The opinion is the latest legal hitch to befall a series of measures — imposed by a previous government that included the far-right — which sought to restrict benefit payments to foreigners.
Richard de la Tour, advocate general of the Court of Justice of the European Union (CJEU), said the cuts to child benefits constituted “an infringement of the right of free movement conferred on EU citizens”.
The specific case relates to reforms that came into effect in 2019 which indexed child benefits according to where the recipient’s children live.
This meant reduced payments for tens of thousands of eastern Europeans who work in Austria — notably in the care sector — but whose children remain in their countries of origin.
The advocate general’s advice is not binding on the court but it is seen as influential.
De la Tour found that the cuts were “indirect discrimination on the ground of nationality which is permissible only if it is objectively justified”, and that Austria had failed to do so.
They contravened the principle that “if a migrant worker pays social contributions and taxes in a member state, he or she must be able to benefit from the same allowances as nationals of that state”, he added.
In 2020 the European Commission, supported by six eastern member states, brought an action before the CJEU claiming Austria was “failing to fulfil its obligations”.
Former Austrian Chancellor Sebastian Kurz had said he hoped the cuts would save 114 million euros ($130 million) a year but in 2019 they recouped 62 million euros.
The former coalition also introduced benefit cuts for immigrants who failed to reach a certain level of German, but those measures were subsequently overturned by the Austrian courts.
The government that introduced in the cuts was brought down in a corruption scandal in May 2019.
It included the centre-right Austrian People’s Party (OeVP), which is still the senior partner in the current government.
However their current coalition partners, the Greens, opposed the benefit cuts at the time.