Unjustified Pricing of the Vienna Semester Ticket Based on Residence

Dec 16, 2022 Benn-Ibler Rechtsanwälte GmbH

Recently, the Vienna Regional Court for Civil Matters ruled that differing pricing for public transport tickets solely based on customers' main place of residence is contrary to the principle of equal treatment.

The defendant (and appellant) runs a well-known transport company in Vienna. This company offers different tickets at different prices under its transport contracts, including a discounted ticket for students which is valid for one semester. However, different prices for this ticket are charged depending on the ticket buyer’s place of residence, so that for students who do not live in Vienna the ticket price is EUR 150.00, while students whose main place of residence is in Vienna only pay EUR 75.00. The plaintiff has had claims assigned by several students, arguing that with reference to Art 7 of the Austrian Federal Constitutional Law (Bundes-Verfassungsgesetz, B-VG), Art 18 of the Treaty on the Functioning of the European Union (TFEU) as well as Sections 31 ff of the Austrian Equal Treatment Act (Gleichbehandlungsgesetz, hereinafter GlBG), a pricing system based on place of residence constitutes indirect discrimination and partial invalidity of the transport contracts.

The court of first instance found in favour of the plaintiff. The court did not accept the defendant's argument that claims under the GlBG are highly personal and therefore not assignable. Rather, it held that the neutral criterion of an individual’s main place of residence was apt to be discriminatory.

The court of appeal ruled as follows:

The applicant’s appeal cannot be upheld. Section 31 (4) GlBG provides that unequal treatment based on nationality is not prohibited. However, unequal treatment needs to be objectively justified. According to the appellant, the tariff provision for students in question is based on objective considerations. The intention is to support groups of people who have their main place of residence in the area where this service is provided. Indeed, anyone can move their main place of residence to Vienna. The Court of Appeal made reference to a decision of the European Court of Justice (ECJ), in which the issue of entitlement to discounted student tickets was linked to the receipt of Austrian Family Allowance, which was considered unequal treatment. The appellant's pointing to the subsidisation of student tickets by the Province of Lower Austria also has no bearing, as the purpose of providing social benefits is not to favour those who cause a disadvantage.

LG ZRS Wien 36 R 45/22t (30 August 22)