1. GENERAL INFORMATION ON POSITIVE LAW

Art 1 „Federal Constitutional Law“ („B-VG“) regulates the following (emphasis added):

„Austria is a democratic republic. Its law emanates from the people“.

This means that the source of law is the people. The people are organised in the state, and in principle only the law that has been established by the state applies. This so-called positive law is binding and can be enforced with the help of the state.

The term „positive“ is not to be understood in the sense of „good“ or „desirable“, but is derived from the Latin „ponere“, which means to set, lay, place. This is why it is also referred to as „ius positivum“, the established law.

In principle, the following applies: Those requirements that are regulated in a law or in an ordinance or similar apply and should be complied with by those subject to the law.

2. „POSITIVE LAW“ VS „COMMON LAW“

The Austrian constitution contains a catalogue of legal sources. It therefore conclusively regulates the forms in which law can arise (e.g. statute, ordinance, treaty, decision, judgement). „Customs“ as sources of law are not provided for.

By way of exception, however, legal regulations stipulate that in specific cases, customs and traditions must also be taken into account. Section 863 (2) ABGB, for example, stipulates the following:

„With regard to the meaning and effect of acts and omissions, consideration must be given to the customs and practices prevailing in honest dealings.“

However, this „customary law“ is not an independent source of law, but is only to be taken into account because a law orders this. This is the case if the following requirements are met: Firstly, there must be a uniform and regular practice within the legal community, and secondly, there must be a conviction (opinio iuris) that this practice is legally binding and enforceable.

However, such „customary law“ is only to be considered secondarily. It is primarily used in private law to interpret and fill gaps in existing standards (see e.g. Section 863 ABGB) and is only applied on a subsidiary basis.

3. EXAMPLES

3.1 Statutory law

Section 1 (3) of the Driving Licences Act (Federal Law Gazette I 120/1997 as amended by Federal Law Gazette I 90/2023; „FSG“) regulates the following:

„The driving of a motor vehicle and the towing of a trailer is only permitted with a valid driving licence issued by the authority for the category (§ 2) in which the motor vehicle falls, except in the cases of para. 5“.

According to the FSG, a motor vehicle may only be driven if the person concerned has been issued with a driving licence.

3.2 Habits and customs

Section 356 of the Austrian Commercial Code (dRGBl 219/1897 as amended by BGBl I 133/2024; „UGB“) regulates the following:

„Between entrepreneurs, the meaning and effect of actions and omissions must take into account the customs and practices applicable in business transactions“.

This provision is comparable to that in the ABGB (Section 863 ABGB). The „principles of proper accounting“ (Section 190 UGB) can be used as an example. According to this, an entrepreneur must keep his books in accordance with the principles of proper accounting. The principles in question (completeness, truth, accuracy, clarity and verifiability, etc.) were originally partly regulated by law and partly developed through customary practice. Nowadays, more or less all of them are enshrined in law, although not (directly) in the UGB.

4. TO PUT IT INTO A NUTSHELL

In Austria, the source of law is the people, which in turn is organised in the state. Only the law established by the state is binding and enforceable.

It follows from this: No matter what legal issue needs to be resolved - the answer can be found in the law.

We are happy to support you in solving your legal issues. Score points with us!