Case law in Austria by jennyyingdi

VIEWS: 2 PAGES: 23

									    “Green” Case Law in Austria
Civil, criminal and administrative environmental law provisions and
                   their relevance for Green NGOs


                     Dr. Fritz Kroiss
         Civil Law in Austria I
• Action for Injunction in the case of emissions
• Exception for plants with a permit.
• § 364 and 364a ABGB (Austrian Civil law code)
• In the case of permitted plants only damage
  compensation.
• Very few cases
• Not used by NGOs because of court fees and
  cost risks
   Mochovce & Temelin Cases
• The Austrian Green Politician „Eva
  Glawischnig“ filed an Action for Injunction
  against the operator of the Mochovce
  Nuclear Power Plant in Slovakia
• The Government of Upper Austria filed an
  Action for Injunction against the operator
  of the Temelin Nuclear Power Plant in
  Czech Republic
• These actions were not successful so far...
        Civil Law in Austria II
Environmenal Liability:
• No comprehensive legislation in Austria so
  far. Drafts from the 1990s were not
  passed.
• New law under preparation to implement
  EU Environmental liability Directive.
• Sectoral provisions on Liability will remain
  in force.
• Not used by NGOs.
 Cases: Liability for contamination
     from (waste) disposal
• Several cases deal with the question who
  should pay for the clean up
• Article 31 para 3 of the Austrian Water act
• Legal or illegal in the sense of
  environmental permitting is not relevant!
• What counts is the threat of the
  groundwater
• If the polluter cannot be identified the land
  owner has to pay the clean up costs!!!
      Criminal law – European
            Dimension I

• Commission Proposal for a Directive of the
  European Parliament and of the Council
  on the protection of the environment
  through criminal law COM (2001) 139,
  adopted by the Commission on 13 March
  2001.
      Criminal law – European
            Dimension II
• Council Framework Decision 2003/80/JHA
  of 27 January 2003 on the protection of
  the environment through criminal law
• The European Commission decides to
  take action in the Court of Justice
• The Advocate General of the European
  Court of Justice delivered his conclusions
  on 26/05/2005
       Criminal law – European
            Dimension III
• The Advocate General recommends to declare
  the Council Decision as in breach of the EC
  treaty.
• Decision of the ECJ of 13.9.2005 (Rs C-176/03)
  declared Council Decision as null and void.
• Will the EC Commission go on with pushing
  through her proposal through the legislative
  procedures after the ECJ will have decided?
        Austrian Dimension I
• Convention on the Protection of the
  Environment through Criminal Law
  (Strasbourg, 4.XI.1998).
• Convention requires three ratifications for
  its entry into force. Estonia is the only
  country which has ratified so far.
• Nevertheless Austria amended its criminal
  code to meet the requirements of the
  Convention
        Austrian Dimension II
• Art. 180, Art. 181 to 181e, 182, Art. 183 to 183b
  of the Austrian Criminal Code
• Largely amended in 2006
• What constitutes an act of criminal offence?
  (both deliberate and negligent!)
  – impairment of the environment (General),
  – treatment and shipment of waste impairing the
    environment
  – Operation of industrial plants impairing the
    environment
  – etc.
  Criminal law cases in Austria
• Number of complaints declined from 332
  in 1994 to 207 in 2002
• Number of sentenced persons is between
  19 (1995) and 35 (1997)
• NGOs normally do not use criminal law as
  a tool in campaigning
• Administrative offence cases are much
  higher and much more relevant
 Administrative Law in Austria I
• Law on Environmental Impact Assessment
  is the most prominent piece of
  Environmental law in Austria
• Since 2005 NGOs have legal standing in
  EIA procedures
• NGOs have to register at the Ministry for
  Environment if they want to participate in
  EIA procedures
 Administrative Law in Austria II
• The Citizen Group (Bürgerinitiative)
  under Austrian EIA legislation:
  – Minimum 200 persons from respective
    Municipality or neighboring Municipality
  – Signing one identical statement
  – Takes part in the EIA procedure with legal
    standing
  – Can file complaints even to the Administrative
    and the Constitution Court
Administrative Law in Austria III
• Since a few years Air Protection
  Legislation has high degree of Public
  Attention, as Austria is exceeding some air
  related environmental quality standards
  (“imissions”), e.g. dust (“PM 10”)
• Waste Legislation is not very present in
  the media, but a highly relevant for
  companies because of costs
Administrative Law in Austria III
• Nature Protection Legislation became an issue
  since Austria´s EU Accession in 1995: The
  Natura 2000 Protection System of the EU
  brought about major improvements in the field of
  Nature Conservation, which provoked opposition
  of land owners and farmers
• Several infringements procedures in front of the
  European Court of Justice, many of them
  brought to the Commission by NGOs.
   Environmental Law Service of
           OKOBURO
• Most requests sent to OKOBURO concern
  EIAs for road projects
• OKOBURO receives financial support from
  the Austrian Ministry for Environment to
  maintain Environmental law service
• OKOBURO provides information texts on
  environmental legislation on its Webpage
  and answers individual requests
         Natura 2000 case I
• Magna Real Estate (Mr. Frank Stronach)
  purchased land of 250 ha in the
  municipality of Ebreichsdorf in 1996 to
  develop the project of a so called thematic
  park. This leisure park should comprise a
  horse racetrack plus a 200 m high building
  on the shape of a globe.
• The site was in the process of designation
  as a Natura 2000 site.
          Natura 2000 case II
• EC Commission was informed about the case by
  several NGOs and citizen’s groups.
• In November 2000 the Commission sent a
  formal letter of inquiry to the Austrian
  Government. In this letter the Commission
  stated that the definition of the boundaries of the
  respective Natura 2000 site had not been
  performed in accordance with scientific criteria.
• Parts of the land, which should have been
  added to the Natura 2000 zone, were excluded
  from it to allow the construction of the project
  possible.
        Natura 2000 case III
• In 2001 necessary permits were issued,
  ignoring the ongoing investigations of the
  EU Commission on the case.
• An expert commission put together by the
  Austrian Government convinced the EU
  Commission to stop investigations and to
  close the case.
• The so called MAGNA RACIO horse race
  tracks opened on 4th September 2004.
               EIA case I
• Spielberg Project: Motor race track in
  Styria
• Group of investors want to extend and
  upgrade the race track
• Problematic for local population because
  of noise
• Positive EIA decision from 1st instance
  authority
              EIA case II
• Neighbors bring in complaint against the
  1st instance decision
• Appeal body (“Umweltsenat”) refuses EIA
  approval
• Government amends EIA act to push
  through the project
• Project modifications
• Preparations for new EIA ongoing
              Conclusions
• EIA and environmental permitting most
  relevant for NGOs
• Legal standing for NGOs and Citizens´
  groups (Bürgerinitiativen) in EIAs
• Political pressure often more effective then
  legal remedies
• Environmental Law Service of OKOBURO
  to support small NGOs very effektive
               Contacts
• ÖKOBÜRO:
thomas.alge @oekobuero.at
www.oekobuero.at
www.justiceandenvironment.org
• Umweltbundesamt:
fritz.kroiss@umweltbundesamt.at
www.umweltbundesamt.at

								
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