Chapter VIII. Decisions of national tribunals

• Pages: 371-372

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ChapterVIII

DECISIONS OF NATIONA LTRIBUNALS

Austria

Austrian Supreme Cour t, Decision of 23 April 2014, 10ObS40/14a

C       A F B E-

 F     UN O  D  C

 V—E  -A UN  

S . ()   H A       

    UN —P   H -

 A         

In 2014, the Austrian Supreme Court dealt with the claim of an employee of the

UnitedNations Oce on Drugs and Crime (UNODC) against t he Vienna Regional Health

Insurance Fund concerning childcare allowance. By decision of 29 February 2012, the

Respondent had rejected the Claima nt’s application for childcare allowance for her daugh-

ter born on 15 January 2012, pointing to Sec tion39 lit. (b) of the Agreement between the

Republic of Austria and the UnitedNations regarding the Seat of the UnitedNations in

Vienna (hereinaer referred to as “Headquarters Agreement”). According to this provi-

sion “Ocials of the UnitedNations and the members of t heir families living in t he same

household to whom this Agreement applies shall not be entitled to payments out of the

Family Burden Equa lization Fund or an instr ument with equivalent objectives, u nless such

persons are Austrian nationals or stateless persons resident in Austria”. e claimant, a

citizen of the Russia n Federation, challenged the Respondent’s decision to reject her appli-

cation for childcare al lowance, arguing that the exclusion provided for in Sec tion39 lit. (b)

of the Headquarters Agreement was not applicable in her case because her husband and

child were Austrian cit izens. She argued that the rejection of her chi ldcare allowance ap-

plication would subject an Austrian citizen married to a non-Austrian UnitedNations

employee to additional nancia l burden, for which there was no justication. e Cla imant

further emphasi zed that despite her position as employee of the UnitedNations she did not

enjoy immunity or diplomatic privi leges.

e court of rst inst ance dismissed the clai m and stated that childcare a llowance was

encompassed by Section39 lit. (b) of the Headquarters Agreement. In v iew of the tax privi-

leges that the Claima nt enjoyed as an employee of the UnitedNations, the exclusion did not

constitute an unjusti ed dierentiation. e childcare allowance wa s nanced out of the

Austrian Fami ly Burden Equalization Fund to which employees of the UnitedNations did

not contribute. e fact that the Cla imant was the only family member who did not hold

Austrian citi zenship was not relevant. According to Section37 lit. ( f) of the Headquarters

Agreement, ocials of the UnitedNations assigned to Vienna enjoy “[e]xemption from