1. INTRODUCTION

The Austrian legal system is based on the principle of the (relative) unity of the system of sources of law. This principle holds that the Federal Constitution itself definitively determines which sources of law are permissible and how these sources of law are established. These recognised sources of law include, in particular, federal and provincial constitutional laws, ordinary federal and provincial laws, regulations, administrative decisions, court judgements and the „exercise of direct administrative authority and coercive power“.

The Constitutional Court (VfGH) has derived this principle from the system of legal protection under federal constitutional law. The starting point is that the instruments of legal protection provided for in the Federal Constitution are „case-specific“; in other words, they are linked to specific forms of sovereign action. If it were permissible to create new general or individual sources of law not provided for under constitutional law, this could undermine the legal protection guaranteed by the Constitution. For this reason, a „requirement for specific legal forms“ applies: new legal forms cannot be created at will, but require a corresponding constitutional basis.

The coherence of the system of sources of law thus serves, first and foremost, to guarantee effective legal protection and legal certainty. Furthermore, it ensures the democratic legitimacy of state action and the possibility of judicial review by (ultimately) the courts of public law.

In this context, the following points raised by Adolf Julius Merkl and Hans Kelsen The recognised „hierarchical structure“ theorems („hierarchical structure based on derogatory power“ and ‘hierarchical structure based on legal conditionality’) are of significance, as they explain the hierarchical order and derivation of the individual sources of law. These theorems will be discussed in more detail in a separate ‘Knowledge Bite’.

2. RELATIVE CLOSEDNESS?

The system of legal sources is therefore regarded as a coherent whole, particularly in the context of effective legal protection. This raises the question of why, nevertheless, the term „relative“ coherence is used.

The term „relative“ indicates that the system of sources of law is not entirely rigid. For example, individual sources of law that have emerged historically and are accepted under constitutional law are recognised, even though they are not expressly mentioned in the Federal Constitutional Act (B-VG) (e.g. collective agreements).

Furthermore, Austria’s system of legal sources was expanded under constitutional law following Austria’s accession to the European Union on 1 January 1995. With the introduction of EU law, a further source of law has been added, the provisions of which may, under certain conditions, even take precedence over national law. The coherence of the system of sources of law does not preclude such a development, provided that it is based on an appropriate constitutional foundation.

3. TO PUT IT INTO A NUTSHELL

The principle of the (relative) coherence of the system of sources of law holds that the Federal Constitution essentially determines which sources of law are permissible and how they may be created. It serves to safeguard legal protection, legal certainty and democratic legitimacy.

The addition of the word „relative“ makes it clear that, whilst the system of sources of law is in principle closed, it may also include, in particular, historically recognised sources of law. Furthermore, the system of sources of law can be further developed on a constitutional basis and expanded to include new sources of law (see, for example, Austria’s accession to the European Communities).

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