Dr. Fritz Kroiss

1. “Green” Case Law in Austria Civil, criminal and administrative environmental law provisions and their relevance for Green NGOs Dr. Fritz Kroiss

2. Civil Law in Austria I • Action for Injunction in the case of emissions • Exception for plants with a permit. • § 364 and 364a ABGB (Austrian Civil law code) • In the case of permitted plants only damage compensation. • Very few cases • Not used by NGOs because of court fees and cost risks

3. Mochovce & Temelin Cases • The Austrian Green Politician „Eva Glawischnig“ filed an Action for Injunction against the operator of the Mochovce Nuclear Power Plant in Slovakia • The Government of Upper Austria filed an Action for Injunction against the operator of the Temelin Nuclear Power Plant in Czech Republic • These actions were not successful so far...

4. Civil Law in Austria II Environmenal Liability: • No comprehensive legislation in Austria so far. Drafts from the 1990s were not passed. • New law under preparation to implement EU Environmental liability Directive. • Sectoral provisions on Liability will remain in force. • Not used by NGOs.

5. Cases: Liability for contamination from (waste) disposal • Several cases deal with the question who should pay for the clean up • Article 31 para 3 of the Austrian Water act • Legal or illegal in the sense of environmental permitting is not relevant! • What counts is the threat of the groundwater • If the polluter cannot be identified the land owner has to pay the clean up costs!!!

6. Criminal law – European Dimension I • Commission Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law COM (2001) 139, adopted by the Commission on 13 March 2001.

7. Criminal law – European Dimension II • Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law • The European Commission decides to take action in the Court of Justice • The Advocate General of the European Court of Justice delivered his conclusions on 26/05/2005

8. Criminal law – European Dimension III • The Advocate General recommends to declare the Council Decision as in breach of the EC treaty. • Decision of the ECJ of 13.9.2005 (Rs C-176/03) declared Council Decision as null and void. • Will the EC Commission go on with pushing through her proposal through the legislative procedures after the ECJ will have decided?

9. Austrian Dimension I • Convention on the Protection of the Environment through Criminal Law (Strasbourg, 4.XI.1998). • Convention requires three ratifications for its entry into force. Estonia is the only country which has ratified so far. • Nevertheless Austria amended its criminal code to meet the requirements of the Convention

10. Austrian Dimension II • Art. 180, Art. 181 to 181e, 182, Art. 183 to 183b of the Austrian Criminal Code • Largely amended in 2006 • What constitutes an act of criminal offence? (both deliberate and negligent!) • impairment of the environment (General), • treatment and shipment of waste impairing the environment • Operation of industrial plants impairing the environment • etc.

11. Criminal law cases in Austria • Number of complaints declined from 332 in 1994 to 207 in 2002 • Number of sentenced persons is between 19 (1995) and 35 (1997) • NGOs normally do not use criminal law as a tool in campaigning • Administrative offence cases are much higher and much more relevant

12. Administrative Law in Austria I • Law on Environmental Impact Assessment is the most prominent piece of Environmental law in Austria • Since 2005 NGOs have legal standing in EIA procedures • NGOs have to register at the Ministry for Environment if they want to participate in EIA procedures

13. Administrative Law in Austria II • The Citizen Group (Bürgerinitiative) under Austrian EIA legislation: • Minimum 200 persons from respective Municipality or neighboring Municipality • Signing one identical statement • Takes part in the EIA procedure with legal standing • Can file complaints even to the Administrative and the Constitution Court

14. Administrative Law in Austria III • Since a few years Air Protection Legislation has high degree of Public Attention, as Austria is exceeding some air related environmental quality standards (“imissions”), e.g. dust (“PM 10”) • Waste Legislation is not very present in the media, but a highly relevant for companies because of costs

15. Administrative Law in Austria III • Nature Protection Legislation became an issue since Austria´s EU Accession in 1995: The Natura 2000 Protection System of the EU brought about major improvements in the field of Nature Conservation, which provoked opposition of land owners and farmers • Several infringements procedures in front of the European Court of Justice, many of them brought to the Commission by NGOs.

16. Environmental Law Service of OKOBURO • Most requests sent to OKOBURO concern EIAs for road projects • OKOBURO receives financial support from the Austrian Ministry for Environment to maintain Environmental law service • OKOBURO provides information texts on environmental legislation on its Webpage and answers individual requests

17. Natura 2000 case I • Magna Real Estate (Mr. Frank Stronach) purchased land of 250 ha in the municipality of Ebreichsdorf in 1996 to develop the project of a so called thematic park. This leisure park should comprise a horse racetrack plus a 200 m high building on the shape of a globe. • The site was in the process of designation as a Natura 2000 site.

18. Natura 2000 case II • EC Commission was informed about the case by several NGOs and citizen’s groups. • In November 2000 the Commission sent a formal letter of inquiry to the Austrian Government. In this letter the Commission stated that the definition of the boundaries of the respective Natura 2000 site had not been performed in accordance with scientific criteria. • Parts of the land, which should have been added to the Natura 2000 zone, were excluded from it to allow the construction of the project possible.

19. Natura 2000 case III • In 2001 necessary permits were issued, ignoring the ongoing investigations of the EU Commission on the case. • An expert commission put together by the Austrian Government convinced the EU Commission to stop investigations and to close the case. • The so called MAGNA RACIO horse race tracks opened on 4th September 2004.

20. EIA case I • Spielberg Project: Motor race track in Styria • Group of investors want to extend and upgrade the race track • Problematic for local population because of noise • Positive EIA decision from 1st instance authority

21. EIA case II • Neighbors bring in complaint against the 1st instance decision • Appeal body (“Umweltsenat”) refuses EIA approval • Government amends EIA act to push through the project • Project modifications • Preparations for new EIA ongoing

22. Conclusions • EIA and environmental permitting most relevant for NGOs • Legal standing for NGOs and Citizens´ groups (Bürgerinitiativen) in EIAs • Political pressure often more effective then legal remedies • Environmental Law Service of OKOBURO to support small NGOs very effektive

23. Contacts • ÖKOBÜRO: thomas.alge @oekobuero.at www.oekobuero.at www.justiceandenvironment.org • Umweltbundesamt: fritz.kroiss@umweltbundesamt.at www.umweltbundesamt.at