Austria - Constitutional Court, Decision dated 28 June 2017, E 3297/2016-15

Facts:

The appellant is an Iraqi national and holds the status of a beneficiary of subsidiary protection in Austria. His application for the means-tested minimum income scheme was refused by the local authorities with decision dated 24 August 2016. The refusal was justified by referring to the legislation amendment according to which beneficiaries of subsidiary protection are no longer entitled to such benefits pursuant to Section 5(3) Nr. 4 Lower Austrian Means-tested Minimum Income Scheme Act (Niederösterreichisches Mindestsicherungsgesetz [NÖ MSG]). An appeal to the Regional Administrative Court Lower Austria was rejected with a decision dated 7 December 2016.

The appellant appeals against this decision to the Constitutional Court on the basis of Art. 144 Federal Constitution (Bundesverfassung [B-VG]).

He claims that the legislative amendment has the effect that he will only be entitled to social assistance on a lower level according to the Lower Austrian Basic Supplies Act (Niederösterreichisches Grundversorgungsgesetz [NÖ GVG]), which is not sufficient to cover his subsistence. He claims that this amounts to a violation of Art. 3 European Convention of Human Rights (ECHR). He, furthermore, complains that beneficiaries are discriminated against persons entitled to asylum as they continue to fall within the personal scope of the benefits in question and that his confidence in a continuation of the legal situation before the amendment must be protected.

Decision & reasoning:

In proceedings pursuant to Art. 144 B-VG, the Constitutional Court examines only as to whether the legal basis on which the decision of the Regional Administrative Court dated 7 December 2016, in this cases Section 5(3) Nr. 4 NÖ MSG, violates subjective constitutional rights.

The Court found that the new provision does not constitute a violation of Art. 3 ECHR, as the appellant continues to have access to basic supplies according to the NÖ GVG and is thus not put into a situation where he faces inhumane or degrading treatment.

The Court then went on to examine whether Section 5(3) Nr. 4 NÖ MSG is compatible with the principle of non-discrimination amongst foreigners which, according to settled case-law of the Court, derives from Art. I(1) Constitutional Law on the Implementation of the International Convention on the Abolition of any kind of Racial Discrimination (Bundesverfassungsgesetzes zur Durchführung des Internationalen Übereinkommens über die Beseitigung aller Formen rassischer Diskriminierung). Different treatment may only be admissible in cases where it is justified and in respect of the principle of proportionality. The Court noted that the key difference between beneficiaries of subsidiary protection and persons entitled to asylum is the temporary residence right of the former (one year, with possible renewal). The legislator has, in principle, a wide margin of appreciation when adopting legislation in the field of social assistance with basic supplies and is only restricted by the principle of non-discrimination in so far, as there must an objective reason for different treatment and the level of social assistance must not be inhumane. According to the Court, the question whether beneficiaries of subsidiary protection may be excluded from access to benefits under the means-tested minimum income scheme, falls within the margin of appreciation. Given benefits under the basic supplies legislation (NÖ GVG) pursue the same legislative intention as the NÖ MSG, i.e. allowing persons in need to live a humane life, the Court found that the legislator could adopt a rule such as Section 5(3) Nr. 4 NÖ MSG.

A violation of the principle of non-discrimination could only be considered if the decision dated 7 December 2016 has acted arbitrarily in applying the legislation. This would be the case if the Regional Administrative Court would have significantly misjudged the legal situation. In this respect the Constitutional Court examined whether Section 5(3) Nr. 4 NÖ MSG is incompatible with EU law and, more specifically, Directive 2011/95/EU. According to settled case-law of the Court, a violation of EU law is only relevant if it is evident and violates the prohibition of arbitrariness. The Court then ruled that this is not the case in the present proceedings as the Federal Administrative Court could not find a violation of EU law in a very similar case (see also VwGH, 2008/10/0001, Decision dated 15 December 2011).

The Court further ruled that Section 5(3) Nr. 4 NÖ MSG does not violate any other constitutional rights contrary to that which was claimed by the appellant. The appellant’s right to trust that the former legal situation continues to apply is not interfered with according to the Court, as in the field of tax-funded benefits such trust does not derive from any constitutional provision or principle. No exception applies which would have required to inform the appellant sufficiently in advance of the new legal situation.

The Constitutional Court found, that Section 5(3) Nr. 4 NÖ MSG is in line with subjective rights deriving from the constitution and dismisses the appeal as being unfounded. 

Outcome:

The Constitutional Court dismisses the appeal as being unfounded. No violation of subjective constitutional rights could be found.

Observations/comments:

Case summary written by Chad Heimrich (LLM candidate, Queen Mary University of London).

Other sources:

Materials to Section 5 Abs. 3 Nr. 4 NÖ MSG (AA Ltg.-839/A-1/63-2016)