Austria - Constitutional Court, 22 September 2008, B753/08
Keywords:
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
Headnote:
Failure to receive basic services does not represent a reduction within the meaning of Art 16 Reception Conditions Directive. The Reception Conditions Directive does not standardise decision deadlines with regard to applications for the granting of basic services.
Facts:
The Applicants are an Armenian married couple. A negative decision which has become final was reached in February 2007 with regard to their application for asylum. They had already received only health insurance services before this, but not other basic services. After the decision which became final in the asylum proceedings, the health insurance services were also suspended.
In May 2007 they submitted a further application for asylum as well as an application for basic reception services in June 2007. A decision was not taken on the application for basic reception services as the Applicants did not submit the notifications from the asylum proceedings requested by the basic services authority (provincial government).
The second application for asylum was finally refused in January 2008.
In January 2008, after the negative decision in the asylum proceedings, the Applicants submitted a devolution request to the Independent Administrative Chamber with regard to their applications for basic reception services owing to a breach of the six-month decision deadline by the basic services authority. This application was refused in March 2008 as inadmissible, as the decision deadline had not been breached by the first authority.
The Applicants lodged an appeal to the Constitutional Court against this decision owing to an asserted violation, amongst other things, of Art 13 ECHR.
Decision & reasoning:
The appeal was refused.
The Applicants had already received merely reduced services from the basic reception services during their first asylum proceedings. These services ended with the conclusion of the first asylum proceedings. Failure to grant basic reception services during the second proceedings did not therefore represent a withdrawal, but a refusal of basic services.
With regard to the refusal of basic care services, there are no regulations in existence in the Reception Conditions Directive, therefore national law is to be applied. Community law does not provide for any decision deadline for applications for basic reception services. On the other hand, national law provides for a six-month decision deadline, which was not breached in this case.
In principle a decision is required on an application for basic reception services without any unnecessary delay. An authority, which – although it could decide earlier – waits for the decision deadline, is therefore acting unlawfully. It is precisely in cases of basic services that it is expected of an authority that it will complete the investigations as quickly as possible and issue a decision immediately in order to avoid this illegality, which would lead to official liability. In this case the Applicants have however caused the delay themselves as they did not submit notifications from the asylum proceedings, despite being requested to do so. The obligation to reach a decision was therefore not infringed here.
Furthermore, the Reception Conditions Directive 2003/9/EU does not provide that for applications for the granting of reception services, the latter had to first be provided temporarily until a decision is issued, regardless of the existence of conditions on which to refuse the granting of such services.
Outcome:
Appeal refused
Observations/comments:
Similar decision to reduce basic services: The Constitutional Court (VfGH) 11.06.2008, B2024/07
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Austria - Constitutional Court, 11 June 2008, B2024/07 |