Important, but not Fundamental?

The Protection of Social Benefits in the Case Law of the European Court of Human Rights and the Austrian Constitutional Court


  • Philipp Selim Austrian Constitutional Court



comparative law; social rights; right to property; right to equality; right to a dignified minimum subsistence; migration law


This article attempts to shed light on how both the ECtHR and the Austrian VfGH have contributed to the protection of existing social benefits, to the right to equal access to social benefits and perhaps even to the establishment of a right to a dignified minimum subsistence. Although neither Court can refer to a catalogue of fundamental social rights, both have developed case-law that provides fundamental guarantees for social benefits. This article demonstrates that even conventional fundamental rights guarantees, such as the right to property and equality, can be used to protect social benefits. Equally, however, this article identifies inconsistencies in the case­-law and points the way to possible future developments.

Author Biography

Philipp Selim, Austrian Constitutional Court

Philipp Selim was a doctoral candidate and researcher at the Department of Constitutional and Administrative Law, University of Vienna, and is currently a law clerk at the Austrian Constitutional Court. This article is a revised version of a thesis written by the author in the course of his civil service exam. The opinions expressed are solely those of the author.

I would like to thank Elke Haslinger, Herwig Mitter, and the two anonymous reviewers for their instructive comments on earlier drafts. They have contributed greatly to improving the structure and argument of the article; any errors, of course, remain mine.