Lawsuits and decisions

© Gisela Peter / pixelio.de

1. Civil case Wabl vs Republic of Austria an d Region of Styria

In March 2005 an inhabitant of Graz sent a request for a declaratory judgment establishing liability in case of future health damage. The reasons are the continuous exceedances of limit values  and the refusal of the politicians to implement effective measurements. The court case was rejected in the first instance, but approved by the High Court. The Supreme Court reversed the principle that, where violation of a protective law (here the Law on Imission Control) is claimed,  the defendant must show that he has complied with the law. Also in the second procedure in 2008 the plaintiff was unsuccessful due to this high burden of proof.

2. Administrative case Kuna vs Region/ Governor of Lower Austria

In October 2008 an inhabitant filed an application for measures to comply with limit values in the Region of Lower Austria. The Region declared the Austrian law grants no individual right to clean air.  The Administrative Court rejected the complaint, because the claimant must be directly concerned by the measures he demands, i.e. within his living and/ or working area.

3. Administrative case Hoffmann vs Region/ Governor of Styria

On 1 March 2013 an inhabitant of Graz filed an “application for enactment of comprehensive traffic-related measures to comply with the emission limits for particulate matter in Graz” addressed to governor Franz Voves and the member of the provincial government Gerhard Kurzmann. He asks for measures e.g. a Low Emission Zone (LEZ) or daily changing driving bans. For more than ten years, the limit values for PM10 are exceeded in Graz. The politicians had six months to revise the existing Clean Air Act and implement the measures. They declared that the new Air Quality Directive grants no individual right to clean air and the Janecek case isn’t applicable. In addition the nearest measuring stations show levels above the limit value, due to a construction work in summer. In June 2014 the administrative court refused the complaint as baseless. The Higher Administrative Court annulled this refusal as baseless on 28 May 2015. The Court explained, that in case of non-compliance with limit values Member States have to act. Concerned citizens can ask the relevant authorities to develop air quality plans, if no time extensions are agreed. These three requirements were appropriate when the administrative court decided within this case. The Higher Administrative Court and the governor responded so slowly that in June 2016 the affected citizens had to file a delay at the Provincial Administrative Court of Styria. End of September 2016 a substantive decision was issued. The governor acknowledged the right of citizens to apply for air quality measures. However, he rejected the request for a LEZ and other air quality measures with the reference to the good PM10 values in 2014, but pointed out that the environmental program according to § 9a of the Law on Imission Control will be revised. In October 2016, the affected family filed a complaint to the Regional Administrative Court.

4. Administrative case against the Region of Salzburg

The Austrian environmental organisations ÖKOBÜRO, Greenpeace, GLOBAL 2000, VCÖ und ÄrztInnen für eine gesunde Umwelt filed an “application for enactment of measures to comply with the immission limits for nitrogen dioxide” against the Region of Salzburg on 8 April 2014. In Salzburg both, the Austrian and the EU limit values for nitrogen dioxide are exceeding since many years, caused by the traffic. The legal actions is very important, because the Austrian government failed to transpose the right of action for citizens and NGOs. Previous efforts of affected citizens to enforce their right of action after the ECJ decision in 2008 failed in proofing the immediate consternation. The right of action for NGOs results from the Aarhus Convention and some previous judgments. The Member states have to grant the right, if the compliance with EU law is endangered. In Germany this failure of implementation was removed last year with the decision of the Federal Administrative Court.

In September 2014 the government of Salzburg admitted the application and accepted as first Austrian federal state the right of action for environmental organisations. The request for more measures especially regarding transport was dismissed, because of the evaluation and revision of the air quality program in 2013 and the predicted improvement of the air pollution in 2015. As a result, NGOs now have the right to examine the decision of court on legitimacy. ÖKOBÜRO filed an appeal against the decision of the Governor of Salzburg and requested to conduct a hearing and alter the decision to the effect that appropriate measures has to be implemented to achieve compliance as soon as possible, or alternatively seek a preliminary ruling from the ECJ. On 30 March 2015 the Regional Administrative Court of Salzburg refused the application as baseless for lack of direct concern and legitimacy for demanding several measures. ÖKOBÜRO brought an extraordinary appeal against this decision on 8 April 2015. The questions of the legal standing of NGOs as part of the Austrian environmental legislation is intended in particular to be clarified.

5. Letter of formal notice

With the letter of formal notice of 11 July 2014, the European Commission opened against Austria a further infringement proceedings in environmental matters. According to the Aarhus Convention, which Austria has ratified on 17 January 2005, citizens and environmental organizations must be granted free access to justice in environmental violations of the state and individuals. Such important areas of environmental law, how nature conservation, water policy, the air policy and waste management are harmonized by European law and include specific obligations for the Member States. So far, these participation and appeal rights apply in relation to environmental matters only in EIA or IPPC processes. After the Oekobuero lodged a complaint the Aarhus Committee in Geneva decided in 2012 that the implementation of Article 9 (3) of the Aarhus Convention is still open. The 5th Conference of the Parties on June 30, 2014 confirmed this again. If the Austrian government continues to take no action a lawsuit before the European Court of Justice could result.

4. Administrative case against the Region of Salzburg

The Austrian environmental organisations ÖKOBÜRO, Greenpeace, GLOBAL 2000, VCÖ und ÄrztInnen für eine gesunde Umwelt filed an “application for enactment of measures to comply with the immission limits for nitrogen dioxide” against the Region of Salzburg on 8 April 2014. In Salzburg both, the Austrian and the EU limit values for nitrogen dioxide are exceeding since many years, caused by the traffic. The legal actions is very important, because the Austrian government failed to transpose the right of action for citizens and NGOs. Previous efforts of affected citizens to enforce their right of action after the ECJ decision in 2008 failed in proofing the immediate consternation. The right of action for NGOs results from the Aarhus Convention and some previous judgments. The Member states have to grant the right, if the compliance with EU law is endangered. In Germany this failure of implementation was removed last year with the decision of the Federal Administrative Court.

In September 2014 the government of Salzburg admitted the application and accepted as first Austrian federal state the right of action for environmental organisations. The request for more measures especially regarding transport was dismissed. Therefore, the NGOs will appeal.

5. Letter of formal notice

With the letter of formal notice of 11 July 2014, the European Commission opened against Austria a further infringement proceedings in environmental matters. According to the Aarhus Convention, which Austria has ratified on 17 January 2005, citizens and environmental organizations must be granted free access to justice in environmental violations of the state and individuals. Such important areas of environmental law, how nature conservation, water policy, the air policy and waste management are harmonized by European law and include specific obligations for the Member States. So far, these participation and appeal rights apply in relation to environmental matters only in EIA or IPPC processes. After the Oekobuero lodged a complaint the Aarhus Committee in Geneva decided in 2012 that the implementation of Article 9 (3) of the Aarhus Convention is still open. The 5th Conference of the Parties on June 30, 2014 confirmed this again. If the Austrian government continues to take no action a lawsuit before the European Court of Justice could result.