OGH: Can Party Membership Cause Discrimination?

Jan 20, 2023 Benn-Ibler Rechtsanwälte

For the very first time, the Austrian Supreme Court (Oberster Gerichtshof) has ruled on whether membership in a political party can constitute discrimination based on personal worldview.

In the original case, the plaintiff had applied for the position of vice rector at a teacher training college and was ranked as the most suitable candidate by the University Council. The defendant Austrian Federal Ministry of Education, Science and Research subsequently commissioned an external expert opinion, which recommended the second-ranked candidate. The federal minister then gave preference to this candidate. The plaintiff is a member of the SPÖ (Social Democratic Party of Austria) and also holds political office there. Consequently, he claimed to have been discriminated against on the basis of his worldview under Section 13 (1) of the Austrian Federal Equal Treatment Act (Bundes-Gleichbehandlungsgesetz, B-GlBG)) and sought damages.

The lower courts disagreed on whether party membership can constitute grounds for discrimination.

First, the Austrian Supreme Court, referring to the European Court of Justice’s case law on the EU’s Equal Treatment Directive, stated that the reasons for discrimination on the grounds of ‘religion’ and ‘belief’ are two manifestations of the same grounds for discrimination. They need to be distinguished from ‘political or other opinion’ (Art 21(1) Charter of Fundamental Rights) – grounds for discrimination not included in the Equal Treatment Directive and the B-GlBG. However, a person’s political opinion can constitute a worldview if it involves a certain degree of commitment, wholeheartedness, as well as a sense of importance of one’s conviction. It must also be a person’s comprehensive guiding view of life and the world as a whole, and stably held by a majority of persons.

Party membership can be an expression of such a worldview, but does not necessarily establish such a view (for example as would party membership for reasons of family tradition). By contrast, a person's general political opinion regarding particular issues or matters does not constitute a worldview.

OGH 9 ObA 59/22z (06.12.2022)