In a decision of 30 September 2020, the Constitutional Court held that climate-damaging tax benefits for aviation companies cannot be contested by persons who do not use the services of these companies for environmental reasons. The corresponding application thus was inadmissible (see http://climatecasechart.com/non-us-case/greenpeace-v-austria/). On 23 February 2022, a previously uninvolved applicant – a consumer using both rail and air services – resubmitted the application. The applicant has been diagnosed with multiple sclerosis and suffers from the related Uthoff syndrome – symptoms associated with multiple sclerosis exacerbate in case of higher temperatures. At temperatures of 25°C, the applicant’s ability to walk is limited; at temperatures of 30°C, the applicant depends on a wheelchair and assistance from others. As a result of climate change, the number of warm and hot days in Austria steadily increased; the average temperature in Austria has already risen by 1.8°C (compared to the global average of 1°C). Thus, Austria is particularly affected by the climate crisis. Nevertheless, it further aggravates the climate crisis: Austrian tax law provides that the domestic part of cross-border passenger transportation by aviation companies is exempt from the turnover tax. Furthermore, paraffin – the fuel for air travel – is exempt from the mineral oil tax. On the other hand, passenger transportation by rail companies is not exempt from the turnover tax even though greenhouse gas emissions associated with a rail journey are, on average, 31 times lower than when traveling the same distance by airplane.
Against this background, the applicant alleged the unconstitutionality of relevant tax provisions in the Federal Turnover Tax Act and the Mineral Oil Tax Act for violating her fundamental rights. In concrete terms, the applicant alleged a violation of her right to equality before the law, her right to life and her right to private and family life.
The right to equality before the law conveys a right to equal treatment – differentiations are only justified when they result from differences in facts. According to the applicant, trains and airplanes are – at least in Europe and Austria, where the high-speed rail network is well developed – equivalent means of transport as total travel time is similar. Differences only occur with regard to associated emissions which are drastically higher when traveling per plane. Tax benefits for aviation thus lead to unequal treatment of equivalent means of transport that stand in direct competition. As a result of tax benefits for aviation, end consumers that travel by rail have to pay 10% more for their tickets for an identical route at an identical price per kilometer than if they were to fly. This unequal treatment is not objectively justified. It contradicts Austria’s obligations under international and European law to mitigate the climate crisis, increasing greenhouse gas emissions and promoting climate-damaging behavior. Therefore, the applicant asserted a violation of her right to equality before the law.
The applicant further alleged a violation of her right to life. The right to life, as enshrined in Art 2 ECHR and Art 2 CFR, entails positive obligations – the state must adopt measures that prevent (foreseeable) threats to life. Climate change threatens human life directly and indirectly, for example, by destroying ecosystems. The Austrian state, thus, is under a positive obligation to adopt measures to prevent threats to life from climate change. However, the state not only disregards this obligation but also encourages climate-damaging behavior by granting tax benefits to aviation. Due to the lack of justification, the applicant asserts a violation of her right to life.
Positive obligations also arise from the right to respect for private and family life according to Art 8 ECHR and Art 7 CFR. The Austrian state is obliged to protect health, physical and mental well-being and bodily integrity from environmental hazards, including climate change. Climate change leads to an increased occurrence of extreme weather events such as heat waves, floods or hurricanes, which negatively impact human health. This is particularly evident in the case of the applicant who, due to the increasing number of warm and hot days caused by climate change, is more frequently dependent on a wheelchair and assistance or forced to live isolated in cooled indoor areas. The applicant thus alleged that the Austrian state violates its positive obligations under Art 8 ECHR and Art 7 CFR by promoting climate damaging behavior through tax benefits.
The applicants demanded that the Constitutional Court repeals the relevant provisions of the Federal Turnover Tax Act and the Mineral Oil Tax Act as unconstitutional. In addition, she asked the Constitutional Court to initiate preliminary ruling proceedings at the European Court of Justice to clarify whether Art 37 CFR constitutes a fundamental right, a principle or a European objective.
On 27 June 2023, the Constitutional Court dismissed the application as inadmissible. As of 1 January 2023, the Turnover Tax Act had been amended to exempt not only aviation but also cross-border rail transport from the turnover tax. The applicants lacked standing since the originally contested provision was no longer in force. The court further held that the obligation to pay turnover taxes was directed at businesses and that consumers were, therefore, excluded from challenging respective provisions. The same applies in connection with the mineral oil tax: since it is not payable by consumers, they are not affected in their legal sphere and thus are not entitled to challenge tax provisions.
Case Documents:
Filing Date | Type | File | Summary |
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06/27/2023 | Decision | Download | Constitutional Court decision. |