Lawsuits and decisions
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” on 8 April 2014 against the Region of Salzburg. 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 CJEU 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 Governor of Salzburg approved the application of the environmental organisations and recognised as the first federal state the right to sue of NGOs in Austria. The application to implement further measures was rejected because the air pollution control programme was evaluated and revised in 2013 with a predicted improvement from 2015. As a result, the environmental organisations now also have the right to have the decision reviewed for legality by the courts. ÖKOBÜRO lodged a complaint against the decision of the Governor of Salzburg, requested a hearing and that the decision be amended so that appropriate measures can be taken to achieve compliance as soon as possible, or alternatively to obtain a preliminary ruling from the ECJ. On 30 March 2015, the administrative court Salzburg dismissed the application as inadmissible because, in the absence of direct concern, there would be no claim and no claim to the setting of individual measures. Ökobüro issued an extraordinary audit on 8 April 2015 against this finding.
Following a defeat before the Salzburg Regional Administrative Court, the Vienna Administrative Court (Verwaltungsgerichtshof - VwGH), the highest court with jurisdiction, ruled on 19 February 2018 that environmental NGOs can order a review of compliance with the legal provisions arising from EU environmental law.
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.