Years of legal battle ended with granting Austrian NGOs access to justice
by Gregor Schamschula Coordinator - Environmental Law at ÖKOBÜRO / J&E Austria
A case by ÖKOBÜRO/Justice & Environment Austria has finally reached a verdict after years of legal battle for access to justice. The ruling was issued in February 2018 following a complaint by ÖKOBÜRO from 2015. Back then, the NGO tried to challenge measures in an air quality plan for the region of Salzburg, as in their eyes it was not sufficient to reach a reasonable level of air pollution. While the regional government allowed the NGO to challenge the plan, it ruled it to be sufficient. ÖKOBÜRO then again challenged the decision at the court, but it denied legal standing and access to justice altogether. This in turn was challenged again at the level of the Highest Administrative Court, which now made the final verdict on the case. The result: NGOs now have the right to challenge the plans on air quality measures in court and are overall strengthened in their access to justice.
The issue of Access to Justice
The Aarhus Convention entered into force in 2001 and was ratified by the EU (and Austria) early in 2005. It includes provisions which require it to be allowed for NGOs to challenge acts and omissions in environmental law in court according to its Article 9/3. This was not directly transposed into a directive and thus was left to member states to implement. Austria did choose a non-implementation approach, not allowing any challenge to environmental acts and omissions. In 2012-2014 ÖKOBÜRO/J&E Austria filed complaints with the Aarhus Convention Compliance Committee and the European Commission, with both finding Austria’s approach to be non-compliant. A ruling by the ECJ in late 2017 (C-664/15) then was a turning point in the long lasting legal battle for access to justice. The Highest Administrative Court followed this ruling and said, that as European directives have to be read together with the Aarhus Convention, access to justice has to be given to environmental NGOs in the area of EU environmental law.
The underlying case: air quality
Air quality is still a big issue, especially alongside large roads and in cities. The exhaust of cars, especially particulate matter like PM10 and other emissions are endangering the health and even life of millions of Europeans. To state an example, ÖKOBRÜO/J&E Austria together with their partners decided to challenge the plan to lower emissions in Salzburg as not being sufficiently strong. There are several measures, which can be taken to decrease air pollution, like car-free days, investing in public transport, banning of certain old inefficient cars, building bicycle infrastructure, etc. For the complainants, the measures taken in Salzburg were not sufficient, but so far the legal struggle was much rather on the question, whether NGOs are allowed to even challenge those plans. Now that this battle is over, the main issue itself is finally up for discussion. NGOs will now take up the task to push for clean air within a legal framework.
Ruling of Austrian Highest Administrative Court (in German)
Shadow report on the implementation of the
Aarhus Convention in Austria (2017, in English)