In the case of Efe v. Austria,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 4 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
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.
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.
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.
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).
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)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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.
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.
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.
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.
On 24 May 2004 the Independent
Financial Panel (Unabhängiger Finanzsenat - “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.
. 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.
. 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.
. 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.
. 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.
. 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.
. 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.
. 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
Section 2 of the Family Burden Equalisation
Act 1967 (Familienlastenausgleichsgesetz), 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.”
Section 5(4) of the Family Burden Equalisation
Act 1967, in its version of 12 July 1974 (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.”
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.”
B. Income Tax Act
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
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.”
With effect from 30 September 1996 Austria terminated the Social Security Agreement with Turkey (Federal Law Gazette no. 349/1996).
D. The European Social Charter
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 ...”
. 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
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:
Article
14
“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.”
Article 1
of Protocol No. 1
“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.”
The Government contested that argument.
A. Admissibility
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.
This was disputed by the applicant, who
submitted that he had complied with the time-limit for lodging the application.
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 2005. According to the postage stamp on the envelope containing the
applicant’s application to the Court, the letter was posted on 2 March 2006.
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).
The Court therefore rejects the Government’s
argument that the applicant did not comply with the six-month time-limit.
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.
B. Merits
1. The parties’ submissions
(a) The applicant
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.
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.
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.
(b) The Government
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.
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.
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.
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
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.
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.
2. The Court’s assessment
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).
. 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).
. 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).
. 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).
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 ).
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.
. 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).
The Court therefore concludes that Article 14
read in conjunction with Article 1 of Protocol No. 1 is applicable.
. 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.
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.”
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).
. 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
The applicant also complained that the refusal
to grant him family allowance after 1996 and to pay him tax credits in respect
of his maintenance payments because his children were not resident in Austria was
in breach of Article 14 read in conjunction with Article 8 of the Convention.
Article 8 reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
The Court considers, however, that, although this
complaint is admissible, in view of its findings under Article 14 of the Convention
read in conjunction with Article 1 of Protocol No. 1 there is no need to also
examine the complaint from the point of view of Article 14 in conjunction with
Article 8 of the Convention.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 13 of the
Convention that the relevant provisions preventing him from being paid tax
credits in respect of maintenance payments had constitutional status and were therefore
excluded from the review of the Constitutional Court. He made a further
complaint under Article 6 that there had been no oral hearing before the
domestic authorities and that the Austrian courts, despite there being fundamental
questions concerning EU law, had not complied with their obligation to refer
the case to the ECJ.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the
refusal to grant him family allowance after 1996 and to pay him tax credits in
respect of child maintenance payments because his children were not resident in
Austria admissible, and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 14 read in conjunction with Article 1 of Protocol No. 1;
3. Holds that there is no need to examine separately
the complaint under Article 14 read in conjunction with Article 8 of the
Convention.
Done in English, and notified in writing on 8 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
