Austrian Federal Administrative Court confirms: no direct applicability of EU Nature Restoration Regulation in permitting procedures

1. Introduction

The Federal Administrative Court (BVwG) has, for the first time, addressed the question of whether the EU Nature Restoration Regulation (NRR) applies in permitting procedures (BVwG 9 May 2025, W270 2279107-1).

The NRR obliges EU Member States to take measures to restore nature in certain areas. The main instrument for this is the national restoration plans (NRP), which must specify the areas to be restored and the measures to be taken. Examples of such measures are listed in Annex VII of the NRR, such as converting fallow land into natural landscapes. The NRR also contains so-called non-deterioration obligations, which are intended to prevent the condition of certain areas from worsening. These prohibitions are to be implemented through measures in the NRP, for example, by introducing specific permitting requirements into national law.

Although the NRR does not yet contain sufficiently concrete requirements to serve as a legal standard for the approval of projects, it is already being used as an argument against projects in proceedings. This was also the case recently in a procedure before the BVwG concerning a wind farm in Carinthia.

2. Decision of the BVwG

In the case at hand, an environmental organisation argued that the planned project violated the NRR. However, the BVwG clarified that, at present, no directly applicable permitting requirements can be derived from the NRR. While the NRR is directly applicable EU law that, in principle, can also be invoked by recognised environmental organisations in proceedings, the non-deterioration obligations and any permitting requirements that might be derived from them can only be considered after the national restoration plan has been finalised. Until then, the NRR only contains targets and general obligations to strive for these targets. As a result, there are currently no specific duties to examine, investigate or assess in permitting procedures based on the NRR.

3. Commentary

The BVwG's decision is in line with the previous legal view that, despite its entry into force, the NRR is not yet directly applicable in permitting procedures. However, a more nuanced approach to the non-deterioration obligations would be desirable.

The BVwG essentially distinguishes between two types of non-deterioration obligations in Article 4 of the NRR:

• According to paragraph 11, subparagraph 2, Member States must take measures to ensure that the condition of areas where a good status and sufficient quality of habitats have been achieved through restoration measures does not significantly deteriorate.
• According to paragraph 12, Member States should strive, at the latest by the publication of the national restoration plans, to take measures necessary to prevent significant deterioration of the condition of areas where the habitat types covered by the NRR are present in good condition.

Regarding the direct applicability of these prohibitions, the BVwG summarises that the requirement in paragraph 11 becomes relevant only after the national restoration plan has been finalised. No binding permitting requirement can be derived from paragraph 12 due to its merely "endeavouring" character.

These considerations are generally understandable but could be further differentiated. It should be clarified that both non-deterioration obligations (i) only cover significant deteriorations and (ii) are linked to an already achieved good status.

For the applicability of paragraph 11, subparagraph 2 NRR, the mere finalisation of the national restoration plan is not sufficient, although the BVwG leaves open when exactly this point is reached. Instead, the prohibition only applies once (i) a good status and (ii) a sufficient quality of the habitats have actually been achieved through restoration measures. These conditions will generally only be met after the publication of the national restoration plan.

Paragraph 12 NRR could – if a non-deterioration obligation can be derived from its "endeavouring" character at all – apply at the earliest (i) after submission of the draft national restoration plan to the European Commission and (ii) after a methodologically sound assessment of the good status.

Before these points in time, there is no direct obligation for authorities, project applicants or third parties to observe the non-deterioration obligations in permitting procedures.

A detailed discussion of the non-deterioration obligations in Article 4 of the NRR and their concrete applicability can be found in our ecolex article (2025/206).

authors: Sarah Wolf, Isabel Bruckmoser