On February 20, 2020, Greenpeace Austria and 8,063 petitioners filed a request with the Constitutional Court to invalidate tax exemptions that give credits to air travel and not railways. The request arises out of Article 2 and Article 8 of the European Convention on Human Rights, Article 2 and Article 7 of the Charter of Fundamental Rights, and the principle of equality before the law. The submission also contains a request for preliminary ruling with the European Court of Justice regarding the legal nature of Article 37 of the Charter of Fundamental Rights.
The request asserts that the value-added tax exemption on cross-border flights and the kerosene exemption on national flights contribute to climate change by making it less expensive to fly than to take the train. The petitioners argue that the consequences of the climate crisis pose an imminent and foreseeable threat to their lives, and that Austria has a duty to protect its citizens from these consequences as a party to the Paris Agreement and based on its constitutional duty to protect arising out of the European Convention on Human Rights. Petitioners further argue that the challenged tax exemptions damage the climate and constitute an active infringement of this duty. The petition also alleges that the tax exemptions constitute a preferential treatment for the aviation sector, in violation of the constitutional principle of equality before the law.
Lastly, the petition includes a request for a preliminary ruling with the European Court of Justice, alleging that while both tax exemptions are allowed for, they are not explicitly provided for in the respective EU directives. This claim asserts that Article 37 of the Charter of Fundamental Rights should be interpreted as creating an enforceable right to a high level of environmental protection.
On September 30, 2020 the Constitutional Court dismissed the case on the grounds that rail passengers do not have standing to sue over preferential tax treatment given to air travel.