BVwG has legal provision in HGG examined by the VfGH

Jan 14, 2022 Benn-Ibler Rechtsanwälte

The Federal Administrative Court (Bundesverwaltungsgericht, BVwG) considers Section 31 para 2 no 2 of the Army Fees Act (Heeresgebührengesetz, HGG 2001), which regulates eligibility for housing subsidies, to violate the principle of equality. The BVwG therefore applied to the Constitutional Court (Verfassungsgerichtshof, VfGH) for its review.

Sec. 31 para 2 no 2 of the HGG does not cover subtenants in shared flats; the BVwG therefore requests that the wording "as owner or co-owner or main tenant" (“Eigentümer oder Miteigentümer oder Hauptmieter”) or the whole of number 2 be repealed as unconstitutional. By reference, this provision also applies to civil servants.

The impetus for the application to the VfGH for a review of the law was the complaint of a recruit for military service. The complainant is an Austrian citizen who grew up in Iran and came to Austria three years ago. He has modest savings and is dependent on the room in the shared flat. His application for a housing subsidy was rejected by decision of the Army Personnel Office (Heerespersonalamt). The reason for the rejection was that he did not have his "own flat" as defined in Sec. 31 para 2 no 1 HGG.

Sec. 31 HGG 2001 regulates who is entitled to financial assistance in maintaining their own home during military service. Eligible persons are those who run an independent household or occupy premises as owner or co-owner or main tenant, with other persons contributing to the household expenses.

In its application to the VfGH for a review of the law, the BVwG states that the exclusion of subtenants as eligible persons could not have been intended by the legislator, because in practice subtenancy is the most common form. The legislator had wanted to include all those who, due to their living circumstances, could not afford their own flat and who were at risk of losing their accommodation during their military service. This was also the case with subtenants and their exclusion was therefore not objectively justified.

The BVwG therefore requested that the above-mentioned wording be deleted from the law. Should the VfGH not consider this permissible, it was requested that the entirety of number 2 be deleted and the legislator be instructed to draft a new version that takes account of the principle of equality.

BVwG W208 2243953-1/4Z (27.10.2021)