IREWI Skript 2024 Final PDF

2 1. Where could legal requirements originate from?  Where could legal requirements originate from? 3 Such requirements or restrictions might arise from a variety of sources, including domestic law, EU law, and internatio...

2 1. Where could legal requirements originate from?  Where could legal requirements originate from? 3 Such requirements or restrictions might arise from a variety of sources, including domestic law, EU law, and international law. 1.1. Sources of the law in Austria 1.1.1. Austrian domestic law Domestic law is law enacted by the Austrian national legislator. Austria being a federal legal system, there is law both at federal and at state level, but the law relevant for doing business in Austria and cross-border is almost exclusively federal law. The important policy decisions are taken by democratically elected legislative bodies. For federal law, this is the National Council (Nationalrat), in cooperation with the Federal Council (Bundesrat), a second Chamber consisting of state parliament representatives. Given that the Federal Government can usually count on a majority in the National Council and that the preparation of draft bills is often in the hands of Federal Ministries, it has considerable influence on law-making. Constitutional law is law of a very special nature, as it is higher in rank than all other law and lays down the very foundations on which the whole State and its legal system are built. Federal constitutional law (Bundesverfassungsrecht), also referred to as ‘the Constitution’, is not one comprehensive document like in many other countries, but rather contained in a broad range of different legal instruments. These include, above all, the 1920 Federal Constitutional Law as revised in 1929 (Bundes- Verfassungsgesetz, B-VG), and inter alia the 1867 Basic You will study constitutional law Law on the General Rights of Nationals and the role of state institutions (Staatsgrundgesetz), the 1947 National Socialism in BA CM 12 (Constitutional Law). Prohibition Act (Verbotsgesetz 1947), the 1955 State Treaty for the Re-establishment of an Independent The history of constitutions and and Democratic Austria (Staatsvertrag von Wien) and legal systems in general will be the European Convention on Human Rights. For law discussed in BA CM 3 (European to be enacted as constitutional law, special and Global Legal History). procedures and majorities are required. The whole legal order must comply with the Constitution. The Constitutional Court (Verfassungsgerichtshof) is in charge of deciding whether or not a law is in conformity with the Constitution. While only law enacted by the legislative bodies counts as law in a formal sense (Gesetz im formellen Sinn) it would be much too cumbersome if all law had to go through parliamentary procedures. This is why law passed by parliament often authorises the administration (at federal, state or lower levels) to determine the details by way of administrative regulations (Verordnungen). Such regulations also count as law in a broader sense. The legislator may also declare that instruments issued by other bodies have legislative effect, such as collective bargaining agreements. In addition to law in the sense of general standards of conduct directed at any person fulfilling the requirements there are also legal sources that apply exclusively to the parties in an individual case, such as court judgments (Gerichtsurteile), administrative decisions (Verwaltungsbescheide), and contracts (Verträge). It is to be noted that ‘case law’ generated by Austrian courts is not a recognised source of the law with effect beyond the individual case, e.g. a lower court is not strictly under an obligation to follow the rulings even by the Supreme Court if the lower court is convinced these rulings are incorrect (but in practice the lower court will normally follow the higher courts). 4 Starting an E-Commerce Business in Austria Austrian legal sources, including preparatory materials, can best be searched in the Legal Information System of the Republic of Austria (Rechtsinformationssystem, RIS). For some sources there is an English translation, but this is normally not kept up to date and therefore not reliable. 1.1.2. European Union law Sources and scope of EU law The European Union (EU) is a political and economic union of currently 27 Member States. Since the 2009 Lisbon Treaty, the most important sources of primary EU law (also referred to as ‘the Treaties’), i.e. the instruments setting out the distribution of powers and responsibilities between the EU and its Member States and between the EU institutions, are the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), accompanied by the Charter of Fundamental Rights of the European Union (CFREU). You will study EU law in BA CM 2 The Charter applies to activities by the European (Introduction to International institutions and by national institutions when they Law) and CM 5 (European Law). implement EU law. Law enacted by the competent EU institutions is referred to as secondary EU law. The most important types of such secondary law are EU Regulations, which take direct effect in the Member States, i.e. are directly binding on natural and legal persons and are directly applied by courts and authorities; and EU Directives, which are only addressed to the Member States and do not normally take direct effect, i.e. need to be implemented by national legislators, and courts and authorities will only apply the national implementing law. Secondary law is made jointly by the three most central EU institutions, the European Commission, the European Parliament and the Council of the EU (not to be confused with either the European Council, which is the assembly of heads of government of the EU, or with the Council of Europe, which is a separate international organisation). All three institutions together are often simply referred to as ‘the European legislator’. Their exact roles are complex and not identical with the roles of institutions at national level. Very roughly speaking, the Commission is the executive power and ‘guardian of the treaties’. It takes the initiative by proposing draft new legislation (note that since recently also the Parliament has the right of initiative), but the legislative process itself is predominantly in the hands of the Parliament and of the Council. EU legal sources (including preparatory materials) can easily be searched via the Eurlex portal, which is available in all official languages of the EU. A large part of EU secondary law applies also in the non-EU Member States of the European Economic Area (EEA), which includes the EU Member States as well as Iceland, Liechtenstein and Norway. Whether or not an EU legal instrument is relevant also for the EEA (and thus references to ‘Member State’ or ‘Union’ must be read as including EEA countries) is indicated in the heading. Switzerland is not part of the EEA, but only of the European Free Trade Agreement (EFTA). However, there is a series of bilateral treaties through which Switzerland is associated with the EU and on the basis of which Switzerland has adopted various provisions of EU law in order to participate in the Single Market without joining either the EU or the EEA. Since the United Kingdom left the EU it has a special relationship with the EU, in particular as laid down in the Trade and Cooperation Agreement (TCA). This relationship is much looser than that with Switzerland, and it is not based on EU law, but on international treaties.  Where could legal requirements originate from? 5 The primacy of EU law Although an EU Directive is not directly applicable and national institutions will only apply the national implementing law, the fact that national law is based on a Directive has a huge impact on the way this national law is interpreted and applied. In particular, national law must always be applied in a manner that is in conformity with EU law. Where the Court of Justice of the European Union (CJEU) has issued an authoritative interpretation of EU law (Regulation, Directive, or other) this interpretation is binding also on Member States’ institutions. Where a national court of last instance is confronted with a case whose decision depends on the correct interpretation of EU law, and where that correct interpretation is not clear (i.e. is not a so-called acte claire), that court must (and lower courts may) submit the issue for a preliminary ruling, i.e. refer the matter to the CJEU to give binding guidance on the correct interpretation. Also, under certain circumstances, failure by a Member State to implement a Directive may lead to that Directive taking (limited) direct effect. The case law of the CJEU can best be searched on the Curia portal, which is available in all official languages of the EU. Where there is a conflict between a national legal provision and EU law, it is EU law that prevails according to the principle of primacy or supremacy of EU law. The national provision is not annulled, but set aside and must be disapplied by Member State institutions (Anwendungsvorrang). According to the CJEU, European law even takes precedence over national constitutional law, which is, however, a view not generally shared by the constitutional courts in the Member States. So far, open clashes between national constitutional courts and the CJEU have largely been avoided. 1.1.3. International law The term ‘(public) international law’ is usually reserved to legal relations with, in particular, other states and entities that have historically retained or acquired a similar status (such as the Holy See, the International Committee of the Red Cross, or the Sovereign Military Order of Malta). Apart from sources such as customary international law and universally recognised general principles of law, the main sources of international law are treaties (international agreements, conventions). Treaties can be bilateral or multilateral, depending on the number of parties to a treaty. After the text of a treaty You will study international law has been finalised by the states participating in in BA CM 2 (Introduction to negotiations, it is usually signed by these states. However, International Law) and CM 6 a state is not bound before ratification, i.e. the formal act (International Law). in which a state indicates its consent to be bound by a treaty, and its entry-into-force. In the case of multilateral treaties, the usual procedure is for a designated depositary (e.g. an international organisation) to collect ratification documents, and there is often an agreement that the treaty will enter into force only after a specified minimum number of ratification documents have been received. For states that are not among the initial signatory states, the formal act indicating that a state will be bound by a treaty is called ‘accession’. The Vienna Convention on the Law of Treaties (VCLT) comprises comprehensive provisions on the procedure for the conclusion of treaties, their entry-into-force and how treaties are defined, amended, terminated and interpreted. Some treaties contain provisions that are self-executing, i.e. that become directly applicable and judicially enforceable in the national legal system. Often treaties are non-self-executing, and they can be relied upon (by e.g. private parties) only after the relevant contracting state has implemented them in its national law. This is similar to the difference between Regulations and Directives in EU law (see p. 4). 6 Starting an E-Commerce Business in Austria Through treaties between states and similar entities, international organisations and other ‘derivative’ new legal entities have been created, many of which have been granted the power to enact and/or enforce international law. The European Union is, strictly speaking, such a derivative legal entity, and EU law is in this sense just a subset of international law, but it has developed into a body of law very much of its own and is also characterised as ‘supranational law’. The Council of Europe (CoE) is an international organisation founded in 1949 with the aim to uphold human rights, democracy and the rule of law in Europe. It has currently 46 member states. Its headquarters are in Strasbourg (France). The CoE cannot make binding law, but has been afforded the power to enforce select international agreements made by its member states. Most notably, the European Convention on Human Rights (ECHR), which enjoys the status of constitutional law in Austria (see p. 3), is interpreted and enforced by the European Court of Human Rights (ECtHR). The World Trade Organization (WTO) is an international organisation focussed on the regulation of cross-border trade by way of international trade agreements and has currently 164 members (mostly states but also the EU). The WTO's dispute-settlement system aims at assisting members to settle their trade disputes preferably through a mutually agreed solution. However, it also offers quasi-judicial dispute settlement in the form of case-specific panels. WTO member nations have accepted the WTO dispute settlement procedure as exclusive and compulsory, but it cannot be used to resolve trade disputes that arise from political disagreements. The United Nations (UN) is an international organisation that aims to maintain international peace and security, develop friendly relations among nations and achieve international cooperation. Founded in 1945, it currently boasts 193 member states. Its headquarters are in New York and it has offices in other cities, notably in Vienna. Its organs include the International Court of Justice (ICJ) located in The Hague (Netherlands). The UN has established a number of specialised agencies, such as the World Health Organization (WHO) or the World Intellectual Property Organization (WIPO). Other sub-units include the United Nations Commission on International Trade Law (UNCITRAL) whose Secretariat is located in Vienna. In the State Treaty, Austria declared that it will maintain full neutrality, i.e. will not join any military alliances and not permit the establishment of any foreign military bases on its territory. This is why Austria has not joined NATO, but it is part of, e.g., UN-led peacekeeping and humanitarian missions.  Where could legal requirements originate from? 7 1.2. How national is ‘national law’? Meanwhile, a large part of Austrian national law has You will study these interrelationships in BA CM 1 (Introduction to Law and its International Aspects). either been derogated by EU Regulations, or relies on EU Directives, or is indirectly affected by EU or international law. This means that even in purely domestic cases (e.g. where all elements of the case are located in Austria) other than domestic legal sources must be taken into account. More or less all issues addressed by these preparatory materials are either fully harmonised or at least heavily influenced by EU law and/or international law, even where this has not been specifically mentioned. 1.3. Cross-border situations The international dimension of law in Austria is even more apparent in cases with an international element, e.g. where a party to a legal relationship has a foreign nationality or is located in a foreign state. Generally speaking, laws (in the sense of specific sets of legislation, or whole areas of the law) deal with such cross-border situations in one or more of the following four ways: 1. A law may directly and specifically regulate cross-border situations (e.g. free trade agreements p. 11, asylum law p. 13, UN Cross-border aspects will normally Convention on the International Sale of Goods p. be taught as part of the course 54); dealing with the relevant subject matter itself. In private law, where 2. Elements of a law may address the international foreign domestic law may become dimension indirectly, such as by requiring a applicable, there is a separate particular nationality, law of incorporation etc. course which is an integral part of or, conversely, by recognising as equivalent BA CM 10 (Civil Law and Private foreign nationalities, laws of incorporation etc. International Law). (e.g. trade regulation law p. 10, social security law p. 26); Differences and similarities between legal systems worldwide 3. A law may set out rules for dealing with particular will be discussed in MA CM1 situations in a general manner and clarify in (Comparative Law). separate sections the territorial reach of these rules and under which conditions they apply to cross- border situations (e.g. Austrian Criminal Code p. 15, General Data Protection Regulation p. 41); 4. A law may stay silent on cross-border situations in the first place, but have to be read together with a separate body of law called ‘conflict-of-laws’ that tells a court or authority which out of 8 Starting an E-Commerce Business in Austria several different national laws governs the issue at hand (e.g. the law of contractual and extra- contractual obligations, property law, family law, and the law of succession, see e.g. p. 53). So while Austrian courts and other authorities generally only apply Austrian law (which includes Austrian domestic law, directly applicable EU law, and self-executing international law applicable in Austria) when they have international jurisdiction, the fourth of the four scenarios means that an Austrian court or other authority may also have to apply foreign domestic law.