Ex-post control 3.1.3 Discrimination on the grounds of nationality or ethnicity Discrimination against individuals entitled to subsidiary security regarding care allowances Since the Act to Reform Care Allowances (Bundespflegegeldgesetz) in 2012, individuals entitled to subsidiary security, who received basic care, were no longer paid a care allowance. The AOB criticised this course of action as contrary to European law. The Federal Ministry of Labour, Social Affairs and Consumer Protection now concurs with this legal interpretation. Based on previous regional care allowance acts, individuals entitled to subsidiary security were able to claim a care allowance for the duration of their residence permit. In 2012, these regional care allowance acts were replaced by the Federal Act to Reform Care Allowances (Bundespflegegeldgesetz), which does not explicitly refer to individuals entitled to subsidiary care allowances as entitled to claim the allowance. Since then, the responsible Austrian Pension Agency has been rejecting applications for care allowances by individuals entitled to subsidiary security, who receive basic care. Equal treatment in respect of core benefits is an EU requirement This is contrary to applicable European law provisions, as demonstrated by the AOB. According to Section 28 of the EU Directive 2004/83/EC, member states are obligated to at least grant those core social benefits to individuals entitled to subsidiary security as are received by their own citizens. According to Recital No. 34 of the Directive, these core benefits include, for example, sickness benefits, and hence also the care allowance, because the European Court of Justice classes the Austrian care allowance as a benefit paid in the case of sickness (see also Greifeneder/Liebhart, Pflegegeld, 2013, marginal note 114; Peyrl, Der Anspruch von Subsidiär Schutzberechtigten auf Pflegegeld, ÖZPR 2013/77). The same can be said of the new EU Directive 2011/95/EU. The Federal Ministry of Labour, Social Affairs and Consumer Protection now agrees with the AOB’s legal interpretation and has amended its take on Section 3a (2) Z 1 Federal Act to Reform Care Allowances (Bundespflegegeldgesetz). Individuals entitled to subsidiary security can now also claim the care allowance if the other conditions are met - irrespective of whether they receive basic care or not. A consideration of the new Directive 2011/95/EU, which replaces the previous 2004/83/EC, also leads to this result. Individual case: VA-BD-SV/0643-A/1/2013 36