Declaratory decisions regarding environmental impact assessments (EIAs) have recently been subject to legal changes and discussion. These changes were triggered by the European Court of Justice (ECJ) ruling in Gruber, in which it was held that the exclusion of neighbours from challenges to declaratory decisions is incompatible with the EU EIA Directive (2011/92/EC).

Impact of Gruber

In the wake of the ECJ's decision, the Federal Administrative Court pronounced that neighbours have the right to enforce an EIA in subsequent approval proceedings. On the other hand, the national legislature implemented the ECJ's decision insofar as neighbours now have the right to appeal against negative declaratory decisions.

Unfortunately, this amendment did not address the abovementioned Federal Administrative Court decision. Therefore, the legal situation concerning this interim period – in other words, the timeframe between the ECJ's decision and the amendment – was rather unclear. This question is of particular importance for earlier cases which do not fall within the scope of the amendment.

In a recent decision the Federal Administrative Court had to assess such a case. A neighbour had appealed against a negative declaratory decision regarding a thermal power station. According to the court, neighbours in cases that do not fall within the scope of the amendment have no:

  • right to initiate a declaratory decision;
  • party status in declaratory proceedings; or
  • right to appeal.

Neighbours can enforce an EIA only in subsequent approval proceedings. The complainant's argument that questions regarding environmental impact assessments cannot be dealt with in subsequent approval proceedings on grounds of lack of competence was dismissed by the court.

Comment

The Federal Administrative Court's decision has confirmed that neighbours in earlier cases can enforce an EIA only in subsequent approval proceedings. Further, the court has clarified that neighbours do not have party status in declaratory decision proceedings. With this decision, the court has sharpened its judicature regarding earlier cases. As the national legislature has neglected to regulate earlier cases, this decision is a valuable contribution to procedural law.

For further information on this topic please contact Christian Schmelz or Sandra Schönbäck at Schoenherr by telephone (+43 1 5343 70) or email (c.schmelz@schoenherr.eu%E2%80%8B or s.schoenbaeck@schoenherr.eu). The Schoenherr website can be accessed at www.schoenherr.eu.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.