New ruling expands environmental organisations' rights in nature conservation procedures

EOs and their role under nature conservation law

The Aarhus Convention² provides for public participation in environmental proceedings and access to justice in order to review environmental procedures. In Austria, the right to participate in proceedings and to appeal is in principle available only to those who have party status, which is determined by national law. A strict distinction must be made between participating and legal parties. 'Participating' parties have limited procedural rights, such as participation in a hearing. In contrast, 'legal' parties have the right to file an application and to appeal. Therefore, the extent to which EOs are entitled to participate in proceedings is based on the definition of party status in each national regulation.

Previously, the prevailing view was that (under the Aarhus Convention) EOs were only participants in procedures. However, this view was ultimately rejected by the European Court of Justice and the scope of EOs' permitted actions was expanded.

In light of the above, the Environmental Impact Assessment Act provides far-reaching rights for EOs. They can participate in procedures (ie, inspect files, submit statements and file complaints against permits) in order to ensure compliance with environmental protection regulations.

However, under nature conservation law, EOs' rights were traditionally limited. Originally, procedures under the nine provincial³ nature conservation laws were classic single-party procedures. This means that, in principle, only the applicant was a party. Within the framework of the Aarhus Convention, this restriction led to several infringement proceedings by the European Commission. Therefore, EOs were gradually granted access to and participation rights in proceedings (first through the judiciary and later through legislation) in the various nature conservation laws.

However, EOs' right to appeal has been limited to the provisions that derive directly from EU law (eg, the EU Habitats and Birds Directives). It has been ruled that for purely national environmental regulations and the procedures carried out based on these (eg, nature conservation procedures which make no reference to an EU environmental regulation), EOs have no party status. This is because the Aarhus Convention is not directly applicable in national law and therefore no subjective rights can be deduced from the convention in purely national law.⁴

Higher Administrative Court decision

The case in question concerned the approval under nature conservation law for the redesign of the riverbanks in a park in Graz, Styria. Two EOs filed complaints against the permit granted by the authority, arguing that the project would endanger animals protected under the EU Habitats Directive.⁵

The Styrian administrative court rejected the appeals on the grounds that the permit had been issued according to national provisions on the protection of water bodies and their banks, which do not directly serve the implementation of EU law. Therefore, the court held that the EOs could not derive party status from the law and thus were not entitled to file a complaint.

On the EOs' appeal, the Higher Administrative Court found as follows:

• It was correct that the EOs could not derive party status from the Styrian nature conservation provisions in question. Therefore, according to national law, the EOs had no right to appeal.
• With regard to the legal framework (ie, Article 9(3) of the Aarhus Convention and Article 47 of the Charter of Fundamental Rights of the European Union (CFR)), EU member states must ensure effective judicial protection for members of the public (including EOs) of the rights guaranteed by EU (environmental) law. In this context, EOs' legal options are limited to the right to a review of whether the legal provisions arising from EU environmental law have been duly observed in the proceedings.
• However, in the present case, the nature conservation permit also included a species protection assessment. This assessment is conducted pursuant to provisions of the Styrian nature conservation law that have been transposed directly from EU law – namely, the EU Habitats and Birds Directives. The first-instance authority had even endorsed three positive statements by the Styrian provincial government, according to which a "significant impact on the populations of these species" could be ruled out for the project.
• Referring to, among other things, the European Court of Justice's decision in Protect,⁶ the Higher Administrative Court concluded that EU law (indirectly) applied after all and formed the basis of the permit. Therefore, the EOs had party status according to the Aarhus Convention and the CFR and had the right to file a complaint and have the compliance with these provisions reviewed.

Even though the permit was not directly based on EU law, the EOs were entitled to have the permit and the compliance with EU law reviewed by the administrative courts.

Comment

Although the Higher Administrative Court did not depart from the principle that EOs have party status or the right of judicial review (if there are no significant effects on the environment) only when EU law is involved, the court has significantly broadened EOs' participation rights.

The protection of flora and fauna in compliance with the EU Habitats and Birds Directives will almost always play a role in nature conservation procedures in all nine Austrian provinces. This creates an inevitable link to EU law and would bestow on EOs the right to have compliance with environmental law reviewed in almost every case.

For companies which plan on implementing projects, this could create significant legal uncertainty. Following the legal opinion of the court, extensive circumstances must be considered in procedures that are initially based only on national regulations.

This interpretation means that there is a possible deviation from the classic one-party procedure in future Austrian nature conservation proceedings, even for projects that:

• are approved according to laws that do not provide party status to EOs; and
• do not appear at first glance to be related to EU law.

Endnotes

¹ VwGH, 18 December 2020, Ra 2019/10/0081, 0082.
² Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (signed in Aarhus, Denmark, on 25 June 1998). Ratified in Austria through BGBl III 2005/88.
³ Due to Austria's federalism, nature conservation law is divided among the nine provinces.
⁴ VwGH, 27 April 2012, 2009/02/0239 and VwGH, 1 August 2014, Ro 2014/07/0037.
⁵ EU Council Directive on the conservation of natural habitats and of wild fauna and flora (92/43/EEC).
⁶ European Court of Justice, 20 December 2017, C-664/15, Protect.

This article was first published on International Law Office, 12.04.2021.
authors: Christoph Jirak and Sarah Wolf