The Austrian Constitutional Court examined in a legal review procedure the constitutionality of various provisions of the BBU Establishment Act (BBU-G) and the BFA Procedure Act (BFA-VG) concerning the independence of legal counselling for asylum seekers and foreigners conducted by the Federal Agency for Care and Support Services (BBU).

The reason for the procedure were various complaints from applicants for international protection against the findings of the Federal Administrative Court, who questioned the compatibility of the provisions regulating the legal assistance and representation by the BBU with the Constitution, namely the right to an effective legal remedy pursuant to Article 47 of the EU Charter and the principle of administration applied to bodies fundamentally bound by instructions pursuant to Article 20 of the Federal Constitutional Law.

The legal provisions concerned are Section 52 of the BFA-VG, which stipulates that applicants for proceedings before the Federal Administrative Court must be provided ex officio with a legal advisor free of charge who assists them in lodging a complaint and who can, upon request, also represent the applicant in proceedings before the Federal Administrative Court. According to Section 13(1) of the BBU-G, this legal assistance must be provided independently and free of instructions.

Since the establishment of the BBU, the agency has been exclusively entrusted with the provision of legal counselling, which was previously also entrusted to civil society or welfare organisations upon selection by the Federal Chancellor.

The Federal Constitutional Court ruled that the right to effective legal protection required that the BBU's legal counsellors are not subject to instructions and were independent from the state, in particular from the Minister of the Interior, who is responsible for the enforcement of immigration law. The Federal Constitutional Court acknowledged that the independence of the legal counsellors was regulated by law. However, the court held that the framework agreement, which more closely defined the relationship between the BBU and the Minister of the Interior, was not sufficient to effectively implement the independence of legal counselling. This was due to the fact that the management of the BBU was bound by instructions from the Minister of the Interior and the Minister of Justice under company law and because the Minister of the Interior acted as representative of the BBU under company law.

At the same time, the Federal Constitutional Court ruled that BBU’s organisation as Ltd. under private law was constitutional. The court held that even though the BBU provided legal assistance and representation as a state-controlled legal entity, this activity was a service to support applicants in the enforcement of their rights in asylum proceedings, which could also be provided by private individuals. The legal service provided was not organised in a way that would constitute an assignment of the BBU or the individual legal counsellors to the state administration. According to the Federal Constitutional Court’s considerations, the legal assistance provided by the BBU did therefore not constitute a functional state administration within the meaning of Article 20(1) of the B-VG and did not constitute a violation of Article 20(1) and (2) of the B-VG.

Based on the above, the Constitutional Court decided that some provisions in the BBU Establishment Act (BBU-G) and the BFA Procedure Act (BFA-VG) were unconstitutional. The court gave the legislator until 1 July 2025 to enact a new legislation.