From the very beginning, a broad interpretation has been given to the meaning of property. This broad interpretation has evolved gradually. A broad interpretation has many implications: may a government limit property enjoyment by raising taxes? How do you deal with obligatory contributions? The ECHR and IACHR give some indications of the problems. The ECHR explicitly allows for taxes, contributions and penalties. The IACHR prohibits usury and obliges states to prohibit the exploitation of man.

In this respect, the following case, Gaygusuz v. Austria , represented a major development, the European Court having found that social security entitlements could, under certain conditions, be brought under the protection of Article 1 Protocol No. 1 of the European Convention  . The applicant applied for an advance on his pension in the form of an emergency payment under the Unemployment Insurance Act. The Linz Labour Office and the Upper Austria Regional Labour Office rejected the application on the ground that the applicant failed to fulfil the requirement under which only Austrian citizens were entitled to this type of payment. The applicant then applied to the Constitutional Court, which declined to deal with the application, on the grounds that it did not have sufficient prospects of success and that the case did not lie outside the jurisdiction of the Administrative Court. The Administrative Court, to which the case had been referred, dismissed the application on the ground that decisions concerning the constitutionality of statute law lay within the jurisdiction of the Constitutional Court.

Gaygusuz v. Austria

European Court of Human Rights

Application No. 17371/90

Judgement of 16 September 1996

Keywords: social security – entitlement - nationality

[?]

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)

33. Mr Gaygusuz complained of the Austrian authorities’ refusal to grant him emergency assistance on the ground that he did not have Austrian nationality, which was one of the conditions laid down in section 33 (2) (a) of the 1977 Unemployment Insurance Act [?] for entitlement to an allowance of that type. He claimed to be a victim of discrimination based on national origin, contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 [?], [?]

34. The Commission and the Turkish Government agreed with this argument, whereas the Austrian Government rejected it.

35. The Court must first rule on the applicability of these two Articles taken in conjunction (art. 14+P1-1).

A. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1

36. According to the Court’s established case-law, Article 14 of the Convention [?] complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 [?] does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of them [?].

37. The applicant and the Turkish Government argued that Article 14 of the Convention was applicable in conjunction with Article 1 of Protocol No. 1 [?]. They referred to the reasoning of the Commission, which found that the award of emergency assistance was linked to the payment of contributions to the unemployment insurance fund.

38. The Austrian Government, however, submitted that emergency assistance did not come within the scope of Article 1 of Protocol No. 1 [?]. Entitlement thereto did not result automatically from the payment of contributions to the unemployment insurance fund. It was an emergency payment granted by the State to people in need. Consequently, Article 14 of the Convention [?] was not applicable either.

39. The Court notes that at the material time emergency assistance was granted to persons who had exhausted their entitlement to unemployment benefit and satisfied the other statutory conditions laid down in section 33 of the 1977 Unemployment Insurance Act [?].

Entitlement to this social benefit is therefore linked to the payment of contributions to the unemployment insurance fund, which is a precondition for the payment of unemployment benefit [?]. It follows that there is no entitlement to emergency assistance where such contributions have not been made.

40. In the instant case it has not been argued that the applicant did not satisfy that condition; the refusal to grant him emergency assistance was based exclusively on the finding that he did not have Austrian nationality and did not fall into any of the categories exempted from that condition [?].

41. The Court considers that the right to emergency assistance - in so far as provided for in the applicable legislation - is a pecuniary right for the purposes of Article 1 of Protocol No. 1 [?]. That provision [?] is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pay “taxes or other contributions”.

Accordingly, as the applicant was denied emergency assistance on a ground of distinction covered by Article 14 [?], namely his nationality, that provision (art. 14) is also applicable [?].

B. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1)

42. According to the Court’s case-law, a difference of treatment is discriminatory, for the purposes of Article 14 [?], if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.

43. The applicant maintained that the difference in treatment between Austrians and non-Austrians under section 33 (2) (a) of the 1977 Unemployment Insurance Act as regards entitlement to emergency assistance was not based on any objective and reasonable justification. He had paid contributions to the unemployment insurance fund on the same basis as Austrian employees.

[?]

45. The Austrian Government submitted that the statutory provision in question was not discriminatory. They argued that the difference in treatment was based on the idea that the State has special responsibility for its own nationals and must take care of them and provide for their essential needs. Moreover, sections 33 and 34 of the Unemployment Insurance Act laid down certain exceptions to the nationality condition. Lastly, at the material time, Austria was not bound by any contractual obligation to grant emergency assistance to Turkish nationals.

46. The Court notes in the first place that Mr Gaygusuz was legally resident in Austria and worked there at certain times [?], paying contributions to the unemployment insurance fund in the same capacity and on the same basis as Austrian nationals.

47. It observes that the authorities’ refusal to grant him emergency assistance was based exclusively on the fact that he did not have Austrian nationality as required by section 33 (2) (a) of the 1977 Unemployment Insurance Act [?].

48. In addition, it has not been argued that the applicant failed to satisfy the other statutory conditions for the award of the social benefit in question. He was accordingly in a like situation to Austrian nationals as regards his entitlement thereto.

49. Admittedly, sections 33 and 34 of the 1977 Unemployment Insurance Act [?] lay down certain exceptions to the nationality condition, but the applicant did not fall into any of the relevant categories.

50. The Court therefore finds the arguments put forward by the Austrian Government unpersuasive. It considers [?] that the difference in treatment between Austrians and non-Austrians as regards entitlement to emergency assistance, of which Mr Gaygusuz was a victim, is not based on any “objective and reasonable justification”.

51. Even though, at the material time, Austria was not bound by reciprocal agreements with Turkey, it undertook, when ratifying the Convention, to secure “to everyone within [its] jurisdiction” the rights and freedoms defined in section I of the Convention.

52. There has accordingly been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 [?].

[?]

FOR THESE REASONS, THE COURT

1. Holds unanimously that Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 [?] is applicable in the case;

2. Holds unanimously that there has been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 [?];

Comment

The European Court of Human Rights found that Austria had violated the right to non-discrimination in conjunction with the right to property of the European Convention of Human Rights when it refused to pay unemployment benefits to the applicant solely on the basis of his nationality. The case is one of several which show how, via the right to property, the right to non-discrimination or the rights to due process, entitlements can be claimed. That is important for the security of individuals in modern social-democracies in which social security entitlement constitute for many an often crucial component of their daily income.

Selected additional cases: ECHR: Jokela v. Finland , Application No. 28856/95, Judgement of 21 May 2002; Dangeville v. France , Application No. 36677/97, Judgement of 16 April 2002;Schuler-Zgraggen v. Switzerland  , Application No. 14518/89, Judgement of 24 June 1993.

Several cases have raised the question whether licences of various kinds constituted possessions under Article 1 Protocol 1. According to the European Court, the answer depends, inter alia, on the question whether the licence could be considered as creating for the licence-holder a reasonable and legitimate expectation as to the lasting nature of the licence and the possibility of continuing to draw benefits from the exercise of the licensed activity. In the case of Tre Traktörer Aktiebolag v. Sweden   (Application No. 10873/84, Judgement of 7 July 1989) the complaint concerned the withdrawal of a licence to serve alcoholic beverages granted to the applicant company’s restaurant. In this case, the licence was granted subject to several conditions allowing for its possible revocation. The European Court declared Article 1 Protocol 1 applicable, but found that the withdrawal of the licence did not amount to a deprivation of property, because it was withdrawn in pursuit of the general interest and because there was no disproportionality between the control of the economic interest of the applicant company and the general interest of society. There was thus no violation of Article 1 Protocol 1.

In Van Marle et al. v. The Netherlands , (Application No. 8543/79, Judgement of 26 June 1986), the Court stated that ‘goodwill’ in certain circumstances may be likened to the right of property embodied in Article 1 Protocol 1:[B]y dint of their own work, the applicants had built up a clientele; this had in many respects the nature of a private right and constituted an asset and, hence, a possession within the meaning of Article 1.