Case registered before the CJEU under C-1022/26

The applicants are minors who, together with their mother, have been granted subsidiary protection status on 23 January 2026. Following the lodging of the application, they were granted basic care by the Federal State and were assigned to the State of Tyrol for the provision of basic care, since the applicants' father had his place of residence there. The father was granted refugee status on 30 August 2023.

The Tyrol Regional Government initially did not in fact provide any basic care benefits. The applicants therefore applied for basic care on 16 January 2025. By a request for rectification dated 1 July 2025, the applicants and their mother were asked to submit the children's father's payslips for specified months and proof of unemployment benefit received over a period of approximately two weeks. They complied with that request, following which they were granted limited basic care benefits for the period from March to June 2025, including adequate food, payment of health insurance contributions and necessary clothing assistance, in accordance with the Tyrol Basic Care Act. The applicants subsequently sought the continued provision of benefits by submitting the father's payslip for August 2025 to the Tyrol Regional Government.

By decision of 8 September 2025, the request for the continued provision of food allowance, rent assistance and clothing support from 1 August 2025 onwards was refused, and payment of health insurance contributions was discontinued. According to the Tyrol Regional Government, the father's employment income meant that no situation of need existed. As a result, the applicants have, in practice, received no social assistance since 1 August 2025, whether in reception nor following the later grant of subsidiary protection. An appeal against that decision is pending before the Regional Administrative Court of Tyrol in respect of the mother, but as a separate proceeding.

By a further decision of 10 June 2026, identical in substance to that of 8 September 2025, the authority rejected the applications for the continued granting of basic care benefits and discontinued the payment of health insurance contributions, on the ground that the father's income meant that no financial hardship existed. The children appealed that decision before the Regional Administrative Court of Tyrol. The court stated that the applicants' claims must be examined in the light of the legal provisions applicable during each relevant period, while referring to established national jurisprudence.

The Regional Administrative Court of Tyrol held that the applicants' father earns EUR 1,775.24 per month, paid 14 times a year and that no other family member has an employment income. The applicants are entitled to family allowance. They live with their parents in a 27 m² one-room flat, for which the father pays EUR 800 per month in rent. The referring court found that the accommodation is not adequate for local standards, and the five-member family lives in limited conditions. The family lacks the financial means to secure adequate housing, basic household necessities and school-related expenses. The court found that the minors are not receiving the educational assistance they need for language acquisition and integration. Afternoon care, cannot be financed from the father's income, as the cost of EUR 100 per child per month is unaffordable for the family.

Regarding the provision of social assistance, the referring court stated that the Austrian federal legislature requires the regional states to grant beneficiaries of subsidiary protection social assistance only in the form of core benefits corresponding to the level of basic care support. Those are the benefits granted, inter alia, to applicants within the meaning of Article 3(8) of the Qualification Regulation during the procedure for examining an application for international protection. They are lower than the benefits which may be granted to Austrian nationals in situations of need as basic benefits under the Tyrol Minimum Income Act, and they are subject to different conditions of entitlement. The Tyrol Basic Care Act provides that foreign nationals whose proceedings on an application for international protection have been finally concluded or are still pending as regards the grant of refugee status, and who have been granted subsidiary protection status under Article 18 of the Qualification Regulation or under Section 8 of the Asylum Act 2005, are entitled to basic care. Accordingly, beneficiaries of subsidiary protection status are excluded from the public minimum income scheme and are instead referred to benefits under the Tyrol Basic Care Act. These correspond to the benefits available to applicants for international protection during pending proceedings.

The court further held that, under the Tyrol Minimum Income Act, the applicants would be entitled to higher benefits and under different conditions than under the Tyrol Basic Care Act. The conditions of entitlement to basic care and to minimum income support are significantly different. The Tyrol Minimum Income Act, which applies to Austrian citizens, recognised refugees and certain third-country nationals, provides for higher benefits intended to cover subsistence and housing needs.

The court held that those rules fall within the scope of Article 31 of the Qualification Regulation, with the result that the interpretation of those provisions of EU law is relevant to the outcome of the proceedings. Under the Qualification Regulation, beneficiaries of international protection, including beneficiaries of subsidiary protection, must in principle be treated in the same manner as nationals with regard to social assistance. Although Member States may limit social assistance for beneficiaries of subsidiary protection to “core benefits”, the scope of those benefits is not exhaustively defined by the Qualification Regulation. Under national law, access to certain social assistance benefits may depend on participation in integration measures.

Against this background, the court decided to stay the proceedings and referred 4 questions to the Court of Justice of the European Union (CJEU). First, the court asked (1) whether a social assistance system that grants beneficiaries of subsidiary protection only benefits at the level of basic care support, while Austrian nationals receive minimum income support under more favourable conditions, is compatible with EU law. The court has doubts as to whether Art 31 of the Qualification Regulation may be interpreted as being compatible with the exclusion of beneficiaries of subsidiary protection from the scope of the Tyrol minimum-income scheme applicable to Austrian citizens. The court referred to the CJEU judgment Kreis Warendorf and Ibrahim Alo v Region Hannover, in which the CJEU held that the Art 29(1) of the recast Qualification Directive (QD), laid down the general rule that beneficiaries of international protection are to receive social assistance under the same conditions as nationals of the Member State granting that protection. Article 29(2) of the QD authorised Member States to limit social assistance for beneficiaries of subsidiary protection to core benefits. Even in such cases, however, those benefits had to be granted under the same conditions as those applicable to nationals. The referring court found that the new wording of Art 31 Qualification Regulation appears to suggest that, in the grant of core benefits, equal treatment with nationals of the Member State concerned is required, with the focus being on the benefit itself rather than merely on its extent or on a level of benefits sufficient to cover only ‘core needs'. That wording of Art 31(1) sentence 2 of the Qualification Regulation suggests that equal treatment as regards core benefits is required under EU law not only in relation to the level of the benefit, but also as regards its form and thus its type. On that basis, the limitation to core benefits under Article 31(2) of the Qualification Regulation could be understood to mean that, within each relevant form of benefit, beneficiaries of subsidiary protection status are to be granted only those benefits which are also granted to nationals and which qualify as core benefits.

The court further sought clarification as to the interpretation of the terms (2) minimum income support and (3) housing allowance, which, under Article 31(2) letters a and d of the Qualification Direction, form part of the so-called core benefits. The referring court asked whether the term of minimum income support may be understood — as assumed by the national legislature — as referring to benefits within the meaning of the Reception Conditions Directive, and thus to benefits under the Tyrol Basic Care Act, or whether reference must instead be made to the benefits available to nationals of the Member State granting protection. With regards to the concept of ‘housing allowance', the court asked whether it falls within the notion of housing assistance referred to in recital 70 of the Qualification Regulation, which is to be regarded as a core benefit in so far as it constitutes a social benefit. Further question arises whether Article 31(2)(d) Qualification Regulation requires housing allowance to be granted in the same form, at the same level and subject to the same conditions of entitlement as those applicable to nationals of the Member State granting protection.

The court further asked (4) to what extent subsistence benefits must be awarded provisionally during administrative court proceedings to avert an acute risk, in particular to the best interests of the child, even though national procedural law does not expressly provide for such. The referring court stated that there is a risk that the effectiveness of EU law may be undermined if no support is granted to the minors for the duration of the appeal proceedings before the Regional Administrative Court of Tyrol. That could result in irreversible harm to the welfare of the minors. Having regard to the minor applicants' development and social integration into Austrian society, the provisional grant of benefits appears urgently necessary in order to prevent irreparable harm arising from limited living conditions and the lack of access to language and integration support. National law does not provide for any possibility of provisionally conferring a legal position during administrative court proceedings, except for the special constitutional jurisdiction before the Constitutional Court. The courts asked whether itself has the substantive power — or is even under an obligation — to grant of its own motion, on a provisional basis, support securing subsistence, including the means to finance school-related and integration measures, and support securing housing needs, in order to ensure the full effectiveness of EU law. It also asked whether, if national law does not lay down the conditions for granting such measure, it is for the court hearing the application for interim measure to decide under what conditions provisional protection should be granted in order to ensure the full effectiveness of EU law.

Lastly, the court requested an expedited preliminary ruling procedure, holding that the minors are currently receiving no state support sufficient to secure their subsistence, and their limited housing conditions and lack of school-based language support may cause lasting disadvantages for their development and integration.

The questions referred to the CJEU are:

1. Must Article 31 of the Qualification Regulation (EU) 2024/1347 be interpreted as precluding national legislation under which persons granted subsidiary protection status within the meaning of Article 3(2) of that regulation are entitled to social assistance only in the form and at the level granted to applicants within the meaning of Article 3(8) thereof, whereas nationals of the Member State granting protection are entitled to social assistance in the form of minimum-income benefits which are more favourable as regards both the amount of the basic benefits and the conditions of entitlement?

2. Must the concept of ‘minimum income support' in Article 31(2)(a) of  Qualification Regulation (EU) 2024/1347 be interpreted as encompassing those benefits of the same type, at the same level and subject to the same conditions of entitlement as those granted to nationals of the Member State granting protection as a basic benefit intended to secure subsistence, and are such core benefits to be distinguished from the benefits granted, in the context of reception, to applicants within the meaning of Article 3(8) of that regulation?

3. Must the words ‘housing allowance, in so far as such benefits are granted to nationals of the Member State concerned under national law' in Article 31(2)(d) of Qualification Regulation (EU) 2024/1347 be interpreted as meaning that persons granted subsidiary protection status within the meaning of Article 3(2) of that regulation are entitled to benefits securing their housing needs in the same form, at the same level and subject to the same conditions of entitlement as those applicable to nationals of the Member State granting protection, and does that provision preclude national legislation which provides instead for a benefit differing in form and access conditions and lower in amount, corresponding to the type and level of benefit granted, in the context of reception, to applicants within the meaning of Article 3(8) of that regulation?

4. Must the principle of equivalence be understood as meaning that the provisional conferral of a legal position, for the purpose of ensuring the full effectiveness of rights guaranteed under EU law — in particular during the preliminary-ruling proceedings and thereafter until a decision is given in the main proceedings — must be governed by the criteria laid down in national law for the grant of interim relief, even where that law does not provide for the provisional conferral of such a legal position and only the provisions on suspensive effect could be applied essentially?