Austria: Automatic permits for certain energy infrastructure projects

In this respect, it is particularly important that investors receive planning and legal certainty as quickly as possible with regard to the feasibility of their projects in Austria.

Location Development Act

The proposed new Location Development Act aims to regulate a special selection procedure for individual, location-relevant projects, as well as special measures to speed up the permitting procedures for these projects, because existing administrative procedures – especially those relating to environmental impact assessments – can be very time consuming. The process-accelerating measures are a lex specialis to:

• the General Administrative Procedure Act;
• the Administrative Court Proceedings Act; and
• the Environmental Impact Assessment Act.

A location-relevant project pursuant to Section 2 of the Location Development Act must undergo an environmental impact assessment as per Sections 3 and 3a of the Environmental Impact Assessment Act (for further details please see "Will new state targets lead to reduced environmental protection?"). In addition, a permit application must have already been made to the competent authority. Special public interest for a location-relevant project is assumed if the project and its implementation are expected to have extraordinarily positive consequences for the business location, such as:

• increased supra-regional and strategic importance;
• significant investment;
• an expected increase in economic performance; and
• the transfer of knowledge, technology and innovation to Austria.

The Location Development Act sets out the following steps for determining a project as location-relevant:

• Applications for the confirmation of the special public interest in location-relevant projects may be submitted to the federal minister for digital and economic affairs by the competent provincial governor or a member of the federal government. For infrastructure projects which cross the border of one or more Austrian provinces (eg, electricity grids), an application must be submitted by each competent provincial governor.
• The documents must be forwarded to the competent federal minister for the assessment of whether a location-relevant project is in Austria's public interest. The federal minister must prepare a reasoned opinion for each individual case and submit it to the federal minister for digital and economic affairs within four weeks.
• The federal minister for digital and economic affairs must prepare the documents, taking into account the comments received, and submit them to the location development advisory board for evaluation.
• The location development advisory board is established in order to assess location-relevant projects and make recommendations as to whether the location-relevant project is in Austria's public interest. The location development advisory board must assess and submit the recommendations in justified and written form to the federal minister for digital and economic affairs within four weeks.
• At least once every six months, the federal government must decide, based on all submitted documents from the federal minister for digital and economic affairs, whether to confirm Austria's special public interest in the case of well-founded recommendations on location-relevant projects. The confirmation will be issued for a limited period of 20 years and the location-relevant project will be laid down in an ordinance.

Automatic approval

If the permit application for a project in which Austria's public interest has been confirmed has not been rejected or approved within one year of the announcement of the location-relevant project in the respective ordinance, the following consequences foreseen in Section 11 of the Location Development Act will apply:

• The relevant procedure in accordance with other material laws will be ready for a decision.
• The preliminary investigation will be closed.
• The project will be approved in accordance with the Environmental Impact Assessment Act.

In fact, the Location Development Act is intended to 'automatically' approve location-relevant projects if the authorities fail to make a timely decision. In general, a decision should be issued by the authority within six months. However, after a period of approximately 18 months (including the period for identifying a project as location-relevant), major projects which are expected to have extraordinarily positive consequences for the business location and must undergo an environmental impact assessment will be deemed approved.

Comment

The proposed act will certainly have a major impact on projects in the energy sector, such as grids or the construction of large power plants. While the economy rejoices over faster legal security, non-governmental organisations and lawyers have expressed doubts about the maintenance of the standard of other material laws and the legal admissibility of the government project.

The legislative proposal remains under evaluation.

This article was first published on International Law Office.

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