Austria: Constitutional Court, 12. December 2018, E 1277/2018-13

Facts:

The complainant is an Irani national, who has been granted asylum in Austria. He applied for benefits under the regional Burgenland Minimum Security Act (Bgld. MSG). As a result, he was awarded different amounts of benefits for the following months (between EUR 189 and EUR 584). The complainant lodged a complaint and argued that the application of the “Minimum Standards – Integration” pursuant to §10 Bgld. MSG was unconstitutional. According to §10a Bgld. MSG the amount of the minimum benefits depends upon the duration of residence in Austria within the last six years. Therefore, if the applicant for minimum benefits has not resided in Austria within the last six years, the amount of benefits granted is lower.

The authority finds §10a Bgld. MSG as constitutional and points out that due to the increase in expenditure for the means-tested minimum benefits, criteria for the amount of the benefits must be laid down. Linking the amount of minimum benefits to the duration of residence in Austria within the last six years shall help to pursue the aim of the means-tested minimum benefit system. This aim is the temporary prevention of emergencies and the long-term integration into the labour market and society.

Persons who had resided in Austria for less than five years within the last six years were granted reduced benefits and had to conclude an integration agreement. Furthermore, the authority argued that neither the prohibitions of discrimination under Article 23 of the Refugee Convention nor Article 29 of the recast Qualification Directive 2011/95/EU were violated by §10 Bgld. MSG, since the latter does not differentiate according to nationality, but according to the duration of residence.

Decision & reasoning:

The Court concluded that §10a Bgld. MSG is unconstitutional and ruled that this provision is no longer applicable.

The unconstitutionality of §10a Bgld. MSG had already been decided by the Court on 01.12.2018 (Constitutional Court, 1.12.2018, G 308/2018-8). In that decision, the Court had based its findings on the fact that the length of residence in Austria within the last six years as the set out in §10a Bgld. MSG does not constitute an objective differentiation. The provision infringes the principle of equality, as enshrined in Article 7 B-VG and Art. I para. 1 of the Federal Constitutional Act regarding the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. The principle of equality prohibits treating persons entitled to asylum in the same way as persons who can return to their country of origin at any time.

In the present decision, the lower court had applied the unconstitutional §10a Bgld. MSG to the detriment of the complainant's legal position rendering the appeal successful.

Outcome:

Appeal granted.

Observations/comments:

Prior to this decision, the Constitutional Court (Constitutional Court, 1.12.2018, G 308/2018-8) had to examine a similar case regarding the lawfulness of §10a Bgld. MSG. The decision of 01.12.2018 is the basis for the present judgment.

This summary was written by Theresa Richter, LLM-student at Queen Mary University (London).