Chapter VIII. Decisions of national tribunals

Austr ia
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 a llowance. By decision of 29 Februar y 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 “Headquar ters 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 entit led 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 Austria n citizen marr ied 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

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