Introduction to Law and its International Aspects.pdf

Course: Introduction to Law and Its International Aspects Ius a - Lady Jus ce allegorical personi ca on of the moral force in judicial systems a ributes: scales: weigh the arguments, sword: enforced with the necessary severity , (blindfold): equality baili - Exekutor (Gerichtsvollzieher) Introducto...

Course: Introduction to Law and Its International Aspects Ius a - Lady Jus ce allegorical personi ca on of the moral force in judicial systems a ributes: scales: weigh the arguments, sword: enforced with the necessary severity , (blindfold): equality baili - Exekutor (Gerichtsvollzieher) Introductory case: BonBon (B) is an Austrian manufacturer of sweets. For the distribu on of its products in Asia, it uses the agent Animus (A), who is based in South Korea. They have entered into a distribu on agreement, which they have expressly submi ed to Austrian law and to the jurisdic on of the High Court in Singapore (=choice-of-law clause). A er some years, B and A start to quarrel. B stops delivering the orders made by A. A therefore brings a suit in the High Court of Singapore, seeking damages for breach of contract from B (contract not ful lled). In the proceedings, B points to its General Terms and Condi ons (GTC). According to No. 9 GTC, any obliga on of B to deliver its products on orders by the agent is subject to a wri en con rma on by B. No such wri en con rma on had been issued for the orders by A. A is of the view that this contract term is unfair because it makes the obliga ons of B subject to the la er's own voli on. It would create legal uncertainty if the agent could not know in advance whether the product ordered will be delivered. B thinks the term (=clause) is valid. The test of "fairness" would only apply in contracts with consumers and not in dealings between businesses. Moreover, the term would re ect its limited produc on capacity, which would inhibit serving all orders. Ques ons for the judge to think about: 1) Which law should you apply? 2) Applying this law, is the clause valid? 3) Who will win the case in the end? law • a system of rules in its en rety • das Recht act • a piece of legisla on • Gesetz code • a systema c and comprehensive collec on of statutory rules • Gesetzbuch right • a power given to individuals by the legal order to pursue one’s interests • ein Recht ac on • =lawsuit • proceeding brought by one party against another in court • Klage/Antrag DEFINITION OF LAW • law is regula on of human behaviour • permeates all aspects of life • how things should be (norma ve order), not necessarily how they are (factual reality) norma ve order: ought (sollen) - law is NOT descrip ve (as e.g. natural sciences); requires respect AIMS OF THE LAW Necessary aims of law: ◦ maintain peace ◦ order social rela ons ◦ allow economic exchange ◦ enforce obliga ons ◦ protect rights Possible aims of law: ◦ execute will of majority ◦ execute will of ruling class ◦ promote social equality ◦ protect rights of minori es tt ti fi ti tt ti ti ti ti fl ti ti ti ti ti fi ti ti ti tt ti ti fi ti ti ti ti ti ti ti ff ti tt ti fi ti ti tt ft Seite 1 von 37 MEANS OF THE LAW law requires enforceability (=hard law) • but not every law provides for a sanc on 1. example: lex imperfecta - legal norms without a consequence - e.g. German decree on advisory speed limit - may nevertheless have legal relevance (e.g. in case of accident -> indirect enforcement) 2. example: so law - guidelines, codes of conduct, recommenda ons - e.g. Resolu ons by United Na ons General Assembly - lacks binding force, but o en obeyed - e.g. UNIDROIT Ronald Dworkin („The judge should follow his own convic on“) but it does not mean judicial discre on LEGAL RULES: prohibi ons (e.g. to smoke), obliga ons (e.g. to pay), permissions (e.g. to drive) - apply to individuals (+ organiza onal rules - government etc.) Relation between law and justice FUNCTION OF THE LAW law has more func on than just ensure fairness/jus ce: - foreseeability - nality - certainty - e ciency - order note: sources of law: common law, case law law (nomos) <—> right thinking (logos) - jus ce (jus a) - morality (mores, gute Si en) - equity (aequitas, Billigkeit) - fairness law is not necessarily just -> many legal rules are somewhat arbitrary, e.g. legal age of 18 years law should aspire to be just -> otherwise no respect of law by popula on +Candy Case+ The "fairness" of B’s General Terms and Condi ons cannot be discussed in the abstract. A court would always search for a source of law – such as a speci c statute or a case – allowing it to control and possibly correct the GTC. This background is indispensable for any legal discussion. Even morally reprehensible terms may be „legal". ti ft ti ft ti ti tt ti ti ti ti ti ti ti ti fi ti ti ti ti ti ti ft ti ti ti ti Seite 2 von 37 ffi fi fi TOOLS OF THE LAW law typically operates through coercion • the consequence for viola ons of law are sanc ons examples of sanc ons - damages - nes - criminal punishment (e.g. prison) - embargos, freezing of assets resolu on by UN with no sanc ons? - s ll law => so law - tried to ra onalize jus ce, nd a logical way to deal with jus ce in contractual exchanges: look only at bargain that was struck, redistribu on no dis nc on between nature and culture natural law: inherent reasonableness, pervasive throughout en rety of nature and culture Human being outside of policy = hand detached from the body - Teleology = soul of his thinking - access to something we all agree upon: judge = living jus ce, not command but convince (not about enforcement) - jus ce is the highest virtue BOOK V - JUSTICE Jus ce: Its sphere and outer nature: in what sense it is a mean 1) General basis (what all men mean by jus ce): jus ce = state of character which makes people disposed to do what is just and makes them act justly and wish for what is just -> Injus ce = makes one act unjustly and wish for what is unjust. - faculty/science (is the same when held to contrary objects) x states of character (not) 2) one contrary state is recognised from its contrary and that is recognised from the subjects that exhibit them state of health: rmness of esh -> x abbiness of esh (state of unhealthiness) -> wholesome is what causes the rmness of esh -> whenever one contrary is ambiguous the other also will be ambiguous; e.g. that if ‘just’ is so, ‘unjust’ will be 3) „jus ce“ and „injus ce“ seem to be ambiguous but because their di erent meanings approach near to one another the ambiguity escapes no ce - various meanings of an „unjust man“: lawless man, grasping man, unfair man => law-abiding and fair man = just • grasping -> concerned with goods, those that have to do with prosperity and adversity, when taken absolutely are good, but not always for a par cular person • men pray for and pursue these things; but they should not, but should pray that the things that are good absolutely may also be good for them, and should choose the things that are good for them • the unjust man does not always choose the greater, but also the less—in the case of things bad absolutely; but because the lesser evil is itself thought to be in a sense good, and graspingness is directed at the good, therefore he is thought to be grasping -> unfair Since the lawless man was seen to be unjust and the law-abiding man just -> all lawful acts are in a sense just acts; for the acts laid down by the legisla ve art are lawful, and each of these, we say, is just. the laws aim at the common advantage either of all or of the best or of those who hold power -> produce and preserve happiness and its components for the poli cal society. And the law bids us do both the acts of a brave man (e.g. not to desert our post nor take to ight nor throw away our arms), and those of a temperate man (e.g. not to commit adultery nor to gra fy one’s lust), and those of a good-tempered man (e.g. not to strike another nor to speak evil), and similarly with regard to the other virtues and forms of wickedness, commanding some acts and forbidding others; and the rightly-framed law does this rightly, and the has ly conceived one less well. -> this form of jus ce = complete virtue (not without quali ca on, but in rela on to another) - jus ce o en thought to be the greatest of virtues - „In jus ce is every virtue comprehended.“ - it is complete virtue in its fullest sense cause it is the actual exercise of a complete virtue - that is because the person ho possesses it can exercise his virtue not only to himself but towards another also - Bias: „Rule will show the man.“ - jus ce = another’s good - worst men: exercises wickedness both towards himself and his friends - best man = exercises his virtue towards others (not himself) - the di erence between virtue and jus ce is their essence, jus ce is (as a certain kind of state) virtue Division of jus ce there is a jus ce that is a part of virtue ti ti ff ti ti ti ti ti fi ti ti ti fl ti ti fl fl ti ti ti ti fl ti fi ti ti ti fi ti ti ti fl ti ti ft ti ti ff ti ti ti Seite 3 von 37 ti fi 1. Aristotle - The Nicomachean Ethics a man who acts graspingly o en exhibits none of these vices (cowardice, bad temper, meanness) but certainly shows wickedness of some kind -> another kind of injus ce which is a part of injus ce in the wider sense (and we can refer to it as unjust) 2 people who commit adultery: make money x appe te -> pleasure from gain - no form of wickedness but injus ce: injus ce concerning honour, money, safety -> appe te: self-indulgence - wickedness: all object with which a good man is concerned Jus ce: lawful, fair Injus ce: unlawful, unfair lawful and fair -> not synonyms (for all that is unfair is unlawful, but not all that is unlawful is unfair) -> par cular jus ce and par cular injus ce, similarly par cular just and par cular injust - the law bids us prac ce every virtue and forbids us to prac ce any vice. And the things that tend to produce virtue taken as a whole are those of the acts prescribed by the law which have been prescribed with a view to educa on for the common good ius a commuta va: (rec catory jus ce) focus on transac on / rela on both for voluntary and for involuntary rela ons o di erent types o involuntary - (ius a correc va) • not looking at individual people • private law • e.g. most civil law norms (our con nent) ius • • a distribu va: (distribu ve jus ce) focus on individual people, common possesions What do they merit? equal / unequal equals receive equal shares unequal receive unequal shares public law e.g., most tax law norms, social bene ts „Lady Jus ce not blindfolded“ • • • • • • • • Types of transac ons • voluntary transac ons: sale, purchase, loan for consump on, pledging, loan for use, deposi ng. le ng o the origin is voluntary • involuntary o clandes ne: the , adultery, poisoning, procuring, en cement of slaves, assassina on, false witness o involve force: assault, imprisonment, murder, robbery with violence, mu la on, abuse, insult it makes no di erence whether a good man has defrauded a bad man or a bad man a good one, nor whether it is a good or a bad man that has commi ed adultery; the law looks only to the dis nc ve character of the injury -> judge tries to equalize things by means of the penalty - „animate jus ce“ The equal is intermediate between the greater and the lesser line according to arithme cal propor on. It is for this reason also that it is called just (dikaion), because it is a division into two equal parts (dikha), just as if one were to call it dikhaion; and the judge (dikast s) is one who bisects (dikhast s). both loss and gain come from voluntary exchange Reciprocity - jus ce for Pythagoreans, but does not t neither distribu ve nor rec catory jus ce for in many cases reciprocity and rec catory jus ce are not in accord (wound) - propor onate return: cross-conjunc on; - for this purpose serve money = intermediate (nomisma)—because it exists not by nature but by law (nomos) and it is in our power to change it and make it useless just ac on is intermediate between ac ng unjustly and being unjustly treated jus ce is a kind of mean, but not in the same way as the other virtues,* but because it relates to an intermediate amount, while injus ce relates to the extremes just - propor onate, injus ce - unjust - dispropor onate In the unjust act to have too li le is to be unjustly treated; to have too much is to act unjustly ti ti tti ti ti ti ti fi ti ti ti ti ti ti ti ti ē ti ti ti ti ti ti ti ti fi ti ti ti ti ti ti fi ti ti fi ti ti ē ti ti tt ti tt ti ft fi ti ti ti ti ti ti ti ti ti ti ti ti ti ti ft ti ti ff ti ti ti ti ti ti ti ti ti ti ti ti ff Seite 4 von 37 Law, commands and order Hayek: • - law as abstract and general rules - should not be confounded with commands applies to an unlimited number of situa on - must be applied universally - to everybody in the same manner - abstract and general manner is what secures freedom under the law • Set by custom or legislator • Law superior to pure forms of jus ce bc sets precise standards • Allows individuals to determine their rights and du es = basis for legal certainty • consequences known → law is kept • believes that judges should only apply law, not interpret it Friedrich A. Hayek, The Cons tu on of Liberty Chapter 10 - Law, Commands, and Order "The rule whereby the indivisible border line is xed within which the being and ac vity of each individual obtain a secure and free sphere is the law.“ -> law as the science of liberty - rules that people behave by get more and more abstract and general as their intelligence develops -> people delimitate their individual spheres by abstract rules = natural process, not invented by anyone - also present in animal socie es: natural rules develop unbeknownst to the individual animals that determine the spheres belonging to them - abstract rules (e. g. distance from home) determine the unconscious habits of animals -> abstrac on: when individual responds the same way to somewhat similar, but not totally iden cal circumstances - people unconsciously obey many abstract rules (=laws) without no cing LAWS VS. COMMANDS LAW: general, abstract, does not need issuer - ideally: once-and-for-all command -> abstract, concerns unknown people/ me/place (things that can happen at any me, anywhere) -> laws gradually become commands as they get more speci c - gives as much free choice to ac ng person as possible; only provides addi onal informa on to ac ng persons. x COMMANDS: - issued by speci c person to do speci c thing - choice lies with issuer of command - no free choice for ac ng person - only serves purposes of issuer biggest di erence: manner in which aims and knowledge that guide ac ons are distributed between the authority and the performer of the ac ons -> general transi on from speci city and concreteness (custom/command) to generality and abstractness (law) • true law has abstract character (only provides framework) • only gives broad direc ons for speci c circumstances (e. g. in case of re, leave building) - e. g. if a chief only gives general commands to serve his own means, subordinates can also pursue own interest within limita on of his interests (delimita on of private sphere) –› rights emerge (e. g. property right) /// evolu on from rules of custom to modern law: primi ve society has more strict and concrete rules of conduct -›growth of individual intelligence: rules need to be laid down explicitly and reformulated so as not to interfere with spheres of others laws for intrapersonal rela ons: prohibi ons are always nega ve, unless person they refer to has created posi ve obliga ons for himself laws are instrumental: people obeying them pursue their own interests, not those of the lawmaker (he can’t foresee individual circumstances) -> people’s ac ons are not subject to the lawmaker’s will - general law should not determine speci c ends of ac on (e. g. only prohibit the killing of speci c people/say speci cally what choices someone else wants you to make), only means - people know and can use legal cause-and-e ect rela ons for their own purposes (just like they know the laws of nature): they can plan with con dence - law just sets up ground-rules, like laws of nature ti ti ti fi ti ti fi ti ti ti ti fi ti ti ti ti ti ti ti fi ti ff fi ti fi fi fi ti ti fi ti ti ti ti ti ti ti ti ti ti fi ti ff ti fi ti Seite 5 von 37 Freedom under the law: when we obey abstract, general laws not speci cally laid down for us, we are not subject to someone else’s will –› we are free - law is not arbitrary (it consists of general rules (abstractness) that apply to everybody equally) - judge has to draw conclusions from law and par cular facts of case –› laws rule, not people Course 2: Notion of justice Aristotle - ius a distribu va + ius a commuta va CICERO (106-43 BC) ◦ jus ce as ra onal behaviour that is most likely to promote community of people and preserva on of community of life ◦ "Sed ius ae primum munus est, ut ne cui quis noceat, nisi lacessitus iniuria, deinde ut communibus pro communibus utatur, priva s ut suis.“ ◦ (But the rst task of jus ce is that no one harms another [neminem laedere], unless challenged by injus ce, then that he treats common property as common property, private property as his own.) AUGUSTINUS (354-430 AD) ◦ "Ius a, cuius munus est sua cuique tribuere - unde t in ipso homine quidam iustus ordo naturae, ut anima subdatur deo et animae caro.“ ◦ (Jus ce, whose task it is to appor on to each what is his [suum cuique], whereby a certain order of nature is established in man himself, so that the soul becomes subject to God and the esh to the soul [...].) ◦ dis nc on between divine jus ce and human jus ce ◦ human jus ce is always imperfect THOMAS HOBBES "DE CIVE" (1642), "LEVIATHAN" (1651) ◦ imagines c ous state of nature without property, jus ce or legisla ve authority with the possibility of coercion ◦ "homo homini lupus est“, "bellum omnium contra omnes" (the war of all against all) ◦ man’s only natural right (ius naturale): self-preserva on ◦ therefore humans enter into social covenant with each other -> crea on of state ◦ jus ce is only possible through governance of a state ◦ ci zens should never ques on state’s law BLAISE PASCAL (1623-1662) ◦ emphasises link between jus ce and force ◦ "La jus ce sans la force est impuissante ; la force sans la jus ce est tyrannique.“ ◦ (Jus ce without force is powerless; force without jus ce is tyrannical.) ◦ bemoans fragmenta on into di erent legal systems ◦ "Plaisante jus ce, qu'une riviére ou une montagne borne ! V rit en de des Pyrénées, erreur au-del .“ ◦ (Pleasant jus ce, which a river or a mountain bounds! Truth on this side of the Pyrenees, error beyond.) IMMANUEL KANT "GRUNDLEGUNG ZUR METAPHYSIK DER SITTEN" (1785), "DIE METAPHYSIK DER SITTEN" (1797) ◦ jus ce as an indispensable value ◦ "[...], denn wenn die Gerech gkeit untergeht, so hat es keinen Werth mehr, daß Menschen auf Erden leben" ◦ kategorischer Impera v („Gesetzesformel") ◦ "Handle nur nach derjenigen Maxime, durch die du zugleich wollen kannst, dass sie ein allgemeines Gesetz werde." ◦ law as instrument for prac cal implementa on of jus ce, in which principle of freedom is guaranteed by a reciprocal commitment JOHN RAWLS, "A THEORY OF JUSTICE" (1971) ◦ under a veil of ignorance, which principles of jus ce would free and reasonable people choose in their own interest? ◦ two principles of jus ce 1. Each person is to have an equal right to the most extensive total system of equal basic liber es compa ble with a similar system of liberty for all. ti ti à ti ti fl fi à ç ti ti é ti é ti ti ti fi ti ti ti ti ti ti ti ti ti ti ff ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti fi fi ti ti ti ti ti ti ti ti ti ti ti ti Seite 6 von 37 2. Social and economic inequali es are to be arranged so that they are both: (a) to the greatest bene t of the least advantaged, consistent with the just savings principle, and (b) a ached to o ces and posi ons open to all under condi ons of fair equality of opportunity.“ RONALD DWORKIN, "SOVEREIGN VIRTUE" (2000) ◦ equality as founda on of law ◦ responsibility of the state to ac vely uphold the principle of equality through social compensa on ◦ two principles required for a just society "The rst [...] once a human life has begun, it is of great and objec ve importance that it be successful rather than wasted, and that this is of equal importance in the case of each human life. The second [...] the person whose life it is has primary and nondelegable responsibility for that success.“ From justice to law FRIEDRICH AUGUST HAYEK, “THE CONSTITUTION OF LIBERTY” ◦ law as abstract and general rules ◦ law as alterna ve regula on method to command and custom ◦ how and why laws are observed is a free and own decision ◦ knowledge of man-made cause-and-e ect rela ons provides certainty ◦ to be applied universally, i.e. to everybody in the same manner ◦ this secures freedom under the law (Hayek - as Kant (law secures freedom) ◦ law may be set by custom or legislator ◦ consequences are known and therefore the law is kept • law is superior to pure forms of jus ce (person decides on a case by case basis) because it sets precise standard • also superior to command because it secure liberty • allows individuals to determine their rights and du es • basis for legal certainty 3 di erent angles - di erent views of the Cathedral - three builders that are working - what are you doing? 1: I am carving out a block out of stone 2: I am building a cathedral, 3: I am serving God similar to rela on between law and jus ce: you may interpret laws but that is 1 view of what you are doing, but then you may describe the same as dispute resolu on, and then you can also say I serve jus ce (also true - law aims to achieve a certain level of jus ce) not only jus ce but also peace jus ce, solving a dispute, interpre ng a law The Remaining Space for Jus ce some mes the law refers to jus ce or similar concepts examples: ◦ principle of good faith, Art 31(1) Vienna Conven on on the Law of Trea es, Art 7(1) Vienna Conven on on the Interna onal Sale of Goods (CISG) ◦ invalidity of contracts viola ng the principle of good faith, § 879(1) ABGB ◦ equitable remedies in the Common Law +Candy case+ Art 6(1) Direc ve 93/13/EEC (Unfair Terms Direc ve) obliges Member States to lay down that “unfair” terms used in a contract concluded by a seller or supplier with a consumer shall not be binding on the la er. Austrian law has transposed this Direc ve in § 879(3) ABGB and in § 6 Konsumentenschutzgesetz (KSchG). ti tt ti ti ti ti ti ti ti ti ti ff ti ti ti ti ti ti ti ti fi ff ti ti ti ti ffi ti ti ti ti ti tt fi ti ff ti ti ti Seite 7 von 37 Fairness (may come from sports) = equity = good faith unfair term - unjust term How to know what is unfair? Case law one of the sources Excep on: Radbruch’s Formula • normally jus ce is relevant only to the extent permi ed by posi ve law • but excep onally jus ce may prevail over law (if law is unjust) • e.g. resistance against laws of a dictator (wri en a er 3 Reich), it has to be really outrageous "Der Kon ikt zwischen der Gerech gkeit und der Rechtssicherheit d r e dahin zu l sen sein, daß das posi ve, durch Satzung und Macht gesicherte Recht auch dann den Vorrang hat, wenn es inhaltlich ungerecht und unzweckm ßig ist, es sei denn, daß der Widerspruch des posi ven Gesetzes zur Gerech gkeit ein so unertr gliches Maß erreicht, daß das Gesetz als ‘unrich ges Recht’ der Gerech gkeit zu weichen hat." Gustav Radbruch, SJZ 1946, 105 (107) - wri en law as the source of law „double view point - posi vism x excep on • law and jus ce are not iden cal • law - aims at regula on of human behaviour; is not necessarily just • but: jus ce serves as a background of law • no voluntary compliance with unjust or illogical law( could cause protests or social unrest) TWO NOTIONS OF LAW Law in the formal sense Law in the material sense • law=all rules in the correct procedure • law=rules that have a legi mate content • abstrac on is made from content of the law • correct procedure alone is not su cient • independent of jus ce • connec on to jus ce Schools of legal thought Natural Law • law is rights and du es inherent to human being • law applies to all socie es (universal) • law is immutable (eternal) • natural law can be found through use of reason • proponents: Kant, Rousseau, Voltaire Posi vism • law is determined by legislator • law is limited to the territory of the state by which it is enacted • law can be amended any me • judges must search for will of the legislator • proponents: Aus n, Hart, Kelsen Legal Realism • cri cism of "mechanical" and "formalist" deduc ons in law • law as a product of human ac on • emphasis on importance of judges for the law (law is judgemade) • proponents: Holmes, Llewellyn, Pound 📖 Holmes "The prophecies of what the courts will do in fact, and nothing more preten ous, are what I mean by the law". Law as science: „jurisprudence“ „ciencia del rechercho“ „Rechtswissenscha “ - knowledge of the law Course 3 - reading: Benjamin N. Cardozo, The Nature of the Judicial Process Hierarchy of Law (Law’s architecture) 1. Interna onal Law 2. EU Law 3. Cons tu on (Verfassung) (basis of every law - special posi on) 4. Acts of Parliaments (Gesetze) 5. Decrees (Verordnung) 6. 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 ä ti ä ö ti ft ti ft ü ti ti tt ft ti ti tt tt ti ti ffi ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti fl ti ti ti ti ti ti ti ti ti Seite 8 von 37 Na onal law that is not in conformity with EU/interna onal is not invalid, that would be too dras c, but is „ignored“ Determined by courts o cons tu onal (supreme) court (Austria, Germany, France) o by any court (US, UK) ▪ eventually se led by supreme courts - un l then the lower courts may do what they think is or isn’t cons tu onal, but not applied in the whole state (US) ▪ DC (district court) -> appeal -> CA (court of appeals) -> writ of cer orari -> SC (supreme court) • not every decision can be appealed ▪ a decision of SC is nal, cannot be a acked anymore (even if the SC changes its mind a erwards) Courts could decide to not apply Austrian law if it’s not in conformity to EU law EU law and interna onal law is based on cons tu onal laws of member states • • • • Interna onal Law • Suprana onal legal order consis ng of principles and rules • Regulates rela ons between subjects of interna onal law (e.g. states) • basic principle: parity of states (sovereign equality) • Obliges states, but not individuals x Na onal Law • Internal law of 1 state (also domes c law) • Created by central legisla ve body • Enforced uniformly by execu ve body • Monitored by a hierarchically structured judiciary • There are di erent views on rela on between IL and NL Rela on between interna onal and na onal law prac cally relevant for ques ons such as 1. Does interna onal law prime over na onal law, or vice versa? 2. Can na onal courts directly apply interna onal law? 3. Can individuals rely on rights under interna onal law? ti ti ti ti ti ti ti ti ti ti tt ti ti ti ti ti ti ti ti fi ti ti ti tt ti ff ti ti ti ti ti ti ti ti ti ti ft Seite 9 von 37 from interna onal POV: • Supremacy of interna onal law over na onal law • Art. 27 VCLT: „a party may not invoke the provisions of its internal law as jus ca on for its failure to perform a treaty“ • In excep onal cases states may invoke (apply, sich berufen auf) its own law, e.g., if given consent was obviously unlawful (given by someone without authoriza on to) • "A State may not invoke the fact that its consent to be bound by a treaty has been expressed in viola on of a provision of its internal law regarding competence to conclude trea es as invalida ng its consent unless that viola on was manifest and concerned a rule of its internal law of fundamental importance." From na onal POV: 1. Monism • Int. and nat. Law are one legal order • Int. is directly applicable in nat. courts • Inconsistent nat. law is void 2. Dualism • Int. and nat. law are two independent legal orders • Int. law becomes applicable through implementa on by nat. legisla on • Mi ga on: interpre ng nat. statutes in conformity with int. obliga ons • here is ra ca on important Na onal Posi ons • Austria: dualism: nat. act viola ng int. law to be applied by state authori es (but it does not mean EU is going to leave it like this :D but there are not many sanc ons) • France: supremacy of int. law over any rule of nat. law (Art. 55 Cons tu on) • Germany: supremacy of customary int. law (Art 25 Grundgesetz) • Italy: supremacy of customary int. law (Art 10 Cos tuzione) • UK: Interpreta on in conformity with int. law unless con ict => nat. act prevails • USA: Supremacy of int. law (Art VII(2)) only if treaty is self-execu ng but can be overwri en by act of Congress Nature of EU Law: EU Law = interna onal law? • binds sovereign states („Member States“) • based on trea es (e.g. TEU) BUT • binds also private individuals • EU ins tu ons are independent of MS • unanimity not universally required to adopt law • courts must interpret EU law autonomously => neither interna onal nor na onal law but suprana onal seminal judgement of CJEU (Van Gend en Loos case) -> The EEC cons tutes a new legal order (sui iuris) of interna onal law for the bene t if which states have limited their sovereign rights, albeit within limited elds, and the subjects of which comprise not only the Member States but also their na onals. - emphasised in later judgements of CJEU (e.g. Costa/E.N.E.L.) - "By contrast with ordinary interna onal trea es, 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 interna onal legal order with dis nct iden ty • in case of con ict EU law prevails or when EU has exclusive competence, shared competence or where nat. law hinders EU’s func on ⇨ disapplies EU law when viola on of fundamental rights or viola ons of the principle of conferral by EU (ultra vires act) fi ti tt ti ti fi ti ti ti ti ti ti ti ti ti ti ti ti fl ti ti ti ti ti ti ti ti ti ti ti fi ti ti ti ti ti ti ti ti ti ti fl ti ti fi ti ti ti ti ti ti ti ti ti ti Seite 10 von 37 Rela on EU Law - na onal Law 1) principle of supremacy • in case of con ict, EU prevails na onal law o law leads to disapplica on not invalida on of na onal law o from EU perspec ve absolute o 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 cons tu on -> the powers EU exercises can or can be not in conformity with the cons tu on, that should the German Cons tu onal Court decide ▪ it arrogates itself power to „disapply“ EU law in case of 1. viola on of na onal fundamental rights 2. speci c and manifest viola ons of the principle of conferral by EU (ultra vires acts) • interpreta on of na onal law in line with the EU 2) principle of pre-emp on • EU law excludes applica on of na onal law where the EU - has exclusive competence - has exhaus vely used a share competence - where nat. law hinders the EU’s func oning BUT scope and content of EU law is limited through 1) principle of conferral - limited competences 2) principle of propor onality (only acts as much as its necessary) 3) 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 interna onal law (Art 3(5) TEU) o "[The EU] shall contribute to [...] strict observance and the development of interna onal law [...]” CJEU: Interna onal agreements are integral part of EU law o but: individuals can invoke only “self-execu ng” provisions of interna onal law o compa bility of interna onal 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 trea es that Member States signed with other en es in IL clause „if a MS is already bound by an interna onal conven on with a non-EU state, this conven on does not lose its validity.“ A er Brexit, the GB s ll applies EU acts (un l told otherwise) • • • • • • • ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti fl ti ti ti ti ti ti ti fi ti ft Seite 11 von 37 The plurality of Law Legal Tradi ons of the World Compara ve Law - Legal Tradi ons of the World Civil Law (mostly Europe, South America, Part of Asia) x • Many codi ca ons • Precedent not legally binding • Strong in uence of scholars • Based on acts of parliaments • Franco-German tradi on • abstract-general terms of 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 codi ca ons, e.g. no civil code, but there are a few excep ons • Anglo-American tradi on • case law (stare decisis) • but also statutory law Religious laws (islamic countries, Va can) • Law as will of God • Inspires state law • Role of clerics • certain in uence of religion even in countries without religious law Mixed systems • Combines features of several tradi ons The Judge in Common Law Systems Applies cons tu on or statutes (common law of course has statutes, but not codes) o needs to ll gaps o must clear doubts/ambigui es in the law o mi gate hardships and wrongs in the law • Applies precedents in the absence of legisla ve text o compares present with prior case (stare decisis) o discovers law by way of induc on (courts as „laboratories of the law“) o establishes new law by crea ng legal principles (these principles are then called the „Common law“) o B. Cardozo, The Nature of the Judicial Process (1921) o ra o decidendi - "the point in a case that determines the judgement" or "the principle that the case establishes - in uenced by Anglo-Saxon philosophy (e.g. Francis Bacon) x German (does not need any sta s cs etc.) - Philippines: mixed legal system (civil law + common law : historically - in uence 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 delimita on: facilita ng legal educa on alloca on of subject ma ers to respec ve code assignment of jurisdic on 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) Interna onal encyclopedia of Compara ve Law vol II ch. 2 +What is the role of the dis nc on in the Common law systems?+ ‣ ‣ ‣ ‣ Encyclopedia of compara ve law - my notes: Public law is that body of law which governs the a airs of the communi es (the states, municipali es, public corpora ons etc.) among themselves and the acts of the authori es to which the individual is subject. Private law regulates legal rela ons in which persons confront each other as individuals, theore cally, at least, on an equal ti ti ti ti ti fl ti ti ff ti ti ti ti ti ti ti ti ti ti ti ti tt ti ti ti ti ti ti ti ti ti ti ti ti fi ti fl fi fl fi ti ti ti ti fl ti Seite 12 von 37 foo ng. This division of law is based on the dis nc on drawn by Roman Law, a dis nc on which stands in the forefront of Jus nian'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 (revolu ons, change from a monarchy to a republic - they did not have that, they s ll 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 prac cal e ect in England“ he describes a legal system of England in contract to France (less in uenced by logical principles, prac ce is more important) yes, ofc we have a dis nc on between the state and individuals but we do not really feel this dis nc on, there is no dis nc ve a tude of mind and also no special courts for this but ofc there are rela onships between the state and the ci zens and also between the ci zens themselves, with a li le e ort they can understand what we are talking about when we say public law and private law Public law Private law deals with rela on between state and ci zens principle of subordina on rights and du es of the individuals (commuta ve jus ce) • Cons tu onal law • Administra ve law • Criminal law (French think its private law) concerning rela ons between two individuals/private persons; principle of equality, rights and du es can be amended by agreement (distribu ve jus ce) • General Civil Law • Consumer Law • Commercial Law • Labour law (rela on between employer and employee) Administra ve law: Police Law, Municipal law, Construc on & Planning, Industrial law (=Gewerberecht - in English they do not have that - they have free industry (freie Gewerbe) - no professional pain ng, plumbing etc.) this is NOT trade law, Environmental law, Migra on & 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 - rec catory jus ce - you do sth and you get damages), Property, Family, Succession 1. Determina on 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 formula on of Ulpian i. and in its modern form states that where legal rules seek to further a collec ve interest, they cons tute public law, whereas if the object in view is the furtherance of a private interest, they cons tute private law. The interest theory thus bases the dis nc on on the purpose which can be discerned from the content of the law and characterizes as public-law legal rela ons those in which the public interest is dominant. ii. The main objec on to this theory is that private and public interests are frequently interwoven, and it is di cult to determine whether the inten on of the legisla on was to protect private or public interests; moreover, all legal rules can be said to serve simultaneously private and public interests. b. Public law deals with the condi ons of the community, private law with the bene t of the individuals. (Ulpian, Digest) 2. Theory of subordina on (Subordina onstheorie; theory of legal-plus value): rela on of subordina on/ superiority or equality — The dis nc on between public and private law is based on a di erence between legal rela ons where both par es are equal and legal rela ons where one party is inferior to the other a. This dis nc on is unsa sfactory for several reasons: First, there are clearly rela ons of legal subordina on in private law, for example, the rela on between parent and child. Second, there are rela ons of coordina on in public law, for example, that between two local authori es. b. Finally, the dis nc on really begs the ques on (pe o principii), because the rela on of subordina on - coordina on is the result and not the cause of the public-law rela on; in many cases, the issue is whether the state or a public authority has acted in its public or private capacity, and ti ti ti ti ti ff ti ti ti ti ti fi ti ti ti ti ti ti fi ff ti ti fl ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ffi ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti tti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ff ti ti ti ti ti ti tt Seite 13 von 37 3. Determina on by subject ac ng (modi zierte Subjektstheorie): does a legal norm en tle or oblige the sovereign as such; ie precisely in its capacity as sovereign? i. the public-law norm is a norm regula ng rela onships in which the state or another public authority (local authority or other public organiza on) par cipates, on at least one side. The obvious objec on to this dis nc on is the fact that there are numerous private-law rela ons in which the state takes part. => should be used together Private Interna onal Law (called also Con ict of laws) • Determines which law applies in cross-border situa ons • Di ers in various legal systems • Closely connected to con ict of jurisdic on • 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 ques on - do we have a jurisdic on? how much of the harassment have the UK? - the decided no, which ended the case (but if they had jurisdic on - 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 applica on of a foreign law ▪ when a foreign legal rule is so repugnant, alien, strange, o ensive for us that we cannot accept that our courts apply it (it is also illegal) it completely incompa ble with the no ons of what we think is law — then we do not apply it ▪ what happens then? there is vacuum — if we do not nd any other means, we try to apply the contract, if s ll 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 Conven on on Choice of Court Agreements - binds courts to accept jurisdic on if their courts are selected (UK, EU did sign and ra ed this) Substan ve law X • Determines what legal subjects may/not do • All legal norms concerning content/crea on/ altera on/transfer/expiry of rights or obliga ons • how you create/transfer rights or obliga ons… • Private or public law Procedural law • All legal provisions conc. decision-making • also extremely important • Rules for judicial + non-judicial proceedings • judicial (in front of courts) + arbitra on o either an expert in the ma er (e.g. industrial ma ers) or law professor (if it is a legal ma er) • Arbitra on is per se neutral • Deals with jurisdic on, manner in which decision is reached, form of decision (its no ca on & e ec veness) • Part of public law (because it is how a judge who is a public o cers has to act) o you cannot choose the procedure law, the na onal law of the court is used (no English procedural law in Austrian court) - in arbitra on it is possible Mandatory law (obligatorisch – ius cogens) • Rules which can’t be deviated from by contracts • Reasons for binding e ect: protec on of public interests, weaker par es or third par es • Some mes only unilaterally mandatory (e.g., consumer law or employment law) - just oneparty waiver • Part of public law • what is for protec on of the legal party is usually mandatory; family law • In PIL - di erent (through trea es 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) X Supplementary law (ergänzend – ius disposi vum) • Statutory (legal) rules that can be deviated from (e.g., through contracts) • e.g. brand protec on; vast majority of ABGB Di erences 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-examina on“ (also typical for common law) - the lawyer of the plain examines the other lawyer - never happens in a civil law court ti ti ti ti ff ti ti ti ti ti ff fi ti ti ti ti fi ti fl ti ti ti fi ti ti ti ti ti ti ti ti ti tt ti fl ff ti ti ti ti ti ti ffi ti ff ti ti ti ti tt tt ti ff ti ti ti ti ti ti ti fi ff ti ff Seite 14 von 37 Candy case: the court of Singapore would use the law of Singapore as procedural law and Austrian law as substan ve law. Unfair terms are mandatory and cannot be deselected by the par es. However, the consumer can waive its right to unfair terms control in li ga on. 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 signi cant unbalance for one of the par es • Legal Dogma cs (= legal doctrine) • generally meant when talking about law • how to correctly apply the exis ng 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 prac ce 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 poli cal jurisprudence ◦ deals with law not yet in force (lex ferenda) (= law that is to make, that should be) ◦ cri cal assessment of exis ng rules ◦ asks how the law should be reformed or amended (“policy”) legal philosophy ◦ asks fundamental ques ons about the law - e.g. What is the rela on between law and jus ce? ◦ detached from par cular legal system legal theory ◦ examines condi ons 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 a ect people’s interac on? law and economics (= economic analysis of the law) ◦ analysing the interplay between the law and economic factors ◦ Which legal rules are economically e cient? ◦ very prominent in USA in the last decade compara ve law ◦ looking for di erences and commonali es between di erent legal orders (the rule of a singular country compared to another rule from another country), what are the di erences and why ◦ can be done on macro level (legal families) or micro level (speci c ques ons) • further legal disciplines: legal informa cs, legal linguis cs, legal didac cs, law and anthropology (how the law relates to the world view of mankind of certain people - anthropologist would normally go to exo c 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 - Ka a), 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) C. Legal Source the twelve table law - adopted in the Roman Empire (400 BC) - kind of the rst laws that systema cally put down rules of law - revolu onize how to inform ourselves about the law, accessibility ti ti ti fk ti ti fi ti ti ti fi ff ff ti ti fi ti ti ti ffi ti ti ti ti ti ti ti ti ff ti ff ti ti ti ti Seite 15 von 37 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 cons tu on (gives us the standard to say whether it is a correct procedure and if it is the material meaning - fundamental values) Where does a cons tu on derive its norma ve power from? • Previous cons tu on; but from where does a previous cons tu on get its power from? • One (posi vist) answer: from basic norm (Grundnorm) =“the norm authorising the historically rst legislator”, establishes validity of all other norms of a legal system, determines competence (procedure/form of law crea on, 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 cons tu on ▪ invented by Hans Kelsen (Uni Wien professor) - General Theory of Law and Statutes p.116 • Reine Rechtslehre (pure theory of law) - most famous book; dogma sm (not historical approach or philosophy, but through a pure legal logic, legal theory) Art 38 Statute of the ICJ - (usually procedural law), goes a li le bit also into substan ve law - what are The Sources of Interna onal law 1. interna onal conven ons 2. Interna onal custom 3. general principles of law (recognized by civilized na ons - old-fashioned and colonial discriminatory) subsidiary: 4. judicial decisions and the teachings of the highly quali ed publicists of the various na ons Why do interna onal conven ons have binding force? (Reader) How to nd interna onal trea es: UN Treaty Collec on A famous Interna onal Treaty - Vienna Conven on on the law of trea es („the cons tu on of PIL“) Sources of EU law • Primary law (trea es - TEU, TFEU) • Secondary law (regula ons and direc ves) • Decisions by EU authori es (e.g. CJEU, Commission) • So law by EU authori es (guidelines, recommenda ons) -> Find EU law: EUR-Lex website EU secondary legisla on Regula ons (Verordnungen; Art. 288(2) TFEU)): Direc • binding in their en rety (word by word) • • direct e ect ie can be directly invoked by EU • ci zens • require no implementa on/transposi on by MS • • famous EU Regula on: Cancella on of ights • ves (Richtlinien): binding with respect to the result to be achieved no direct e ect (safe for late transposal) require transposi on (implementa on) by MS (decided in the CJEU Case of Frankovich) principle of minimum harmonisa on (EU sets a oor - low standard - you at least have to do this, but you can go further) • famous EU Direc ve: on consumer rights clear tendency within the years that more regula ons are adopted than direc ves tt fi ti ti ti ti ti ti ti ti ti ti ti ti ti tt fi ti ti ti ti ti ti ti fl ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ff ti ti ti ti ti fi ff ti ti ti ft Seite 16 von 37 ti fl Sources of int. law 1. interna onal trea es 2. statutes 3. custom (par cularly important in PIL) 4. precedents (in Common law jurisdic on) Not sources of law • Sources to inform about law: • court decisions (in Civil law jurisdic on) • doctrine (all the wri ngs of law professors, academics, researches) • private contracts - are not law, but a method to change a legal situa on within the boundaries permi ed by law (it is supplementary) - French said that contract = law of par es (but not seriously) why do use direc ves? every country has its culture, its way of doing things - it is be er 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) Crea on of Law Branches of the states • Legisla ve branch (legislator, legislature) o adopts laws o depu es - typically democra cally elected nowadays (was not like that always - Montesquieu) o cons tu on and statutes • Execu ve branch (administra on, government in the wide sense) o applies law, adopts decrees o o cials employed by state, subject to orders o administra ve acts • Judicial branch (judiciary): o applies and controls laws and its applica on by execu ve (originally just controlled the applica on; in U.S. would also create laws) o judges employed by state but independent, usually appointed for life o 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 execu ve implements the acts, legislator can ask execu ve to draw the law before se ng the rules • the execu ve acts are controlled by the judiciary, execu ve has to take into account what the judiciary says • the judiciary has to comply with the legisla on (with civil law) but at the same me can control the legislature • -> noone has the absolute power • Execu ve and judiciary make laws more realis c/concrete • Administra ve acts and judgements must comply with law (legislature) • Courts can check validity of legisla ve & administra ve acts Adop on of Interna onal Treaty Diploma c conference (ambassadors and government o cials of di erent states) => agreement by all par cipa ng states => adop on => signature => ra ca on Adop • • • • on of primary EU law (TEU, TFEU) is done like adop on of interna onal trea es Same procedure for amendment All (27) members need to consent Similar: accession by new member states (Art 49 TEU) o requires approval of majority of EP members and unanimous decision of Council o condi ons of admission decided by agreement between MS and applicant state o candidate states: Moldova, Montenegro, North Macedonia, Turkey, Ukraine, Serbia, Bosnia&Hercegovina, North Macedonia; poten al candidate states: Georgia, Kosovo o if someone wants to join the EU they have to „take the whole package“ o possible adjustments of TEU and TFEU if a new state would join (especially a huge country) Adop on of secondary EU law • Legisla ve proposal (only by Commission) => readings (by EP and Council; up to two readings) => concilia on commi ee => third reading • Constant trilogue in the mean me (Commission + EP + Council) - „behind closed curtains“ o Commission also concerned with the applica on of EU law („the execu ve body“ of the EU) but here they also play a crucial role in the legisla ve process here (a bit of a contradic on) ti ti ti ti tt ti ti ti ti ff ffi ti ti ti ti ti ti ti ti ti ti ti fi ti ti ti ti ti ti ti ti ti ti ti ti ti ti tti ti ti ti ti tt ti ti ti ti ti ti ti ti ti ffi Seite 17 von 37 Adop • • • • on of statutes in Austria Popular ini a ve (Volksbegehren; 100.000 ppl or 1/6 of three states) Federal government Federal Council Members of Na onal Council o These 4 have the right of ini a ve (Gesetzentwurf - Art 41 B-VG) => proposal goes to na onal council (Gesetzbeschluss) => federal council => (referendum or federal states =>) federal president signature => chancellor proclama on (publica on on the o cial journal) => entry into force Majority requirements • Enactment of a statute requires majority of the competent legisla ve body • Requirements of necessary majority may di er: o Approval rate (percentage of votes in favor - e.g. 50% + 1,67%) o Reference group from which percentage is calculated (total number of members, number of present members) o Quorum (minimum number of members of a group or commi ee required to be in a endance in order for that group to be able to take o cial ac on) in decision process Simple majority - Na onalrat, European Parliament, UK House of Commons Cons tu onal majority - Na onalrat, European Parliament Quali ed majority - EU Council (55 % + 15 MS/65% popula on of the EU) biggest safeguard: cons tu onal court Legislation by Executive Branch EU Delegated Act • special provision in the TFEU • non-legisla ve acts of general applica on to supplement or amend certain non-essen al elements of the legisla ve act (s ll a legisla on) • Can be authorized by EP and Council, adop on by Commission, publica on in O cial Journal (there are called Commission regula on - Commission direc ve) • Delegated Act by the Commission on how much money the Bank should have Decrees (Verordnungen) • Adopted at na onal level by execu ve branch (governments or ministers) • Func onally legisla on ( =abstract and general rules) ti tt ti ffi ti ti tt ti ffi ti ff ti ti ffi ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti fi ti Seite 18 von 37 Apply to a number of situa ons that s ll needs to be speci ed Require speci c authoriza on by parliament Mostly publica on in o cial journal (Bundes- or Landesgesetzbla ) but also other forms - e.g. tra c signs) E ect similar to law Decrees (na onal level) must not be confused with EU Regula ons! • • • • • Administra ve act (Bescheid) • Act adopted by execu ve branch • Requires speci c competence, procedure and form • Separa on of powers - execu ve must be authorized by legislature (Art. 18 B-VG) • Apply to speci c individual cases • Subject to control by administra ve courts • speci city of Austrian law (not e.g. in Germany) • to be dis nguished from direct command and coercion by administra ve authority (AuvBZ - Akt unmi elbarer 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 administra ve 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) Administra ve procedure at a Glance authorisa on by law -> authority exercises power (adop on of act) -> nality of act (unless court challenge) -> even administra ve act can become nal and be challenged if somebody says I want to build the house next to yours (usually authorisa on from the neighbors needed, because it can a ect them) -> can be challenged in a court, if you do not do it and then a er 1 year decide well the neighbor is not really nice and challenge rst then, then you may have passed the delay also administra ve 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 nal and you cannot challenge it anymore -> law-making e ect even of administra ve acts if you have not been informed correctly, you may challenge it s ll even a er the act has taken place (but u