Austria - Constitutional Court, 22 September 2008, B753/08

Country of Decision:
Country of Applicant:
Date of Decision:
22-09-2008
Citation:
VfGH 22.09.2008, B753/08
Additional Citation:
VfSlg. 18.525/2008
Court Name:
Constitutional Court
National / Other Legislative Provisions:
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 64 Abs 2
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 73
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 144
Austria - oberösterreichisches Grundversorgungsgesetz (Upper Austria Primary Care Law) - § 4
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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

Case Law Cited: 

Austria - Constitutional Court, 11 June 2008, B2024/07