Federal States of Austria release first legislative drafts to implement access to justice
The Federal States of Styria, Upper Austria and Lower Austria have released their first draft amendments to implement the second and third pillar of the Aarhus Convention – public participation and access to courts – in nature protection procedures.
The EU infringement procedure No. 2014/4111 as well as two cases of the Aarhus Convention Compliance Committee (ACCC/2010/48 and ACCC/2011/63) show that Austria still falls short regarding the Convention’s national implementation. After measures to implement the second and third pillar of the Aarhus Convention have been taken on Federal level in water protection, air pollution control and waste law, some Federal States have now drafted amendments within their competency.
Whereas the Styrian draft shows a quite ambitious approach, granting environmental protection organisations party status in various procedures, Upper and Lower Austria have chosen narrower ways, granting only a restricted right to challenge certain decisions retrospectively. In this context, it should also be noted that still none of the draft amendments includes options to challenge omissions, plans, programmes or ordinances.
Regarding the Upper Austrian draft, it is especially questionable that the involvement of eNGOs is used as an argument to exclude the Environmental Ombudsmen from the proceedings concerned. This has been subject to much criticism as the Environmental Ombudsmen have played a crucial role in the interest of environmental protection as important stakeholders from a different perspective than eNGOs – and long before the implementation of the Aarhus Convention in Austria. Since environmental protection organisations, in contrast to the Environmental Ombudsmen, are not granted full party status, but only certain participatory rights and a right to appeal, this, is not at all a 1:1 replacement. Such an amendment would therefore lead to the paradoxical result that after the implementation of the Aarhus Convention the public interest in environmental protection would be less represented in Austrian environmental proceedings than before.
The final decisions by the different legislative bodies must be awaited just as the content of implementation measures in the remaining six Federal States. Until then, ÖKOBÜRO will stay involved and try to reach the most accurate implementation possible.