Broadcasting fees: Austria's household levy is constitutional

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For only the second time in history, the Austrian Constitutional Court (VfGH) has had to conduct mass proceedings. This was due to numerous complaints against the “household levy” introduced at the beginning of 2024 to finance the public broadcaster ORF (Österreichischer Rundfunk). They were of no avail: the Constitutional Court dismissed all complaints; both households and businesses must pay the planned amount because the monthly flat rate is not unconstitutional. This means that the appeals process has been exhausted.

In Austria, all households with at least one main residence of an adult and all businesses subject to municipal tax have had to pay broadcasting fees since the beginning of 2024. The money goes to the public broadcaster ORF, even if the payers do not have any devices with which they could use ORF content. Numerous Austrians considered this “household levy” to be unconstitutional and obtained notices, against which they were able to appeal to the Federal Administrative Court and finally the Constitutional Court. In particular, they argued with the principle of equality in the Austrian constitution. Put simply, this stipulates that the legislator must regulate equal circumstances equally, but also that it must regulate unequal circumstances differently.

First of all, the Constitutional Court states that this is not a levy in the legal sense, but a “levied monetary payment” that flows directly to a public foundation, the ORF. This means that the competence rules of financial constitutional law do not apply. The fact that companies have to pay, even if the employees are not allowed or able to consume ORF content, is also permissible: It is sufficient that entrepreneurs “may have a company-specific interest in information”. Only if they “have to finance tasks that (cannot) be in their interest from any conceivable standpoint” would the charge be inadmissible.

Households affected unequally

The same applies to households: “Even without a reception facility, there is a real possibility for the person liable to pay the contribution to use the public service because such a facility can generally (…) be technically produced with little effort for the person liable to pay the contribution.” The principle of equality does not require the obligation to contribute to be linked “to the possession of a technical possibility to receive broadcasting programs”. This also does not violate the right to the integrity of property.

If several adults are registered in a household, ORF-Beitrags Service GmbH (OBS, formerly GIS Gebühren Info Service GmbH), which is responsible for collecting the contributions, arbitrarily selects one adult. This is also permitted, as the adult household members are jointly and severally liable. In such cases, creditors are free to choose who they sue. Theoretically, the payers can then seek recourse from their co-debtors on a pro rata basis.

Conversely, this means that small households have to pay significantly more per person than large households. The Constitutional Court is just as unconcerned by this as it is by the fact that the burden is much higher for the poor than for the rich: “The fact that the contribution burden per person varies depending on the size of the household does not call into question the objectivity of the regulation considering the amount of the ORF contribution.”

Data protection and human rights

The OBS may obtain data from the population register, the register of associations, the company register, the transparency database, the Austrian Trade Information System, the company register and all municipal tax returns. It may also pass on debtor data to debt collection agencies if necessary. However, contrary to the arguments put forward, none of this is a violation of the right to data protection, the Constitutional Court recognized. Firstly, the transfer of data is regulated by law. Secondly, these regulations are suitable, necessary, and proportionate to achieve the objective of collecting ORF fees.

The Constitutional Court makes short work of the claim that the ORF fee would restrict the right to receive information freely, as enshrined in the European Convention on Human Rights. It was “not apparent that the obligation to pay the ORF fee violated the individual's rights guaranteed by Art. 10 ECHR to decide for themselves, without coercion, which media they support.”