; up to two readings) => conciliation committee => third reading Constant trilogue in the meantime (Commission + EP + Council) - „behind closed curtains“ Commission also concerned with the application of EU law („the executive body“ of the EU) but here they also play a crucial role in the legislative process here (a bit of a contradiction) Adoption of statutes in Austria Popular initiative (Volksbegehren; 100.000 ppl or 1/6 of three states) Federal government Federal Council Members of National Council These 4 have the right of initiative (Gesetzentwurf - Art 41 B-VG) => proposal goes to national council (Gesetzbeschluss) => federal council => (referendum or federal states =>) federal president signature => chancellor proclamation (publication on the official journal) => entry into force Majority requirements Enactment of a statute requires majority of the competent legislative body Requirements of necessary majority may differ: Approval rate (percentage of votes in favor - e.g. 50% + 1,67%) Reference group from which percentage is calculated (total number of members, number of present members) Quorum (minimum number of members of a group or committee required to be in attendance in order for that group to be able to take official action) in decision process Simple majority - Nationalrat, European Parliament, UK House of Commons Constitutional majority - Nationalrat, European Parliament Qualified majority - EU Council (55 % + 15 MS/65% population of the EU) biggest safeguard: constitutional court Legislation by Executive Branch EU Delegated Act special provision in the TFEU non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act (still a legislation) Can be authorized by EP and Council, adoption by Commission, publication in Official Journal (there are called Commission regulation - Commission directive) Delegated Act by the Commission on how much money the Bank should have Decrees (Verordnungen) Adopted at national level by executive branch (governments or ministers) Functionally legislation ( =abstract and general rules) Apply to a number of situations that still needs to be specified Require specific authorization by parliament Mostly publication in official journal (Bundes- or Landesgesetzblatt) but also other forms - e.g. traffic signs) Effect similar to law Decrees (national level) must not be confused with EU Regulations! Administrative act (Bescheid) Act adopted by executive branch Requires specific competence, procedure and form Separation of powers - executive must be authorized by legislature (Art. 18 B-VG) Apply to specific individual cases Subject to control by administrative courts specificity of Austrian law (not e.g. in Germany) to be distinguished from direct command and coercion by administrative authority (AuvBZ - Akt unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt - don’t need any formal procedure, e.g. arrest, use of force, denial of entry) normally before you can adopt an administrative act you need to obey a certain procedure (you don’t interview the person before you hit them on the head - urgency - even possible without the interview) Administrative procedure at a Glance authorisation by law -> authority exercises power (adoption of act) -> finality of act (unless court challenge) -> even administrative act can become final and be challenged if somebody says I want to build the house next to yours (usually authorisation from the neighbors needed, because it can affect them) -> can be challenged in a court, if you do not do it and then after 1 year decide well the neighbor is not really nice and challenge first then, then you may have passed the delay also administrative acts (lower court judgements) - they can change the law, even if the building next to yours should have never been erected but you did not challenge it before, it'll become final and you cannot challenge it anymore -> law-making effect even of administrative acts if you have not been informed correctly, you may challenge it still even after the act has taken place (but usually does not happen) Court decisions Relevance of Court Decisions Common law Cases create law System of precedent (stare decisis) = old decisions are binding on lower courts but not higher courts possibility of over-ruling their own case only for higher courts Civil law Cases aren’t sources of law in themselves but means to ascertain the law Binding on other parties Become final once delay for appeal has lapsed (res judicata = the thing is decided) No binding effect on same/other court Yet in practice, lower courts follow higher courts Why do lower courts in civil law follow higher courts? Because they vacate (nullify) the judgement, more efficient to not reinvent for every case, wouldn’t look good on judges if they are vacated by higher courts, gives higher court a reason to rethink their judgements EU law Large part is case law MS bound by decisions of CJEU (decided by the CJEU itself — CJEU, C-62/14, Peter Gauweiler and Others v Deutscher Bundestag, para. 15-16; C-421/06, Fratelli Martini & C. SpA and Cargill Srl v Ministero delle Politiche agricole e forestali and Others, para. 52 ff. But CJEU not bound by its own decisions (but they don’t do it often - they don’t admit mistakes, they say that their decision was understood wrongly and then they change it) International law Court decisions are a source of law Adopted by international courts (like ICJ or ICC) Not only international but also national decisions can be sources (disputed) Binding effect of ICJ decisions on states as subjects of int. law (ICJ Statute, UN Charter) customary law (2 parts: practice - consuetudo and legal opinion - opinio iuris, not just a tradition but really the law) -e.g. principle of interference x general principals of law (in the legal systems of the MS, usually not found in the international law; e.g. one state promises another state to give them money and then they don’t deliver — what are the consequences? damages - but that is not written anywhere or custom for contracts between states — you fill the gap by looking into laws of different states that agree on the matter somehow and apply this as a general principle) general principals of law are not related to international law, they can fill „gaps“ in law binding effect of ICJ decisions on states as subjects of int‘l law (Art. 59, 60 ICJ Statute, Art. 94(1) UN Charter) Court procedure at a glance Action brought by one party -> Litigation in court (exchange arguments, hear witnesses) - > judgment rendered -> finality of judgment (unless appealed) Influences on the law Soft law can consist of: Guidelines Recommendations Model laws Principles Codes of conduct Best practices Not binding on courts, but influence (e.g. reduce emissions or carbon print) May create binding effect on administration through principle of equal treatment (once applied => always binding unless good reason not to) FMA - Circulas (Rundschreiben) well there is a certain provision in the Gesetz and then they start acting according to it, if they apply this continuously, they create practice — than it becomes practically binding (circula is not the law but it reflects how the administration usually proceeds and in my case they did not - argument of discrimination) Can be invalidated by courts Examples of soft law resolutions of the UN General Assembly standards by ILO ISO norms (e.g. size of sockets, standards of the internet… practically everything technical — not binding, but everybody on the market follows them; also can become binding —> USB-C cables -> EU adopted) regulatory standards by EBA UNIDROIT principles of international commercial contracts Custom in many legal systems recognised as a source of law Particular role in international law „exotic“ legal systems different; males have a special position in the family — inheritance rules not written UK constitution -> also customary law (also often transmitted orally - UK Parliament — „we did it like that 50 years ago that’s how we do it :D) some rules of customary international law may be changed by treaty law (in that case treaty>custom; cannot be done with ius cogens — cannot be changed even by treaty) Not in Austria because there is a central legislator Conditions: A certain legal practice is observed (consuetudo) eg., employer gives employee something every year Relevant actors (states) consider it to be law (opinion iuris sive necessitates) often in commercial law, also in public international law (ius cogens) - even a treaty could not deviate from that => no legal compliance unless it’s law or necessary Rank: Normally equal or below treaty or statute Exception: ius cogens in public international law Persistent objector will be ignored Custom tends to be uncertain, static and inefficient (H.L.A. Hart - Concept of Law) - describes a system of primary and secondary rules (does not add much to what Kelsen said), more elaborate distiction between primary rules (creating conditions how to make law), secondary rules (the content) Kelsen about the basic norm of public international law — (for constitutional law/national law - Grundnorm up) -> pacta sunt servanda (= there must be at least a common agreement of all states that when they enter into contract, those contracts are arising) he distinguishes the positive law (Gesetzterecht - existing law; legally binding law) from the rule of morality H.L.A. Hart is more elaborate on the procedure - how does the law come into force (more technical) general rule: „states are equal“ also important for this Rules and principles Rules: Precise can be directly applied Have conditions and effects (“if=>then” structure) E.g., speed limits Principles General usually only guidelines Have exceptions (e.g. pacta sunt servanda — contracts must be performed… but covid happens) Examples of principles Abstract principles Rule of law (Rechtsstaatsprinzip) (British invention) Non-discrimination - equality Legal certainty Proportional Subsidiarity (dealt with on lowest level to possibly deal with) Good faith - bona fide Specific principles Nemo dat quad non habet (No one can give what doesn’t belong to them/they don’t have) casum sentit dominus (owner bears the damage (e.g., damaging a computer after purchase isn’t responsibility of seller; there are exceptions ofc) clausula rebus sic stantibus: things thus standing (e.g., contracts are concluded under the condition that things stay as they are) - recognized in German, French law, to some extent Austrian law… not English law — extreme change of circumstanes The Role of legal doctrine Legal doctrine = writings of legal authors E.g., monographies, commentaries (explanation), journal articles Not a formal source of law, not authoritative Can be means to discover/interpret the law Sometimes cited by courts Used in legal briefs, academic research, seminar papers Higher relevance in Civil law than Common law Sometimes binding in religious systems (e.g. itjihad, ray and fatwa in Islamic countries; made by individual lawyers) Dealing with academic disputes Value of dominant opinion (herrschende Meinung) Possibility to follow a minority opinion (Mindermeinung) (it shouldn’t be disregarded in academic disputes) The role of authority (argumentum ad auctoritate) Rationality = requires giving arguments Persuasive authority (a great professor said not enough) Interpreting and Applying law Form the Law to the case legal provision (normative element) <—> facts of the actual case (factual element) facts of the case cannot be changed, we shouldn’t subsume sth, not add things generally formulated rule of law must be applied to the individual facts of the case legal consequence: interaction between legal norm and fact is the respective element of the facts covered by the corresponding terms of the provision? Subsumption (syllogism) - the method used to do this (very old method also known from philosophy) All human beings are mortal = major premise (in the law) sometimes the law is not clear -> you have to interpret the law (see down) Socrates is a human being = minor premise (in the text of the case) Socrates is mortal = Conclusion (Schlussfolgerung) Interpretation of lawyer’s toolbox intermediary step in the application of law „Reconstruction des dem Gesetze inwohnenden Gedanken“ (Savigny, System des heutigen römischen Rechts, Bd. 1, 1840, § 33) necessary in all practical cases What are the consequences of the provision for the respective situation? requires a firm methodical basis Goethe: “Im Auslegen seid frisch und munter! Legt ihr's nicht aus, so legt was unter.” (not a good approach!) +Candy case+ Subsumption of conditions: we need the contractual provision (we only deliver of we say we do) (+) alternative provision - general terms and conditions (general = pre-formulated) or contractual forms GTC - pre-formulated, the companies dictate it, we just have to agree, cannot influence Austrian legislator went beyond the EU’s Directive about unfair terms and conditions and extended it from just B2B to all transactions = „gold-plating“ contractual forms - you can influence it 3) negative condition - „which does not determine either of the mutual main obligations“ checking main obligations is our responsibility, they are not unfair No 9 determines when an order becomes binding on B — not „main obligation“ (also where SIM card works for what price) 4) „materially detrimental to one of the parties“ -> if fulfilled: conclusion = contractual provision is “void”, i.e. considered non-existent Purpose of interpretation - why do we interpret? determining the meaning of a provision fulfilling the legislative intention rendering verifiable decisions avoiding arbitrariness (arguments for what we think! could be otherwise unjust) Not one right answer Often more than a single possible interpretation Most convincing one is preferred Interpretation is subject to discourse hermeneutics = science of interpreting texts (also in literature, theology) differing rules for interpretation of public acts (e.g. laws) - you usually have materials; bound by the meaning of the word (even if it was meant differently - it binds more people than just 2 parties) private legal declarations (e.g. contracts) - primarily the rule is the will of the parties (e.g. if they wanted to sell a quote but they didn’t know what the quote is and sold it „as a bicycle“ - their will would apply, they both thought it’s a quad) Good thing when interpreting: do not think one-dimensional — dialectical method (Georg Wilhelm Friedrich Hegel) Thesis: status quo -> viewpoint that is currently acceptable and widely held Antithesis: problem with thesis (“the negative”) Synthesis: solution; new view point(“modified thesis”) that resolves the problems Methods of Interpretation First of all — certain statutory rules on how to interpret the law Legal Foundation § 6 ABGB: “Einem Gesetze darf in der Anwendung kein anderer Verstand beygelegt werden, als welcher aus der eigenthümlichen Bedeutung der Worte in ihrem Zusammenhange und aus der klaren Absicht des Gesetzgebers hervorleuchtet.” “No meaning my be inferred from a law other than the meaning which is evident from the genuine meaning of words in their context and in the clear intention of the legislator.” French law: Art. 4 Code Civil: “Le juge qui refusera de juger, sous prétexte du silence, de l'obscurité ou de l'insuffisance de la loi, pourra être poursuivi comme coupable de déni de justice.” “A judge who refuses to give judgment on the pretext of legislation being silent, obscure or insufficient, may be prosecuted for being guilty of a denial of justice.” Art. 5 Code Civil: “Il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises.” “Judges are forbidden to decide cases submitted to them by way of general and regulatory provisions.” Swiss civil code: „the law applies to all legal questions for which it contains a provision according to its wording or interpretation.” “The judge is only the mouth of the law” => very idealistic way of thinking by Napoleon Classic 4 Methods of Interpretation 1) Textual (grammatikalische): wording and grammar = starting point of interpretation "has as its object the word which mediates the transition from the mind of the legislator to our mind“ - Savigny) (could be said as originalism - historical + textual but he didn’t call it that) texts are equally authoritative in different languages How to determine meaning of the words? by definition by law common understanding - expert publications (commentaries; NOT legal dictionaries) difficult are general clauses and indeterminate legal terms (e.g., appropriate, reasonable, unfair terms) § 1319a ABGB: the owner of a path is liable if a person is injured due to the path’s defective condition (“mangelhaften Zustand eines Weges”). Is a slope to be considered as a “path” (Weg) in the sense of § 1319a? Austrian Supreme Court (OGH), 5 Ob 625/89: yes! (a slope is a path going down the mountain) (putting up a sign that it is a private path — could exclude liability); „entry on one’s own risk“ - considered as GTC!) 2) Systematic: Emphasizes contextual element „structure of the thought, [...] in which the individual parts of it stand in relation to each other“ (Savigny, System des heutigen römischen Rechts, vol. 1, 1840, § 33) a provision should not be considered on its own, but in the context in which the legislator has put it terms within a act or other acts should be interpreted coherently Goal: avoid contradictions in act or legal system and the legal system as a whole § 823(1) BGB: (A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage.) -> What is “another right” (ein sonstiges Recht) in the sense of this provision? principle of ejusdem generis Specific types: lex posterior = § 9 ABGB: Laws remain in force until they are amended or expressly repealed by the legislator. formal derogation (expressly amended or repealed) x substantive derogation (changed in substance w/o express amendment or repeal) substantive derogation: lex posterior derogat legi priori (a later law repeals an earlier law) premise: several provisions applicable to same case assumption: the legislator’s intent is more likely to be derived from the more recent provision e.g. § 943 S 2 ABGB (in force since 1812): a valid donation contract requires a “written document” - § 1 lit. d NotAktG (in force since 1871): a valid donation contract requires a notarial deed lex specialis: lex specialis derogat legi generali: special law prevails over more general rules e.g. § 185 StGB (Luftpiraterie) is lex specialis to § 105 StGB (Nötigung) Lex Posterior x Lex Specialis - which one prevails? Depends on individual cases Historical interpretation „a state of affairs, at the time of the given law, determined by legal rules for the legal relationship in question“ (Savigny, System des heu:gen römischen Rechts, Bd. 1, 1840, § 33) how law mas made, what were the reasons, etc. How has a norm been drafed – what is its history? legislative draft (“bill”); reasons, explanations and comments; reports of parliamentary committees; statements in the legislative process The intention of the legislator? objective vs subjective “intention” Which velocity is referred to when the Austrian Road Traffic Code refers to “walking pace” (e.g. in residential streets § 76b(3) StVO)? Teleological interpretation: „inner connection, which links all legal institutions and rules of law into a large unit“ (Savigny, System des heu:gen römischen Rechts, Bd. 1, 1840, § 33) also: ’purposive interpretation’ (Interpretation nach dem Zweck) seeks the presumed rather than the actual intent of the legislator based on purpose, objectives and underlying idea of the norm the universal tool of the lawyer must still be within the “meaning of the words” Art. 260(2) 2 TFEU: “If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.”Can the CJEU impose a lump sum and a penalty? “Aga omnes”: against all/any => absolute rights “Another right”: similar rights under this constitution, fulfilling the purpose of the legislator “inclusive “or”: can mean both e.g., milk or sugar in coffee? => both possible Practical order of the methods Textual interpretation Historical Interpretation and Systematic Interpretation Teleological Interpretation Additional methods Constitutional • a formally subordinate norm is interpreted in conformity to the hierarchically superior norm • but mind the textual limit • especially relevant: principle of equality same facts must be treated the same different facts must be treated differently differential treatment needs rational reason ABGB: Ehevertrag: …inseparable (divorce…) to procreate (? controversial — childbearing can be no longer understood as the essential purpose of marriage) -> need to be interpreted in conformity with the principle of equality (now equal rights for homosexual couples) Autonomous for terms of international law to have the same meaning, they must be understood independently of national law contract - a different thing in Austrian law, Common law etc. - how should we interpret it then (CISG)? we should understand it in an autonomous international way -> aim at international harmonisation assumption: hierarchically inferior legislation must have no bearing on superior one (Austrian law < EU law) - the lower level cannot influence the higher level also relevant for EU law, where CJEU has monopoly on authoritative interpretation of EU law „this have to be interpreted autonomously“ +Candy case+ term „unfair“ - must be interpreted from an autonomous European viewpoint (not Austrian or any other MS's -> „if it causes a significant imbalance…“ EEC Directive (gröblich benachteiligt - materially detrimental in ABGB) we have to interpret the ABGB text with the requirement of unfair under the Directive Directive-compliant Interpretation transpositions can only be applied to Directives supremacy of EU law distinguish between regulations (directly applicable) and directives directives must be transported into national law by the MS national court should never forget that the background is a directive, when doubt -> go back to the directive to avoid a conflict between EU and national law as far as possible -> if not clear: CJEU (Austria cooperates with CJEU a lot - many and good questions -> preliminary ruling) — e.g. Austria has to interpret gröblich benachteiligt exactly like CJEU says it is not the good idea to use the UN Charter or other PIL as the law under a contract :D Comparative approach a look across the border is often beneficial; states implement/copy foreign regulations (inspired by other states especially for new phenomena) indispensable for conflict-of-laws rules (applies to conflicts between different legal systems) provisions of private international law must not be solely based on domestic legal terminology link with historical and systematic interpretation foreign regulation which were considered in legislative process can be of help e.g., regulations between wrongful births (can doctors be held liable) — Wrongful birth: For the question of whether an unwanted child constitutes “damage” (§ 1293 ABGB) the OGH took into account the legal situation in several foreign countries. Relationship between the Methods No hierarchy of the methods (mere „topoi“ - an argument, sth that comes up) But : in the end, interpretation must be covered by furthest possible meaning of wording text is basis however e.g. with general clauses textual interpretations is not very fruitful need for other methods (historic + systematic the same value, teleological (last resort but often a determinative one) interpretation tools work together (like pieces of a puzzle) CJEU Judgement: reader 9 - preliminary rulings just clear up questions about EU law — interpretation, does not decide individual cases (CJEU, C-306/16 – da Rosa) anonymous, but gives name of the Advocate General skip the beginning and the list of provisions, start reading the dispute in the main proceedings, first later read the provisions Example of Interpreting Laws (what are the facts - legal issue - holding - rationale) Facts: What were the facts of this case? Legal Issue: What was the issue in the CJEU‘s ruling? The wording of this directive - do you have to give the rest always after 6 days or do I also get to work 12 days and then 2 days off - would that be complying with the Directive?) Holding: “Article 5 of Directive 93/104 and the first paragraph of Article 5 of Directive 2003/88 must be interpreted as not requiring the minimum uninterrupted weekly rest period of 24 hours to which a worker is entitled to be provided no later than the day following a period of six consecutive working days, but requires that rest period to be provided within each seven-day period.” Rationale: • “per each seven-day period" no reference to national law autonomous concept of EU law, we need uniformity • wording: no specification when minimum rest period must take place various language versions: “per” (EN), “por” (PT), “pro” (DE), “au cours de” (FR) - more as a calculation (during would be maybe more precise) context: “reference period” used in various provisions of same directive to specify period within which minimum rest period must be granted • purpose: effective protection of workers‘ health and safety each employee must enjoy adequate rest periods at the same time grants flexibility in implementation of directive may also benefit worker by enabling several consecutive rest days at the end and start of following rest period and by granting those days at weekends mutatis mutandis - changing what needs to be changed recitals (preamble) - reasons for the directive (here says health and safety) CJEU uses the Hegelian dialetic method (you should use counter-arguments) so flexibility - after 6 days one day free, it does not have to be the same day but has to be within 7 days CJEU likes to refuse to answer because of „formal reasons“ - you did not ask the right question, you did not ask properly, they do not questions that are hypothetical Law beyond the code § 7 ABGB - (If a matter can neither be determined by the wording nor by the natural meaning of a law, similar matters which have been regulated by law and the purpose of other related laws must be considered. If the matter still remains ambiguous, it must be decided based on the diligently gathered and thoroughly considered facts in line with the natural legal principles.) res extra commercium - dead body - still use natural legal principles (otherwise not many cases uses it) = “Rechtsfortbildung”(judicial development of the law) : Art 1 — ZGB: In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator. have to go back to older views Analogy: unintended gap in the law (loophole) similar situation is regulated elsewhere, but provision is not directly applicable —>analogous application prohibited in case of disadvantage of accused in criminal law (nullum crimen, nulla poena sine lege: no crime and no penalty without law) § 1319 ABGB… “If someone is damaged [...] due to the collapse or removal of parts of a building or another structure erected on a piece of land, the possessor of the building or structure is obliged to compensate [...].” What about a tree?: Yes (according to the Supreme court) Special methods Argumentum a maiore ad minus - “Größenschluss” what is true for all is true for one § 721 ABGB: If even the entire will can be revoked by destruction, this is even more possible for parts of it a narrower rule includes a broader rule (e.g., if it is forbidden to take one more adult on a bike it is also forbidden to take two) Argumentum a minori ad maius - a narrower rule includes the broader rule § 65 StVO: If it is forbidden to take one adult person on a normal bike, it is also forbidden to take two adults. Limitation of the scope (teleologische Reduktion): the norm text covers more than originally intended by legislators -> „overshooting wording“ teleological reasons for limitation e.g., because a necessary exception is not made “teleologische Reduktion” § 1295(1) ABGB: “Jedermann ist berechtigt, von dem Beschädiger den Ersatz des Schadens, welchen dieser ihm aus Verschulden zugefügt hat, zu fordern [...].” needs to be reduced: only directly affected person (a person in a traffic jam has no idea about people who have an important business meeting, and that such delay causes inconvenient consequences) they added a criterion to the text, otherwise is would be too broad -> this was written down in decisions the intent of the legislator: giving claims only for direct damages; not liable for indirect damages analogy is an extension of the law that is not covered by the text; here the text covers it, but we reduce it („opposite operation“) Interpretation of contracts Legal Foundation § 914 ABGB: „when interpreting contracts, one shall not adhere to the literal meaning of an expression but must determine the intention of the parties and the contract must be understood in line with honest commercial practice“ - we need to know the general understanding § 915 ABGB: „In the case of contracts which only oblige one party, it is assumed in case of doubt that the obliged party intended to assume the less rather than the more cumbersome burden; in the case of contracts which oblige both parties, an unclear expression is interpreted to the detriment of the party who used such expression (section 869).“ oblige only one party - e.g. donation (obliges only 1 party — the donor), pledge oblige both parties: the detriment interprets unclear expression the party who provides the term has the space to clearly express itself, if they do not do so, the contract is interpreted in the favor of the other party “Absicht der Parteien” = actual will of the parties actual intention is decisive, paramount (supreme) not what would be objectively reasonable Wording only indicative (falsa demonstratio non nocet - e.g. airpods-earpods)- unilateral too does not apply to articles of association and by-laws of a company (protection of the public) Objectified will of each party How would a reasonable recipient understand the declaration under the given circumstances? Any particular knowledge of recipient must be considered not merely internal („physic“) processes having not manifested themselves externally in any way declarant bound in this sense, even if he intended something different any negligence in declaration is at his expense Interpretation of laws vs. contracts Commonalities: Guiding principle of interpretation of all legal documents: Establishing (objective) intention of documents’ author Natural and ordinary meaning of words in relevant context, purpose taken into account Objective intention established from wording (external matters can only influence interpretation) Only text of document as a whole provides intention of author Differences: Wording: terms of statute result only from wording, no implied (contracts: parties didn’t say but it’s clear that’s what they wanted or additional provisions outside written form Context: only closed amount of material can be used (legislative history and documents), for the interpretation of will practically any doc Point in time: relevant point in time for interpretation of contracts is time of conclusion (for statutes time is disputed) Relevance of the wording: interpretation can be beyond the wording; for statutes, hurdle of an interpretation against wording is higher

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