Fundamental Rights Section
plies are subject to the same obligations and enjoy the same benefits under the legislation
of any Member State as the nationals of that State. This prohibition of discrimination applies
in particular to family benefits.
In the course of the investigation procedure of the Ombudsman Board, the competent
Bundesministerin für Soziale Sicherheit, Generationen und Konsumentenschutz (Federal
Minister of Social Security, Generations and Consumer Protection) justified the several
short periods for which family allowance was granted in one case as follows: 'With respect
to the circumstances of the case (entry of the child's mother in August 1999, birth of the
child in April 2000), links of the child's mother with the original family broken due to the big
distance between Austria and Colombia, adjustment to a totally different cultural environment) it could not be excluded beforehand that Ms … - albeit not definitely - leaves the
country and returns to her family.'
In the Ombudsman Board's view, this explanation can by no means justify the limitation of
the claim to family allowance, since it is based on mere speculations which do not justify a
difference in treatment between foreign and Austrian recipients of family allowance. There
are and there were no circumstances indicating that the family would leave Austria and the
conditions for the receipt of family allowance be lifted. The second complaint concerned
parents who were both Italian citizens and therefore also citizens of the European Union
and who had been living in Austria without interruption for 19 and 15 years, respectively.
Their residence is clearly 'consolidated' and does not justify any difference in treatment
compared with Austrian recipients of family allowance.
Only if there are objective grounds which indicate that it is much more likely that the conditions for receiving family allowance are lifted – e.g. in the case of a temporary residence
permit for Austria – a limitation would be objectively justified. Discretionary or too tight review periods set by the competent authority in respect of family allowances must therefore
be considered as arbitrary; they infringe the right to equal treatment of foreign recipients of
family allowance under Austrian constitutional and, in the case of citizens of the European
Union, also under European Community law.
In its meeting of October 13, 2006, the Ombudsman Board therefore agreed by unanimity
that the limitations of the claims to family allowance represent grievances in the administration of public affairs in both cases. The uncontested statement of the competent secretary of the tax authority that there is no law prohibiting the authority to require non-Austrian
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