First Austrian province presented draft law on implementation of Access to Justice

Category: Aarhus

Following the implementation of access to justice in environmental matters by the federal government in the fields of water protection, waste management and air quality, back in December 2018 the first regional state, Styria, presented its amendment to nature protection, fishery and hunting laws. This action follows both the rulings by the ECJ in cases like C-664/15 and C-243/15 and the European Commission’s ongoing infringement procedure against Austria.

In the proposal, environmental organisations will be able to call for screening decisions under the Habitat’s directive and challenge decisions made with impacts on protected species, birds and habitats, including those with hunting and fishery laws. This development is being greeted by environmental organisations as being a very positive one, as it brings clear legal rules and procedures.

On the downside, the proposal limits its retroactive effect to one year, which means all decisions older than that will be “immune” to the new provisions. As the requirement to grant access to justice was put forth in the Aarhus Convention, signed in 1998, put into force in 2001 and ratified in 2005, this would mean a period of almost two decades, where access to justice was unlawfully not given to the public concerned. It is quite likely, that this restriction is not in line with EU legislation. Also, the proposal contains no provisions on letting the public participate in and challenge plans and programmes in the area of nature protection and conservation. And lastly it only covers areas under EU law, which of course leaves other areas not covered by the EU but included in the Aarhus convention, where access to justice will still not be granted to the public concerned.