Constitutional review for Austria’s GEZ equivalent is on hold

The Austrian Constitutional Court (VfGH) has rejected a complaint against the budget tax introduced at the beginning of the year as inadmissible. This means that it will remain unclear for some time whether the flat-rate tax to finance public broadcaster ORF (Österreichischer Rundfunk) is constitutional. Until 2023, only households and companies that had radios or televisions available for reception inside a building had to pay the so-called GIS fee. From the beginning of the year, those who do not have such equipment and whose main residence is occupied by at least one adult person or who are subject to local tax as a company have also had to pay.

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The household tax is unpopular in Austria, with around two thirds of people disapproving of it. No wonder a three-digit number of applicants have been found asking the Constitutional Court to repeal the levy. They see a violation of the principle of equality in the Austrian Federal Constitution. Simply put, it stipulates that the legislature must regulate equal situations in the same way, but also that it must regulate unequal situations differently. Since the compulsory household tax does not distinguish whether the individual paying the contribution can actually use the ORF offer or not, according to the applicants, the law is contrary to equality.

In addition, the law violates the right to integrity of property, since even those who do not take advantage of the ORF service funded by it have to pay. The applicants also include the affected companies. Whether they complain about paying the tax, even if the people working in the company already finance ORF through their household tax, is unclear. Publications of the Constitutional Court Regarding the procedure (Ref. G 17/2024).

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Rejection is not rejection

However, applicants face a procedural obstacle: direct complaints from affected people, so-called individual complaints, are only allowed in exceptional cases in which no appropriate legal recourse is available. Otherwise the Supreme Court would be flooded with all kinds of applications. Unsurprisingly, the Constitutional Court also sees an appropriate legal recourse for household contributions: those affected can apply to the ORF-Betragservice GmbH (OBS) for a notice that individually sets out the payment obligation. Legal remedies against this are available with the Federal Administrative Court; in this process, those affected can argue that this is unconstitutional.

If the Federal Administrative Court also has doubts about admissibility, it can refer the case to the Constitutional Court. But even if the court confirms the decision, those affected can submit an admissibility application for review to the Constitutional Court. The case law of the Constitutional Court on the admissibility of the Austrian domestic tax has not been repealed, but rather deferred.

The Austrian household tax amounts to 183.60 euros per year. Four of the nine federal states allow the OBS to collect additional state taxes of up to 56.40 euros per year for their own budget (Burgenland, Carinthia, Styria, Tyrol). The new ORF tax is more than twice as expensive for households that only have radios but no televisions and have therefore had to pay less so far. This particularly affects blind and visually impaired people. In addition, from the beginning of the year households that have neither radios nor televisions have also had to pay and therefore do not have to pay until 2023.

Exemptions are available for people in social need and the deaf. No fees are required for purely secondary residences; however, (except in Burgenland and Lower Austria) state taxes are payable for holiday, vacation or second homes, which are significantly higher than the ORF household tax (in Vienna from 2025). Companies also have to pay the ORF tax for permanent establishments, which depends on the wage bill and can be up to 50 times higher (9,180 euros annually).

(DS)