Amendment to the K-ROG: effects on wind energy in Carinthia

The most important of these are:

• Permit restriction (Bewilligungsbeschränkung): Until 21 February 2026, wind turbines may only be approved to a limited extent under state law.[2] [3]
• Building ban (Bausperre): Until 21 February 2026, no wind turbines may be built in the whole of Carinthia.[4]
• Area restriction (Flächenbeschränkung): Wind turbines may only be built on areas designated in the new Sectoral Programme (Sachgebietsprogramm).[5]

The chosen date is unlikely to have been determined by chance, as the acceleration areas of RED III must also be designated by 21 February 2026.[6]

According to the legislative text, the aim of the building ban is to create the spatial planning basis for the mandatory implementation of Union law,[7] to designate suitable areas and to prevent measures that could hinder or impair the state government's planning for wind turbines.[8]

In practice, the new provisions lead to considerable uncertainties and restrictions for investors and project developers. Therefore, the following remarks focus on the practical effects of the amendment and the associated legal challenges.

Legal assessment

The (temporary) building ban does not provide for any exceptions, unlike the restriction on permits.[9] In our opinion, this raises constitutional concerns.

Building bans are a common legal instrument in the spatial planning laws of the federal states to (i) secure planning objectives, and (ii) temporarily suspend the permitting of construction developments or other measures.[10] However, since the right to property and other fundamental rights – such as freedom of occupation and the principle of objectivity – are constitutionally guaranteed, such interferences are only permissible within the limits of the constitution. An absolute building ban would be unconstitutional.[11]

In our opinion, the Carinthian amendment makes it difficult to justify that an unconditional building ban is objectively warranted or in the public interest, as it also blocks developments that do not conflict with the planning objectives. Therefore, under a constitutionally compliant interpretation, developments that do not conflict with the planning objectives are generally exempt from the building ban. In the respective permitting procedure, it must be examined whether the development significantly hinders or impairs the planning objectives and thus contradicts the objectives of the building ban.[12]

Furthermore, the area restriction on designated areas is effectively equivalent to an unconditional building ban. Since there are currently no areas designated by a new Sectoral Programme, a de facto absolute building ban is in place. This is also constitutionally problematic, in our opinion. A constitutionally compliant interpretation of the restriction leads to the conclusion that:

• wind turbines can also be erected outside designated areas – until the new Sectoral Programme comes into force – if they do not conflict with the objectives of the construction ban; and
• the area restriction only takes effect after the areas have been designated by a new Sectoral Programme.

If no new Sectoral Programme enters into force by 21 February 2026 and no new areas are designated, the restrictions would, in our view, continue to be inapplicable.

Conclusion and outlook

The current provisions result in the construction of wind turbines in Carinthia being severely restricted until 2026. The combination of permit restrictions, building bans and the lack of designated areas considerably impedes investments and planning. The unconditional building ban is particularly problematic, as it also blocks developments that do not conflict with the planning objectives without a constitutionally compliant interpretation.

Looking ahead, it is crucial that the regional government quickly presents a new Sectoral Programme with clearly designated areas. This is the only way to ensure legal certainty and enable the orderly expansion of wind energy. Until then, the legal situation remains unclear and the development of wind energy in Carinthia continues to be significantly hindered.

author: Valentin Dignös