CASE OF EFE v. AUSTRIA

1. The case originated in an application (no. 9134/06) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian and Turkish national, Mr Mehmet Efe (“the applicant”), on 28 February 2006.
2. The applicant was represented by Mr H. Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
3. The applicant alleged, in particular, that because of the refusal of the Austrian authorities to pay him tax credits in respect of maintenance payments and family allowance for his children, he was a victim of discrimination.
4. On 6 November 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
5. Third-party comments were received from the Turkish Government, who had exercised their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)).
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in Turkey in 1955 and lives in Vienna. He moved to Austria in 1989 and has been living and working there ever since.
7. On 17 June 2002 he filed a claim for family allowance backdating to 1 June 1997 for his two children who had been resident in Turkey on a permanent basis. His daughter was born in 1978 and at the time of his claim in 2002 she had already finished her studies and taken up a job as a teacher. His son was born in 1980 and had been a student since 2000. Pursuant to a bilateral agreement, the applicant had been receiving a reduced family allowance until 1996.
8. On 17 February 2003 the Vienna Tax Office dismissed the applicant ’ s claim because the children were not resident in Austria, which was one of the main conditions for entitlement to such an allowance.
9. On 8 April 2003 the applicant lodged an appeal, referring to case - law of the European Court of Justice (ECJ). He argued that the decision taken against him contravened European Union (EU) legislation; however, he did not make a request for a referral to the ECJ for a preliminary ruling under Article 267 (ex 234) of the EU Treaty.
10. On 24 May 2004 the Independent Financial Panel ( Unabhängiger Finanz ­ senat – “the IFP ” ) dismissed the applicant ’ s appeal. It held that since Austria had on 30 September 2006 terminated the Social Security Agreement of 12 March 1985 between itself and Turkey ( Abkommen zwischen der Republik Österreich und der Türkischen Republik über Soziale Sicherheit ) and his children were not resident in Austria, he was no longer entitled to any family allowance. It further found that the applicant did not claim to have ever taken any steps to move his family to Austria.
11. On 23 September 2004 the applicant made a claim for legal aid and lodged a complaint with the Constitutional Court, alleging a violation of Article 6 of the Convention on the basis that his case had not been referred to the ECJ for a preliminary ruling, although it appears that no such request had ever been made by him. He also alleged breaches of Article 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.
12. On 30 November 2004 the Constitutional Court dismissed the applicant ’ s claim for legal aid because he had already been denied eligibility on 13 July 2004. It further declined to deal with the applicant ’ s complaint finding that it had no prospects of success, and, upon the applicant ’ s request, remitted the case to the Administrative Court. In particular it held that the IFP was not a domestic authority obliged to refer cases to the ECJ for a preliminary ruling and that the provisions in question neither contravened the Austrian Constitution nor EU legislation since his children lived in Turkey, which was not a member State of the European Union.
13. In another set of proceedings the IFP on 22 March 2004 dismissed the applicant ’ s appeal concerning the alleged failure to pay him tax credits for maintenance payments for the years 1999, 2000 and 2001. It held that generally such payments were not possible under Austrian law if the children were over the age of majority and were not in receipt of family allowance.
14. On an unspecified date the applicant lodged a second complaint with the Constitutional Court against this decision and made a further claim for legal aid.
15. On 4 October 2004 the Constitutional Court declined to deal with the applicant ’ s second complaint, finding that it had no prospect of success. It again refused to grant him legal aid.
16. The applicant requested that the case be remitted to the Administrative Court. The Constitutional Court agreed to do so and thereupon the Administrative Court joined both sets of proceedings.
17. On 10 August 2005 the Administrative Court, referring to both its own and the Constitutional Court ’ s case-law, dismissed both complaints. It found that the legislation that had been in force since 1 January 2001, which prevented persons from receiving family allowances for children over the age of majority living abroad, was lawful. It referred to the constitutional provision that prevented the payment of tax credits for maintenance payments in respect of children for whom no family allowance could be received. It further held that since the provisions concerning family allowance were equally applicable to Austrian nationals and foreigners there was no discrimination. Lastly, it found that there was no legal basis on which to refer the case to the ECJ for a preliminary ruling without giving detailed reasons for such a request. Since there was no appearance of a violation of a right of the applicant, no oral hearing was necessary. That decision was served on the applicant ’ s counsel on 2 September 2005.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. The Family Burden Equalisation Act
18. Section 2 of the Family Burden Equalisation Act 1967 ( Familien ­ lastenausgleichsgesetz ), in so far as relevant reads as follows:
“(1) Those persons who have their permanent or habitual residence on federal territory, are entitled to receive family allowance
a) for children below the age of majority;
b ) for children over the age of majority who have not reached the age of twenty-six and who are receiving occupational training or further training connected to their occupation at a vocational school, if their attendance prevents them from practising their occupation.. In the case of children over the age of majority attending one of the institutions listed in section 3 of the 1992 Study Promotion Act ( Federal Law Gazette no. 305 ) vocational training may only be accepted if the envisaged study period per study unit is exceeded by no more than one semester or the envisaged training period by no more than one year of training. If a study unit is completed during the envisaged study period, one semester may be added on to a subsequent study unit ...
d) for children over the age of majority, who have not reached the age of twenty-six, for a period of three months after completion of their vocational training, provided that they are not carrying out their military service or training, or alternative civilian service;
(2) The person to whose household the child belongs is entitled to receive family allowance for a child, as provided for in subsection ( 1 ) above. A person to whose household a child does not belong, but who pays the majority of the cost of maintaining the child, is entitled to family allowance if no other person is entitled to the allowance pursuant to the first sentence of the present subsection.
(5) A child belongs to ta person ’ s household if he or she shares an address with that person and there is common housekeeping. Belonging to a household is not deemed to have been discontinued if
( a) the child in question is away from the shared accommodation for only a temporary period;
( b) for the purpose of vocational training the child is required to live in secondary accommodation at the place or near the place where he or she receives vocational training;
c) the child is undergoing institutional care, either permanently or temporarily, owing to a disease or disability, if the person pays maintenance at least equivalent to the amount of family allowance payable for one child; in the event of a child with a major disability, this amount shall be increased by the additional amount payable for a child with a major disability ( section 8(4)).
(8) Persons are only entitled to family allowance if the centre of their main interests is on federal territory. A person has the centre of his or her main interests in the country in which he or she maintains his or her closest personal and economic relations.”
19. Section 5 (4) of the Family Burden Equalisation Act 1967, in its version of 1 2 July 197 4 (Federal Law Gazette no. 418/1974), read as follows:
“There is no entitlement to family allowance in respect of children who have their permanent residence abroad, unless there is reciprocity by way of State treaties .”
20. Section 5 ( 4 ) of the Family Burden Equalisation Act was amended on 30 April 1996 (Federal Law Gazette no. 201/1996) and now reads as follows:
“There is no entitlement to family allowance in respect of children who have their permanent residence abroad.”
21. Section 34 ( 5 ) of the Income Tax Act ( Einkommensteuergesetz ) ( Federal Law Gazette Part I no. 201/1996 ), which entered into force in 1996 and which deals with tax rates and tax deductions, reads as follows:
“ (Constitutional provision) Maintenance payments to children over the age of majority, in respect of whom family allowance is not payable shall not be taken into account for the purposes of tax credits in respect of childcare or maintenance payments, or as an extraordinary burden, other than in the cases and to the extent provided for in point ( 4 ) above .”
C. The Agreement between Austria and Turkey on Social Security
22. In 1985 the Social Security Agreement between Austria and Turkey ( Federal Law Gazette no. 91/1985 ) was concluded. Chapter 4, Article 26(1) provided as follows :
“Persons in paid employment in one Contracting State shall be entitled under that State ’ s legislation to receive family allowance, including for children who are permanently resident in the other Contracting State .”
23. With effect from 30 September 1996 Austria terminated the Social Security Agreement with Turkey (Federal Law Gazette no. 349/1996).
24. Article 12 of the European Social Charter (Revised), of 3 May 1996, CETS No. 173, reads as follows in so far as relevant:
“ With a view to ensuring the effective exercise of the right to social security, the Parties undertake:
4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure:
(a) equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties ... ”
25. The European Committee of Social Rights, in its Conclusions concerning Article 12 of the Charter in respect of Austria (18th report, reference period 2003-2004; Conclusions XVIII-1), stated as follows:
“ As regards the payment of family benefits, the Committee considers that according to Article 12 § 4, any child resident in a State Party is entitled to the payment of family benefits on an equal footing with nationals of the State concerned. Therefore, whoever is the beneficiary under the social security system, i.e. whether it is the worker or the child, State Parties are under the obligation to secure through unilateral measures the actual payment of family benefits to all children residing on their territory. In other words, imposing an obligation of residence of the child concerned on the territory of the State is compatible with Article 12 § 4 and its Appendix. However since not all countries apply such a system, States applying the ‘ child residence requirement ’ are under the obligation, in order to secure equal treatment within the meaning of Article 12 § 4, to conclude within a reasonable period of time bilateral or multilateral agreements with those States which apply a different entitlement principle. The Committee therefore asks the next report to indicate whether such agreements exist with the following countries: Albania, Armenia, Georgia and Turkey, or, if not, whether it is envisaged to conclude them and in what time delay.
The Committee asks for whether a length of residence or employment requirement is imposed on non-EU/EEA nationals of States Parties to the 1961 Charter or the revised Charter for receipt of any of the non-employment related social security benefits. As regards family benefits, the Committee refers to its conclusion under Article 16 in this volume. The Committee recalls that in its previous conclusion (Conclusion XVII-1, p. 36) it found the situation in conformity as regards retention of accrued benefits also for nationals of other States Parties which are currently uncovered by any agreement. Such countries are currently Albania, Andorra, Armenia, Azerbaijan, Georgia and Moldova. The Committee asks confirmation of whether the principle of retention of benefits applies to nationals of all these countries.
The Committee concludes that the situation in Austria is in conformity with Article 12 § 4 of the Charter. ”
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
26. The applicant complained that the refusal to grant him family allowance after 1996 and to pay him tax credits for maintenance payments because his children were not resident in Austria constituted discrimination prohibited by the Convention. He relied on Article 14 read in conjunction with Article 1 of Protocol No. 1, which read as follows :
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
27. The Government contested that argument.
28. The Government submitted that in their view the application had been lodged outside the six-month time-limit, since from the documents transmitted to them it could not be ascertained when the application had actually been posted.
29. This was disputed by the applicant, who submitted that he had complied with the time-limit for lodging the application.
30. The Court observes that the Administrative Court gave its decision in the present case on 10 August 2005 and it was served on the applicant ’ s counsel on 2 September 200 5. According to the postage stamp on the envelope containing the applicant ’ s application to the Court, the letter was posted on 2 March 200 6. The six-month time-limit laid down by Article 35 § 1 of the Convention expired on that precise date at midnight (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 44 and § 60, 29 June 2012 ).
31. The Court therefore rejects the Government ’ s argument that the applicant did not comply with the six-month time-limit.
32. The Court further notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
33. The applicant submitted that while he had been entitled to family allowance for his two children until 1996 and had the possibility of claiming tax credits for maintenance payments, the Austrian authorities had refused to grant him this benefit when he had made his claim in 2002. They had taken the view that he was no longer entitled to these benefits because Austria had, with effect from September 1996, terminated the Social Security Agreement with Turkey that had been the basis for his claim for family allowance. The termination of the agreement was clearly against the spirit of Article 12 § 4 of the European Social Charter. Moreover, Austria had not terminated the agreement in compliance with the relevant provisions and therefore, the refusal to grant family allowance to the applicant was unlawful.
34. The result of the termination of the agreement was that in order to be entitled to family allowance children now had to be resident in Austria. However, at the time he had settled there it had been very difficult and almost impossible to achieve family reunification. Before 1993 one of the conditions for family reunification was that the family member working in Austria had to show that he or she had adequate financial means for supporting the other members of the family. It was only after 1993 that Austrian law had allowed family reunification based on a quota system. He therefore accepted that his children had to remain in Turkey and trusted that during this time he would be entitled to family allowance in Austria.
35. However, since his claim for family allowance had been refused on the basis of the country of residence of his children, he submitted that he was a victim of discrimination in contravention of Article 14 of the Convention.
36. The Government argued that the alleged difference in treatment as regards entitlement to family allowance related only to the country of residence of the children and not their nationality, as children with Austrian citizenship living abroad were also excluded from receiving it. The decision of the Austrian legislature to abolish family allowance in respect of children living abroad and, as in the present case, children over the age of majority living abroad, was a question of economic and social policy, about which Contracting States had a wide margin of appreciation.
37. Family allowance, a financial benefit the Austrian State granted as a means of supporting parents in caring for their children, was intended to establish certain minimum standards of living for all children resident in Austria irrespective of the household in which they lived. Parents were therefore encouraged to care for the next generation. Family allowance was part of Austria ’ s population policy, whereby measures were taken aimed at sharing the burden between families within the Austrian population. Therefore they were made dependent on the children ’ s close relationship with Austria, whereas children who permanently lived abroad did not as a rule have such a close link and their support would have little domestic impact in the future on the so-called “intergenerational contract”. The criterion of children having to be permanently resident in Austria to be entitled to family allowance was therefore appropriate to honour such a contract. Since no minimum length of stay in Austria was required by the children in order for the parent to receive family allowance payments, the measure was not disproportionate to the aim pursued.
38. Moreover, granting family allowances of the same amount to children living in and outside Austria was not a just and appropriate means for establishing certain minimum living standards for all children as living costs between various States were likely to differ considerably.
39. For these reasons, and taking into account that the financial means available for this population measure were not unlimited, the Austrian legislature had decided in 1996 to modify the conditions for family allowance by terminating the social security agreements it had previously concluded with several countries. Thus, the measure complained of had been reasonably justified and did not discriminate against the applicant.
( c ) The third - party submissions by the Turkish Government
40. The Turkish Government submitted that when Austria had abolished family allowances in 1996 for children who were not resident in Austria, this had had an impact on numerous Turkish migrant workers residing in Austria who no longer received this benefit. The abolition had concerned only Turkish migrant workers and not citizens of other Contracting States to the European Social Charter and was therefore in breach of Article 1 of Protocol No. 1 to the Convention. In this connection it had to be stressed that the European Court of Human Rights in its case-law put particular emphasis on the equal treatment of Austrian citizens and foreigners.
41. Moreover, abolishing family allowances for children who were not resident in Austria was against the spirit of Article 12 § 4 (a) of the European Social Charter, which required Contracting States to undertake to take steps in order to ensure equal treatment of their own nationals and the nationals of other parties as regards social security rights. It had also been the settled practice of the European Committee of Social Rights until 2006 that family allowances had to be granted to all workers without discrimination. In 2006 the Committee had reversed its settled practice, when it found that the requirement for a child to be resident in a particular country in order to be entitled to social security payments was a valid criterion. This was regrettable, as it not only had a negative impact on citizens from other countries living in Austria but also on people with Austrian citizenship whose children were living abroad.
42. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997 ‑ I, and Petrovic v. Austria, 27 March 1998, § 22, Reports 1998 ‑ II ).
43. The Court has also held that not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory ( see Ünal Tekeli v. Turkey, no. 29865/96, § 49, ECHR 2004 ‑ X ). A difference in treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference in treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, for example, Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008; Petrovic, cited above, § 30, and Lithgow and Others v. the United Kingdom, 8 July 1986, § 177, Series A no. 102 ).
44. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment ( see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996 ‑ IV ). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87, and Inze v. Austria, 28 October 1987, § 41, Series A no. 126 ), but the final decision as to observance of the Convention ’ s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must, however, have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Ünal Tekeli, cited above, § 54, and, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002 ‑ IV).
45. Lastly, since the applicants complained of inequalities in the welfare system, the Court underlines that Article 1 of Protocol No. 1 does not include a right to acquire property. It places no restriction on the Contracting States ’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006 ‑ VI ).
46. As regards the applicability to the present case of Article 14 read in conjunction with Article 1 of Protocol No. 1, the Court observes that in the case of Carson and Others v. the United Kingdom ( [GC], no. 42184/05, ECHR 2010 ) it found that although there was no obligation on a State under Article 1 of Protocol No. 1 to create a welfare or pension scheme, if a State did decide to enact legislation providing for the payment of a welfare benefit or pension as of right ‒ whether conditional or not on previous contributions ‒ that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ( ibid., § 64 ).
47. In the present case the Austrian legislature had created and modified, as part of its social security and benefits system, a claim for family allowance, thus voluntarily deciding to provide for an additional right falling within the general scope of Article 1 of Protocol No. 1. The facts of the present case therefore fall within the scope of this provision.
48. The Court further points out that the “country of residence” of the applicant ’ s children was the essential ground on which the applicant ’ s claim for family allowance had been dismissed. Applied as a criterion for the differential treatment of citizens, it constitutes an aspect of personal status for the purposes of Article 14 ( ibid., § 71).
49. The Court therefore concludes that Article 14 read in conjunction with Article 1 of Protocol No. 1 is applicable.
50. As noted in paragraph 43 above, the Court has established in its case-law that, in order for an issue to arise under Article 14, the first condition is that there must be a difference in the treatment of persons in relevantly similar situations. While the applicant claims that he is in a relevantly similar situation to a person working in Austria whose child resides in that country, this is disputed by the Government. In this connection the applicant put much emphasis on the fact that until Austria terminated the social security agreement with Turkey in 1996, family allowance had been awarded to Turkish citizens living in Austria by virtue of that treaty.
51. The Court is not persuaded by the applicant ’ s argument. In this respect it reiterates its findings in the case of Carson and Others (cited above, § 88):
“States clearly have a right under international law to conclude bilateral social security treaties and indeed this is the preferred method used by the Member States of the Council of Europe to secure reciprocity of welfare benefits (see paragraphs 50-51 above). Such treaties are entered into on the basis of judgments by both parties as to their respective interests and may depend on various factors, among them the numbers of people moving from one country to the other, the benefits available under the other country ’ s welfare scheme, how far reciprocity is possible and the extent to which the advantages to be gained by an agreement outweigh the additional expenditure likely to be incurred by each State in negotiating and implementing it (see paragraph 44 above). Where an agreement is in place, the flow of funds may differ depending on the level of each country ’ s benefits and the number of people going in each direction. It is the inevitable result of such a process that different conditions apply in each country depending on whether or not a treaty has been concluded and on what terms.”
52. On the other hand the Court takes note of the reasons given by the Government for explaining the fundamental difference between these two positions, namely that family allowance was granted by the Austrian State with the intention to establish certain minimum standards of living for all children living in Austria. Moreover, family allowance, as a measure forming part of Austria ’ s population policy, was granted with the aim of sharing the burden between families within the population as an investment in future generations in the context of the “intergenerational contract” to which children living outside the country would as a rule not contribute in the future, given that they had a less strong link to the country. The Court concludes that the social security system in Austria was therefore primarily designed to cater for the needs of the resident population and that it was therefore hard to draw any genuine comparison with the position of those who based their claim on persons resident elsewhere ( ibid., § 86).
53. In summary, therefore, the Court does not consider that the applicant, whose children over the age of majority lived outside Austria, was in a relevantly similar position to persons claiming family allowance for children living in Austria. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No.1.
II. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION