8. Western Europe: A. Austria

8. Western Europe: A. Austria (1) State of the Environment Austria’s environmental situation is comprehensively described every three years in the State of Environment Report (Umweltkontrollbericht) in accordance with the Environmental Control Act (Umweltkontrollgesetz), Federal Law Gazette I 152/1998 (unless otherwise noted, legislation is cited by referring explicitly only to the original version in the Federal Law Gazette (Bundesgesetzblatt (BGB). It is implied that this includes amendments until 31 December 2016). The eleventh edition, covering the period 2013–15, was published in 2016. The Air Pollution-Inventory Federal Provinces 2016 (Luftschadstoff-InventurBundesländer), Annual Air Emission Inventory, and Emissions Trends, all published in 2016, describe the status of air pollution for the period of 1990–2014. According to the Climate Mitigation Report 2016 (Klimaschutzbericht), Austria’s greenhouse gas (GHG) emissions in 2014 amounted to about 76.3 million tons of carbon dioxide equivalents, 4.6 percent or 3.7 million tons below the levels of 2013. These emissions stem from the sectors of energy and industry (44.4 percent), transport (28.5 percent), buildings (10.0 percent), and agriculture (10.4 percent). The average temperature increase in Austria is already two degrees Celsius, with temperatures in the winter months of 2015–16 accounting for the second warmest winter in the nearly 250-year-old Austrian history of measurement. A total of 48.22 million tons were emitted by sectors not covered by the emission trading system, which is 3.9 million tons below the targets set by the Climate Change Act (Klimaschutzgesetz), which translates the target of the European Union’s (EU) Effort Sharing Decision for the period 2013–20 (Federal Law Gazette I 106/2011). In 2014, total emissions were 3.2 percent below 1990 levels. Recent decreases were mainly due to emission reductions in the energy production sector and a mild winter, resulting in a lower demand for heating. In 2016, Austria held a 33 percent share of renewable energy sources in gross final energy consumption—1 percent short of its EU 2020 Climate and Energy Package target. The final energy consumption of 1,063 quadrillion joules—made possible because of warm winter months—was only slightly above the target of 1,050 quadrillion joules as envisaged under the Energy Efficiency Act (Federal Law Gazette I 72/2014). (2) International Meetings and Conferences in Austria In January, the preparatory meeting of the twenty-fourth Organization for Security and Co-operation in Europe (OSCE) Economic and Environmental Forum—Good Governance in the OSCE Area: Reinforcing Security and Stability through Co-operation—investigated the complex challenge of governing natural resources and managing diverse environmental issues effectively, especially in view of a growing global population and cross-border environmental challenges. The concluding meeting was held in Prague. In February, the third international conference on growth in transition entitled ‘How Constraints Make Us Grow’ tackled questions of growth and an alternative, sustainable, economy. Participants discussed ways to decouple economic growth and resource use and envisioned future methods for approaching growth, prosperity, and quality of life in the face of limited resources. In April, the first Model United Nations Conference on Environment took place in Vienna. Organized for youth interested in the work of the United Nations Environment Programme, this educational simulation gave participants an opportunity to discuss issues of environment, sustainability, biodiversity, and international climate agreements on an international and scientific scale and to develop their ideas in an international resolution. The stakeholder workshop of the MARS project, which stands for Managing Aquatic Ecosystems and Water Resources under Multiple Stresses, brought approximately sixty river basin managers, officials under EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy, European Environment Agency representatives, external experts, and aquatic scientists to Vienna. They discussed the challenges of multiple pressures, such as pollution, floods, droughts, and river bank alterations, and their unpredictable interactions. A better understanding could contribute to improving river basin management plans under EC Directive 2000/60. In September, the International Atomic Energy Agency Scientific Forum for the Sustainable Development Goals (SDGs) took place in Vienna. The session explored topics related to the role of nuclear energy in the future as a rather low-carbon energy source, in achieving SDG 7 (affordable and clean energy), SDG 9 (industry, innovation, and infrastructure), and SDG 13 (climate action) and how nuclear and isotopic technology can protect the environment, help manage natural resources, and achieve SDG 6 (clean water and sanitation), SDG 14 (life below water), and SDG 15 (life on land). (3) International Agreements Austria signed the Paris Agreement on 22 April 2016 and deposited its ratification instrument on 5 October 2016 with the Secretary-General of the United Nations in New York (Federal Law Gazette III 197/2016). Austria is committed to reducing its greenhouse gas emissions jointly with the other European Union (EU) member states as set out in the European Council conclusions of 24 October 2014 and in line with the EU’s intended nationally determined contributions (INDC) of a 40 percent reduction by 2030 (compared to 1990). The proposed effort-sharing regulation for non-ETS sectors suggests a 36 percent reduction target for Austria (compared to 2005). In regard to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) proceedings against Austria and following Decision V/9b (2014) of the Aarhus Convention Compliance Committee, which found the implementation of Article 9(3) of the Aarhus Convention regarding access to justice for the public in administrative or court proceedings in environmental matters insufficient, Austria submitted its third and final report on 21 December (Doc. ECE/MP.PP/2014/2/Add.1). In October, in its second progress review, the Compliance Committee invited Austria to provide evidence that it had fulfilled its obligations. Austria’s report describes the legislative processes underway by its provinces and the work of the task forces without giving a concrete time plan for the implementation of access to justice rights. The decision on Austria’s compliance or, more likely, continued non-compliance is expected to be made in 2017. (4) Regional and Bilateral Relations In February, during the third International Commission for the Protection of the Danube River Ministerial Meeting in Vienna, fourteen Danube basin countries and the European Commission adopted the Danube Declaration 2016 within the EU Strategy for the Danube Region (EUSDR). The declaration focuses on transboundary challenges with regard to the environment and risk of floods. Two management plans for the Danube River Basin with measures to improve the purity and ecosystems of rivers, lakes, and groundwater and to manage the risk of floods were endorsed and will be implemented by 2021. Innovative Flows: Water, Knowledge and Innovation in the Danube Region was the topic of the fifth Annual Forum of the EUSDR in November in Bratislava, Slovakia. Conference attendees discussed the role of innovation in water management. A presentation on the scientific support to the Danube Strategy initiative by the Joint Research Centre of the European Commission completed the program. In September, the Danube Commission hosted the seventh follow-up meeting of the Joint Statement on Inland Navigation and Environmental Sustainability in the Danube River Basin. The meetings contemplated measures to improve: interdisciplinary planning processes, the minimalization of impacts of engineering interventions, and the application of environmental impact assessments with public input. (5) Austrian Environmental Policy The new Austrian Forest Strategy 2020 + (Waldstrategie 2020 +) will serve as the basis for sustainable forest management that secures the multifunctionality of Austrian forests for future generations. Approaches to climate change, biodiversity, societal functions, productivity, and economic aspects will be further developed in subsequent meetings. (6) Adoption of National Laws and Regulations on Matters of International Significance No activity during the past year. (7) Court Decisions on International Environmental Law No activity during the past year. (8) Relations with the EU (A) Implementation of EU Legislation Carbon storage is not allowed in Austria. However, in order to completely transpose the Directive 2009/31 on the Geological Storage of Carbon Dioxide, the legislator defined ‘carbon dioxide stream’ in the Mineral Fuels Resource Law (Mineralrohstoffgesetz) in view of permitted carbon capture (Federal Law Gazette I 95/2016). Accompanying EU Regulation 2013/347, the Energy Infrastructure Act (Infrastrukturgesetz) provides the legal framework for the effective handling of proceedings regarding infrastructure projects of common (European) interest (PCI) (Federal Law Gazette I 4/2016). The legislation aims at speeding up the admission process for energy PCIs, such as big gas pipelines or high-voltage overhead lines. The federal minister of science, research and economy is instituted as the Energy Infrastructure Authority. As a one-stop shop, he is in charge of the permit granting process, which is divided into a pre-application stage and a statutory permit granting stage. In the first mandatory pre-application procedural stage, the project is discussed with the public and the documents to be submitted are determined. The second stage is conducted in accordance with the Energy Infrastructure Act or with the (newly introduced) sixth section of the Environmental Impact Assessment Act (EIA Act). The proceedings may not last longer than 3.5 years. Transparency and public participation, regarded as being crucial for the success of energy infrastructure and thus the energy transition on the EU level, are realized in the early stages of the proceedings especially. Federal Law Gazette I 4/2016 also implemented last year’s ruling in the Court of Justice of the European Union (CJEU) on 16 April 2015. Case 570/13 (Gruber) strengthened the rights of neighbours in environmental impact assessment (EIA) proceedings. The revised EIA Act now statutorily grants neighbours, just like environmental non-governmental organizations (NGOs), the right to appeal a negative EIA screening decision. Preventing genetically modified organisms (GMOs) from entering Austria is the purpose of the Genetic Cultivation Prohibition Framework Act (GentechnikAnbauverbots-Rahmengesetz) (Federal Law Gazette I 93/2015). With this law, Austria makes use of the possibility granted by EC Directive 2015/412 Regarding the Possibility for the Member States to Restrict or Prohibit the Cultivation of GMOs in Their Territory and prohibits GMO cultivation in a constitutional rank. Coordination by the GMO Advisory Council (GentechnikBeirat) is crucial, as the nine provinces—not the federal body—are competent to enact implementing legislation. (B) Infringement Proceedings For about a decade, a small hydropower plant project has kept Austrian and European authorities busy. At issue was the authorization of a hydropower plant on the SchwarzeSulm, the construction of which would have caused the deterioration of the river’s water quality on a stretch of about eight kilometres. In Case 346/14, Commission v Austria, the CJEU confirmed member states’ discretion in determining grounds for a derogation from the prohibition of deterioration (Article 4(3) and (1) of EC Directive 2000/60). Acknowledging that the river is of high ecological importance, the province governor, in balancing the pros and cons of the project, found an overriding public interest in the construction of the power plant. As the aim of the transition to clean energy outweighed concerns regarding the water quality, he granted a derogation. The court was satisfied that the governor did ‘not merely refer in the abstract to the overriding public interest in the production of renewable energy but, rather, based its decision on a detailed and specific scientific analysis of the contested project.’ Austria’s case before the General Court, Case T-356/15, against EU Commission-approved state subsidies for the construction and operation of a new nuclear power plant in Britain, Hinkley-Point C, is still pending. In parallel, two Austrian NGOs, Ökobüroand Global 2000, communicated to the Aarhus Convention Compliance Committee the failure of the EU to allow NGOs to challenge state aid decisions. The Aarhus Regulation implements Article 9(3) of the Aarhus Convention but excludes state aid decisions. The complaint has been declared preliminarily admissible, and a hearing in Case ACCC/C/2015/128 is scheduled for 2017. (C) Judicial Decisions Correspondence between the European Commission and a member state can constitute environmental information. With Decision BVwG W127 2007978-1 (10 November 2016), the Federal Administrative Court annulled the Federal Chancellery’s denial of an environmental NGO’s request to access documents of infringement proceedings initiated by the European Commission against Austria for failure to transpose EU secondary law. In the court’s view, the infringement proceeding’s complaints, letters of formal notice, and replies can constitute environmental information. The case was referred back to the competent authority. Similarly, the Highest Administrative Court decided that not only objective data but also subjective representations in administrative decisions, affidavits, opinions, and so on, can qualify as environmental information (VwGH, Ra 2015/07/0123, 26 November 2015). The court further clarified that sovereign administration and non-sovereign administration, as well as acts by private persons possibly affecting the ecological balance, can also constitute environmental information. In a preliminary ruling regarding EIA proceedings, the CJEU in Stadt Wiener Neustadt clarified that a national provision that limits the possibility for annulment of an approving decision taken in breach of the obligation to assess the effects of a project on the environment to a period of three years is in conformity with EU law (Case C-348/15, 17 November 2016). After all, reasonable time limits for bringing proceedings are in the interests of legal certainty and protect the individual and the administrative authority concerned. However, a national provision—such as paragraph 46(20)4 of the EIA Act—that includes the legal fiction that the approval for a project for which there is no longer a risk of annulment must be regarded as lawfully authorized violates Article 1(5) of the EIA Directive and is precluded by EU law. Also in the field of EIAs, but with a view to party rights, the Highest Administrative Court differentiated between associations and registered environmental NGOs (in VwGH Ro 2016/04/0001, 17 February 2016). Associations that are not registered as environmental NGOs pursuant to the EIA Act do not have legal standing in EIA proceedings without showing sufficient interest in the proceedings. The requirement to register as an environmental NGO under national law constitutes a precondition for members of the ‘public concerned’ (Article 1(2) lit of the EIA Directive) to be deemed as having an interest and to be granted access to a review procedure before a court. Also, the Highest Administrative Court once again confirmed that Article 9(3) of the Aarhus Convention cannot be directly relied upon by members of the public to challenge decisions, in concreto pursuant to the Water Act (Wasserrechtsgesetz) (in VwGH, Ro 2014/07/0028, 30 June 2016). Rather, it would be up to the national legislator to enact transposing provisions that grant access to justice as envisaged by EU law and the Aarhus Convention. The Constitutional Court did not grant environmental NGOs the right to challenge a zoning regulation and development plan (in VfGH V87/2014-11, 14 December 2016). Since the environmental NGOs were not directly affected in their own subjective rights (a specific legal theory under Austrian public law), they lacked legal standing to initiate the specific proceeding. The constitutional provision of Article 139 B-VG that provides the basis for the proceedings to challenge administrative regulations cannot be interpreted in light of Article 9(3) of the Aarhus Convention. A private landowner sought to oppose hunting on his property ‘on fundamental grounds.’ The Constitutional Court dismissed his complaint against the legal obligation to allow hunting on his private property (in VfGH, G 7/2016, 15 October 2016). While the court agreed that the obligation interfered with his right to the peaceful enjoyment of his property, it contrasted with the situation from the European Court of Human Rights’ case law. The population of hoofed game in Austria is very high, and game browsing heavily affects the forests, in particular, young trees. Active management, including measures to reduce the population of wild game, is necessary to protect the forests. Austria is even obliged under the international Alpine Convention to allow mountain forests to regenerate. Thus, the legal obligation to allow hunting on property (except on enclosed properties) in the public interest places a constitutionally proportionate burden on landowners. In light of policy measures to encourage clean energy, installation of small-scale photovoltaic systems has become popular among Austrian homeowners. Installed on rooftops, their light emissions may, however, constitute a nuisance to neighbours. Based on Civil Code 364(2) ABGB, the Supreme Court granted the neighbour injunctive relief because of light emissions caused by a photovoltaic system (in OGH, 4OB43/16a, 30 March 2016). Neighbours do not have to accept more than customary local emissions that substantially obstruct the use of their property. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Yearbook of International Environmental Law Oxford University Press

8. Western Europe: A. Austria

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Abstract

(1) State of the Environment Austria’s environmental situation is comprehensively described every three years in the State of Environment Report (Umweltkontrollbericht) in accordance with the Environmental Control Act (Umweltkontrollgesetz), Federal Law Gazette I 152/1998 (unless otherwise noted, legislation is cited by referring explicitly only to the original version in the Federal Law Gazette (Bundesgesetzblatt (BGB). It is implied that this includes amendments until 31 December 2016). The eleventh edition, covering the period 2013–15, was published in 2016. The Air Pollution-Inventory Federal Provinces 2016 (Luftschadstoff-InventurBundesländer), Annual Air Emission Inventory, and Emissions Trends, all published in 2016, describe the status of air pollution for the period of 1990–2014. According to the Climate Mitigation Report 2016 (Klimaschutzbericht), Austria’s greenhouse gas (GHG) emissions in 2014 amounted to about 76.3 million tons of carbon dioxide equivalents, 4.6 percent or 3.7 million tons below the levels of 2013. These emissions stem from the sectors of energy and industry (44.4 percent), transport (28.5 percent), buildings (10.0 percent), and agriculture (10.4 percent). The average temperature increase in Austria is already two degrees Celsius, with temperatures in the winter months of 2015–16 accounting for the second warmest winter in the nearly 250-year-old Austrian history of measurement. A total of 48.22 million tons were emitted by sectors not covered by the emission trading system, which is 3.9 million tons below the targets set by the Climate Change Act (Klimaschutzgesetz), which translates the target of the European Union’s (EU) Effort Sharing Decision for the period 2013–20 (Federal Law Gazette I 106/2011). In 2014, total emissions were 3.2 percent below 1990 levels. Recent decreases were mainly due to emission reductions in the energy production sector and a mild winter, resulting in a lower demand for heating. In 2016, Austria held a 33 percent share of renewable energy sources in gross final energy consumption—1 percent short of its EU 2020 Climate and Energy Package target. The final energy consumption of 1,063 quadrillion joules—made possible because of warm winter months—was only slightly above the target of 1,050 quadrillion joules as envisaged under the Energy Efficiency Act (Federal Law Gazette I 72/2014). (2) International Meetings and Conferences in Austria In January, the preparatory meeting of the twenty-fourth Organization for Security and Co-operation in Europe (OSCE) Economic and Environmental Forum—Good Governance in the OSCE Area: Reinforcing Security and Stability through Co-operation—investigated the complex challenge of governing natural resources and managing diverse environmental issues effectively, especially in view of a growing global population and cross-border environmental challenges. The concluding meeting was held in Prague. In February, the third international conference on growth in transition entitled ‘How Constraints Make Us Grow’ tackled questions of growth and an alternative, sustainable, economy. Participants discussed ways to decouple economic growth and resource use and envisioned future methods for approaching growth, prosperity, and quality of life in the face of limited resources. In April, the first Model United Nations Conference on Environment took place in Vienna. Organized for youth interested in the work of the United Nations Environment Programme, this educational simulation gave participants an opportunity to discuss issues of environment, sustainability, biodiversity, and international climate agreements on an international and scientific scale and to develop their ideas in an international resolution. The stakeholder workshop of the MARS project, which stands for Managing Aquatic Ecosystems and Water Resources under Multiple Stresses, brought approximately sixty river basin managers, officials under EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy, European Environment Agency representatives, external experts, and aquatic scientists to Vienna. They discussed the challenges of multiple pressures, such as pollution, floods, droughts, and river bank alterations, and their unpredictable interactions. A better understanding could contribute to improving river basin management plans under EC Directive 2000/60. In September, the International Atomic Energy Agency Scientific Forum for the Sustainable Development Goals (SDGs) took place in Vienna. The session explored topics related to the role of nuclear energy in the future as a rather low-carbon energy source, in achieving SDG 7 (affordable and clean energy), SDG 9 (industry, innovation, and infrastructure), and SDG 13 (climate action) and how nuclear and isotopic technology can protect the environment, help manage natural resources, and achieve SDG 6 (clean water and sanitation), SDG 14 (life below water), and SDG 15 (life on land). (3) International Agreements Austria signed the Paris Agreement on 22 April 2016 and deposited its ratification instrument on 5 October 2016 with the Secretary-General of the United Nations in New York (Federal Law Gazette III 197/2016). Austria is committed to reducing its greenhouse gas emissions jointly with the other European Union (EU) member states as set out in the European Council conclusions of 24 October 2014 and in line with the EU’s intended nationally determined contributions (INDC) of a 40 percent reduction by 2030 (compared to 1990). The proposed effort-sharing regulation for non-ETS sectors suggests a 36 percent reduction target for Austria (compared to 2005). In regard to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) proceedings against Austria and following Decision V/9b (2014) of the Aarhus Convention Compliance Committee, which found the implementation of Article 9(3) of the Aarhus Convention regarding access to justice for the public in administrative or court proceedings in environmental matters insufficient, Austria submitted its third and final report on 21 December (Doc. ECE/MP.PP/2014/2/Add.1). In October, in its second progress review, the Compliance Committee invited Austria to provide evidence that it had fulfilled its obligations. Austria’s report describes the legislative processes underway by its provinces and the work of the task forces without giving a concrete time plan for the implementation of access to justice rights. The decision on Austria’s compliance or, more likely, continued non-compliance is expected to be made in 2017. (4) Regional and Bilateral Relations In February, during the third International Commission for the Protection of the Danube River Ministerial Meeting in Vienna, fourteen Danube basin countries and the European Commission adopted the Danube Declaration 2016 within the EU Strategy for the Danube Region (EUSDR). The declaration focuses on transboundary challenges with regard to the environment and risk of floods. Two management plans for the Danube River Basin with measures to improve the purity and ecosystems of rivers, lakes, and groundwater and to manage the risk of floods were endorsed and will be implemented by 2021. Innovative Flows: Water, Knowledge and Innovation in the Danube Region was the topic of the fifth Annual Forum of the EUSDR in November in Bratislava, Slovakia. Conference attendees discussed the role of innovation in water management. A presentation on the scientific support to the Danube Strategy initiative by the Joint Research Centre of the European Commission completed the program. In September, the Danube Commission hosted the seventh follow-up meeting of the Joint Statement on Inland Navigation and Environmental Sustainability in the Danube River Basin. The meetings contemplated measures to improve: interdisciplinary planning processes, the minimalization of impacts of engineering interventions, and the application of environmental impact assessments with public input. (5) Austrian Environmental Policy The new Austrian Forest Strategy 2020 + (Waldstrategie 2020 +) will serve as the basis for sustainable forest management that secures the multifunctionality of Austrian forests for future generations. Approaches to climate change, biodiversity, societal functions, productivity, and economic aspects will be further developed in subsequent meetings. (6) Adoption of National Laws and Regulations on Matters of International Significance No activity during the past year. (7) Court Decisions on International Environmental Law No activity during the past year. (8) Relations with the EU (A) Implementation of EU Legislation Carbon storage is not allowed in Austria. However, in order to completely transpose the Directive 2009/31 on the Geological Storage of Carbon Dioxide, the legislator defined ‘carbon dioxide stream’ in the Mineral Fuels Resource Law (Mineralrohstoffgesetz) in view of permitted carbon capture (Federal Law Gazette I 95/2016). Accompanying EU Regulation 2013/347, the Energy Infrastructure Act (Infrastrukturgesetz) provides the legal framework for the effective handling of proceedings regarding infrastructure projects of common (European) interest (PCI) (Federal Law Gazette I 4/2016). The legislation aims at speeding up the admission process for energy PCIs, such as big gas pipelines or high-voltage overhead lines. The federal minister of science, research and economy is instituted as the Energy Infrastructure Authority. As a one-stop shop, he is in charge of the permit granting process, which is divided into a pre-application stage and a statutory permit granting stage. In the first mandatory pre-application procedural stage, the project is discussed with the public and the documents to be submitted are determined. The second stage is conducted in accordance with the Energy Infrastructure Act or with the (newly introduced) sixth section of the Environmental Impact Assessment Act (EIA Act). The proceedings may not last longer than 3.5 years. Transparency and public participation, regarded as being crucial for the success of energy infrastructure and thus the energy transition on the EU level, are realized in the early stages of the proceedings especially. Federal Law Gazette I 4/2016 also implemented last year’s ruling in the Court of Justice of the European Union (CJEU) on 16 April 2015. Case 570/13 (Gruber) strengthened the rights of neighbours in environmental impact assessment (EIA) proceedings. The revised EIA Act now statutorily grants neighbours, just like environmental non-governmental organizations (NGOs), the right to appeal a negative EIA screening decision. Preventing genetically modified organisms (GMOs) from entering Austria is the purpose of the Genetic Cultivation Prohibition Framework Act (GentechnikAnbauverbots-Rahmengesetz) (Federal Law Gazette I 93/2015). With this law, Austria makes use of the possibility granted by EC Directive 2015/412 Regarding the Possibility for the Member States to Restrict or Prohibit the Cultivation of GMOs in Their Territory and prohibits GMO cultivation in a constitutional rank. Coordination by the GMO Advisory Council (GentechnikBeirat) is crucial, as the nine provinces—not the federal body—are competent to enact implementing legislation. (B) Infringement Proceedings For about a decade, a small hydropower plant project has kept Austrian and European authorities busy. At issue was the authorization of a hydropower plant on the SchwarzeSulm, the construction of which would have caused the deterioration of the river’s water quality on a stretch of about eight kilometres. In Case 346/14, Commission v Austria, the CJEU confirmed member states’ discretion in determining grounds for a derogation from the prohibition of deterioration (Article 4(3) and (1) of EC Directive 2000/60). Acknowledging that the river is of high ecological importance, the province governor, in balancing the pros and cons of the project, found an overriding public interest in the construction of the power plant. As the aim of the transition to clean energy outweighed concerns regarding the water quality, he granted a derogation. The court was satisfied that the governor did ‘not merely refer in the abstract to the overriding public interest in the production of renewable energy but, rather, based its decision on a detailed and specific scientific analysis of the contested project.’ Austria’s case before the General Court, Case T-356/15, against EU Commission-approved state subsidies for the construction and operation of a new nuclear power plant in Britain, Hinkley-Point C, is still pending. In parallel, two Austrian NGOs, Ökobüroand Global 2000, communicated to the Aarhus Convention Compliance Committee the failure of the EU to allow NGOs to challenge state aid decisions. The Aarhus Regulation implements Article 9(3) of the Aarhus Convention but excludes state aid decisions. The complaint has been declared preliminarily admissible, and a hearing in Case ACCC/C/2015/128 is scheduled for 2017. (C) Judicial Decisions Correspondence between the European Commission and a member state can constitute environmental information. With Decision BVwG W127 2007978-1 (10 November 2016), the Federal Administrative Court annulled the Federal Chancellery’s denial of an environmental NGO’s request to access documents of infringement proceedings initiated by the European Commission against Austria for failure to transpose EU secondary law. In the court’s view, the infringement proceeding’s complaints, letters of formal notice, and replies can constitute environmental information. The case was referred back to the competent authority. Similarly, the Highest Administrative Court decided that not only objective data but also subjective representations in administrative decisions, affidavits, opinions, and so on, can qualify as environmental information (VwGH, Ra 2015/07/0123, 26 November 2015). The court further clarified that sovereign administration and non-sovereign administration, as well as acts by private persons possibly affecting the ecological balance, can also constitute environmental information. In a preliminary ruling regarding EIA proceedings, the CJEU in Stadt Wiener Neustadt clarified that a national provision that limits the possibility for annulment of an approving decision taken in breach of the obligation to assess the effects of a project on the environment to a period of three years is in conformity with EU law (Case C-348/15, 17 November 2016). After all, reasonable time limits for bringing proceedings are in the interests of legal certainty and protect the individual and the administrative authority concerned. However, a national provision—such as paragraph 46(20)4 of the EIA Act—that includes the legal fiction that the approval for a project for which there is no longer a risk of annulment must be regarded as lawfully authorized violates Article 1(5) of the EIA Directive and is precluded by EU law. Also in the field of EIAs, but with a view to party rights, the Highest Administrative Court differentiated between associations and registered environmental NGOs (in VwGH Ro 2016/04/0001, 17 February 2016). Associations that are not registered as environmental NGOs pursuant to the EIA Act do not have legal standing in EIA proceedings without showing sufficient interest in the proceedings. The requirement to register as an environmental NGO under national law constitutes a precondition for members of the ‘public concerned’ (Article 1(2) lit of the EIA Directive) to be deemed as having an interest and to be granted access to a review procedure before a court. Also, the Highest Administrative Court once again confirmed that Article 9(3) of the Aarhus Convention cannot be directly relied upon by members of the public to challenge decisions, in concreto pursuant to the Water Act (Wasserrechtsgesetz) (in VwGH, Ro 2014/07/0028, 30 June 2016). Rather, it would be up to the national legislator to enact transposing provisions that grant access to justice as envisaged by EU law and the Aarhus Convention. The Constitutional Court did not grant environmental NGOs the right to challenge a zoning regulation and development plan (in VfGH V87/2014-11, 14 December 2016). Since the environmental NGOs were not directly affected in their own subjective rights (a specific legal theory under Austrian public law), they lacked legal standing to initiate the specific proceeding. The constitutional provision of Article 139 B-VG that provides the basis for the proceedings to challenge administrative regulations cannot be interpreted in light of Article 9(3) of the Aarhus Convention. A private landowner sought to oppose hunting on his property ‘on fundamental grounds.’ The Constitutional Court dismissed his complaint against the legal obligation to allow hunting on his private property (in VfGH, G 7/2016, 15 October 2016). While the court agreed that the obligation interfered with his right to the peaceful enjoyment of his property, it contrasted with the situation from the European Court of Human Rights’ case law. The population of hoofed game in Austria is very high, and game browsing heavily affects the forests, in particular, young trees. Active management, including measures to reduce the population of wild game, is necessary to protect the forests. Austria is even obliged under the international Alpine Convention to allow mountain forests to regenerate. Thus, the legal obligation to allow hunting on property (except on enclosed properties) in the public interest places a constitutionally proportionate burden on landowners. In light of policy measures to encourage clean energy, installation of small-scale photovoltaic systems has become popular among Austrian homeowners. Installed on rooftops, their light emissions may, however, constitute a nuisance to neighbours. Based on Civil Code 364(2) ABGB, the Supreme Court granted the neighbour injunctive relief because of light emissions caused by a photovoltaic system (in OGH, 4OB43/16a, 30 March 2016). Neighbours do not have to accept more than customary local emissions that substantially obstruct the use of their property. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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Published: Dec 28, 2017

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