Austria: Parliament Adopts Comprehensive Environmental Package

On 25 October 2018 Parliament adopted a new comprehensive environmental package comprising:

  • the Aarhus Participation Act;1
  • an amendment to the Environmental Impact Assessment Act;2 and
  • an amendment to the Federal Environmental Liability Act.3

Several other environment-related legislative initiatives are also underway at present (see, for example, "Will new state targets lead to reduced environmental protection?").

Although the amendments have yet to be published in the Federal Law Gazette, the new environmental package is expected to come into force by the end of 2018.

What is planned?

Aarhus Participation Act

The Aarhus Participation Act continues the implementation of the Aarhus Convention,4 based on the European Court of Justice's decision in Protect.5 The act aims to give the public concerned a say in approval procedures and subsequent review rights.

As a first step, the implementation will take place via:

  • the Waste Management Act;6
  • the Air Emission Protection Act;7 and
  • the Water Act.8

Implementation will also be required via several other federal laws (ie, all laws with an environmental impact, including those which must be enacted by a federal state, such as the nine nature conservation laws).

The planned amendment will extend considerably the rights of recognised non-governmental organisations (NGOs) committed to protecting the environment within the meaning of Section 19(7) of the Environmental Impact Assessment Act.9

Under the Waste Management Act, recognised NGOs are entitled to public participation rights in:

  • Seveso plants;10
  • integrated pollution prevention and control treatment plants;11 and
  • incineration and co-incineration plants.

With the planned amendment, recognised NGOs will be given the additional right to lodge subsequent complaints in the event of violations of EU environmental protection regulations – particularly the EU Revised Waste Framework Directive (2008/98/EC) – when normal treatment facilities are approved for the first time or substantially changed (with the exception of excavated soil landfills).

With the amendment of the Water Act, the legal position of recognised NGOs, as members of the public, will be extended in water law approval procedures undertaken in accordance with the EU Water Framework Directive (2000/60/EC). If a project could have a considerable negative impact on the condition of a water body, recognised NGOs will be granted participation and monitoring rights. If negative effects can be excluded, recognised NGOs will have only a right of review.

The amendments to the Air Emission Protection Act will enable recognised NGOs to submit an application for the establishment or completion of a national programme of effective measures to comply with the thresholds of the EU Air Quality Directive (2008/50/EC).

Environmental Impact Assessment Act amendment

Austria has yet to transpose12 EU Amending Directive 2014/52/EU.13 The Environmental Impact Assessment Act amendment will implement this directive,14 as well as some of the measures of the new government programme for 2017 to 202215 in order to accelerate the procedure (eg, the conclusion of the Environmental Impact Act investigation procedure will be expedited).

Further, the Environmental Impact Assessment Act amendment provides stricter rules as to who can intervene as a recognised NGO:

  • Only NGOs with 100 members or more will be deemed to be recognised within the meaning of Section 19(7) of the act.
  • Club associations must comprise at least five member associations.
  • NGOs must prove every three years that they still meet the recognition requirements

These changes aim to halt the uncontrolled growth of recognised NGOs. However, NGOs have expressed concerns that the requirement to have at least 100 members is too restrictive.

Federal Environmental Liability Act amendment

The Federal Environmental Liability Act amendment16 stems from the European Court of Justice's decision in Folk17 and certain infringement proceedings against Austria.18 According to the European Court of Justice, the current exclusion of approved normal operations from the scope of the act's application contravenes the EU Environmental Liability Directive (2004/35/EC).

The Environmental Liability Directive excludes from the concept of environmental damage that which results from activities permitted under:

  • Sections 6(3), 6(4) and 16 of the EU Habitats Directive (92/43/EEC);
  • Section 9 of the EU Birds Directive (2009/147/EC); or
  • Section 4(7) of the EU Water Framework Directive (2000/60/EC).

However, there is no general exception to the act's scope for purely national authorisations.

To avert liability claims resulting from nationally permitted activities, the EU Environmental Liability Directive provides for the possibility of a permit defence (for nationally permitted installations) or a state-of-the-art defence (ie, an exclusion of liability due to development risk).

The permit defence and the state-of-the-art defence are not provided for in the Federal Environmental Liability Act or the amendment. Rather, the amendment merely clarifies the term 'water damage', which corresponds literally to the definition provided for in the directive. Thus, permits that are not based on Section 4(7) of the EU Water Framework Directive will still be worthless due to the lack of permit defence.

However, the Federal Environmental Liability Act amendment aims to bring the group of persons entitled to file a law.

Comment

With the new environmental package, the legislature has attempted to manage the difficult act of balancing the necessary legal adaptations of administrative procedural law with EU law and creating a business environment that is nevertheless competitive. In particular, the possible delays of permitting procedures, which are detrimental to businesses' needs, should be reduced.

Footnotes

1 Further information is available here.

2 Further information is available here.

3 Further information is available here.

4 The Aarhus Convention was ratified in Austria by BGBl III 2005/88.

5 20 December 2017, C-664/15.

6 Federal Law Gazette, BGBl I 2002/102, latest version BGBl I 2018/44.

7 Federal Law Gazette, BGBl I 1997/115, latest version BGBl I 2017/58.

8 Federal Law Gazette, BGBl 1959/215, latest version BGBl I 2018/44.

9 Federal Law Gazette, BGBl 1993/697, latest version BGBl I 2017/111.

10 Plants within the scope of the EU Control of Major-Accident Hazards involving Dangerous Substances Directive (2012/18/EU), which amended and subsequently repealed the EU Seveso II Directive (96/82/EC).

11 Plants within the scope of the EU Industrial Emissions (Integrated Pollution Prevention and Control) Directive (2010/75/EU).

12 Infringement procedure (2017/0281) for the late transposition of the EU Environmental Impact Assessment Amending Directive (2014/52/EU).

13 EU Directive 2014/52/EU amending EU Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment.

14 The need for implementation is limited, as many of the provisions of EU Directive 2014/52/EU have already been implemented by the current Environmental Impact Assessment Act. Therefore, the amendment will make mainly textual adaptations and clarifications.

15 Further information is available here.

16 Federal Law Gazette, BGBl I 2009/55, latest version BGBl I 2013/97 ("B-UHG").

17 European Court of Justice, 1 June 2017, C-529/15, Folk.

18 Infringement proceedings 2017/2118 for the infringement of Articles 2(1)(a) to (c), Articles 2 (9), and 2(13) to and the first sub-paragraph of Article 12(1) of the EU Environmental Liability Directive (2004/35/EC).

This article was first published on International Law Office

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions