Austrian Disability Pension: Rigorous Criteria Governing Hardship Provisions

Feb 12, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) examined the criteria governing the application of hardship provisions to disability pensions. In particular, the court addressed the issue of whether brief periods of employment constitute an interruption in the mandatory continuous registration as unemployed.

The claimant in the case at hand had applied for a disability pension on the grounds of significant health issues, with particular emphasis on severe depression. The pension insurance institution denied the application. The court of first instance subsequently dismissed the claim for a pension but granted the claimant access to medical rehabilitation and a rehabilitation allowance. This decision was based on the fact that the claimant had been registered as unemployed for twelve consecutive months, in accordance with Section 255(3a) of the Austrian General Social Security Act (Allgemeines Sozialversicherungsgesetz, hereinafter ASVG).

The court of appeal determined that the plaintiff had worked for several days in January 2024, and therefore rejected the claim.

The OGH upheld this decision, providing clarification that the hardship clause under Section 255(3a)(2) of the ASVG stipulates that an insured individual must have been registered as unemployed for a minimum of twelve consecutive months immediately preceding the relevant reference date. Mere factual unemployment does not satisfy this requirement. Pursuant to Section 12(3) of the ASVG, individuals engaged in a valid employment relationship are not legally classified as unemployed.

The court emphasized that the law’s explicit wording outweighs any implied leniency in legislative materials. The law not only requires unemployment but also mandates uninterrupted formal registration as unemployed.

There is no exception for short-term employment: Even short-term employment, or employment described as a ‘failed placement attempt’, interrupts the unemployment registration. The decisive factor is that an employment relationship was established. No unemployment registration can exist for the duration of this relationship, even if it only lasted a few days.

The OGH rejected a teleological reduction of the law’s clear wording. The hardship provision is deliberately narrowly defined in order to limit the circle of eligible persons and cover only those whose employment prospects are demonstrably low for health reasons.

OGH 10 ObS 140/25y (13 January 2026)