Access to Justice in Austria : One step forward, two steps back

By Katharina Scharfetter, Priska Lueger and Gregor Schamschula, Ökobüro

Austria takes first steps towards implementing the right of Access to Justice 20 years after signing the Aarhus Convention

The Aarhus Convention was ratified by Austria in 2005. However, its Article 9(3), granting access to justice in environmental matters, has (apart from EIA, IPPC and Seveso procedures) not been implemented yet. The Aarhus Convention Compliance Committee (ACCC) and Meeting of the Parties have repeatedly criticised this failure to comply and Austria has been obliged to submit an implementation report and timetable before October 2018. Due to these international reprimands and case-law on an EU and national level, action by the Austrian legislator was inevitable. Therefore, in early summer of 2018, the government published its first attempt to implement the provisions in national law.

The so-called Aarhus Participation Act (“Aarhus-Beteiligungsgesetz”) is – contrary to its short title – not a uniform law on legal remedies in environmental matters, but merely a corresponding amendment of the Water Rights Act (WRG), the Waste Management Act (AWG) and the Air Pollution Control Act (IG-L).

While this legislative initiative, following an ECJ ruling, is very welcome in principle, in many respects the draft does not go far enough. Firstly, legal protection is limited to only those areas covered by EU law. This disregards the fact that the Aarhus Convention as an international treaty refers to environmental law in general. Secondly, there are restrictions within these areas that are hardly compatible with the Aarhus Convention. For example, the right of environmental organisations to appeal is limited to water law proceedings regarding projects with potentially considerable negative effects.

On the positive side, in the field of emissions control, persons directly affected and recognised environmental organisations not only have the right to apply for the adoption or modification of programmes and plans but can also request that the relevant public authority adopts the specific measures contained in those programmes. If these requests are not complied with, an official decision must be issued, which can be challenged by the applicants before the courts. It is, however, astonishing that in the fields of water and waste management, there is no possibility to seek judicial review of plans and programmes. This is despite the CJEU’s ruling in the Protect case (20.12.2017, C-664/15) that, according to the Aarhus Convention and the Charter of Fundamental Rights, environmental organisations must have access to a court to challenge acts and omissions that violate provisions of EU environmental law in general.

Since areas such as nature conservation, hunting and fishing fall within the competence of the provincial legislator, the implementation of Article 9 (3) in these areas is their responsibility. At the beginning of November 2018, Styria was the first federal state to present amendments to the relevant laws. As with the federal implementation, the law in Styria also limits itself to acts relating to EU law.

A mix result for environmental organisations

According to the latest amendment introduced on the day of its approval, appeals submitted by environmental organisations in water and waste procedures shall not be granted suspensive effect by default, contrary to the general rule applying to appeals in Austria. The responsible authority may grant the appeal suspensive effect upon request of the appealing environmental organisation, if a “disproportionate environmental risk” is to be expected.

By shifting the burden of proof of the “disproportionate environmental risk” to environmental organisations before the appeal proceeding even starts, the rule of law and the safety of the environment are under threat.

Changes to the EIA Act threaten environmental organisations

In addition to the Aarhus Participation Act, the legislator has made life difficult for environmental organisations elsewhere. An amendment to the Austrian Environmental Impact Assessment Act (UVP-G) was approved by the Austrian National Council on October 25th and will enter into force within the next few weeks.

According to this amendment, the right to participate and challenge decisions in environmental procedures will be limited to environmental organisations with a minimum of 100 legal members. Applications to be recognised as entitled environmental organizations must provide adequate proof of their number of members.

The amended provision contains the central requirements for environmental organisations to obtain participatory rights in environmental procedures. Indeed, various other environmental laws refer to this provision. Therefore, the amendment will not only affect EIA procedures, but also other procedures under the Water Rights Act, the Air Pollution Control Act, the Waste Management Act and other upcoming changes to the Nature Protection Acts, Fishery- and Hunting Acts, etc.

In Austria, there are currently 57 registered environmental organisations, only 30 of which are active in the entire Republic of Austria (the scope of action of the others is limited to certain regions). Since a large number of environmental organisations will presumably lose their official recognition and therefore their participation and access to justice rights, ÖKOBÜRO considers this amendment to be a clear violation of EU law and the Aarhus Convention.