Differentiating tariffs for locals and non-locals

The AOB has received numerous complaints, in which people complained that when using public facilities, such as swimming pools, ski lifts, parks, fitness studios, etc., they had to pay higher fees in comparison to the local population. The complaints were associated with facilities that were either directly operated by the municipality or operated in a certain relationship of dependency with or an exertion of influence by the municipality.

The prohibition of discrimination within the Community, pursuant to Art. 12 and Art. 49 of the EC Treaty, interdicts discrimination for reasons of citizenship, and/or restrictions of the freedom to provide services for nationals of member states who are residing in a Community member state other than the country of the service recipient. In a number of rulings, the European Court of Justice has represented the opinion that a member state that grants unjustified tariff or price advantages to local residents as compared to non-residents is violating its duties.

For entities which run public facilities under private law, the principle of equal treatment requires an objective justification for exceptions. A differentiation that has been objectively justified would, for example, be if parity of tariffs/prices among both local residents and non-residents would result in a displacement of or insufficient access for local residents. To what extent this applies in a specific case can be assessed only in accordance with the concrete circumstances on a case-by-case basis.

Contracts between municipalities and citizens that violate these EU regulations or the principle of equality under the Constitution must be deemed partially null and void. Such a partial nullity can, if applicable, result in restitutory claims for the additional amounts charged in comparison to residents of the municipality. In the opinion of the AOB, excessive charges during that last three years could be reclaimed.

Numerous times there were permutations of indirect preferential treatment relative to tariffs/prices that complicated the AOB’s investigations. In the town of Wiener Neudorf in Lower Austria the prerequisite for the purchase of a season ticket for the swimming pond was that one had a so-called Wiener Neudorf Card. However, in order to purchase a Wiener Neudorf Card, it was mandatory to be a resident of the municipality of Wiener Neudorf. To what extent such indirect measures violate the prohibitions listed above must be evaluated according to whether this had primarily legitimate objectives, from the pursuit of which such preferential treatment relative to tariffs/prices resulted as a secondary effect or if the ostensible effect and primary objective of these constructs was a hidden preferential treatment of the residents of the municipality.

Another problem crops up if private companies are the direct provider. In the complaints received by the AOB, it has emerged that the municipality is often not the direct operator of public facilities or the provider of public services, but that these are provided by private companies.

Based on the results of its ex-officio investigative proceedings, the AOB assumes that pursuant to rulings by the European Court of Justice, the EC prohibition of discrimination also applies directly between private parties and therefore represents a prohibition under the law. As companies operating under private law, even if they are involved in the area of divested public responsibilities, are not subject to the investigative purview of the AOB, due to the large number of complaints in this area, there is an urgent need to expand the investigative purview of the AOB in this direction.