Introduction

Declaratory decisions examine whether a project requires an environmental impact assessment (EIA), and thus these decisions are crucial in the run up to environmental impact assessment proceedings.

Until now, neighbours could not appeal declaratory decisions under Austrian law. In addition, neighbours were not considered to be parties to an EIA procedure leading to a declaratory decision. Moreover, it was established case law that a decision declaring that a particular project would not require an EIA had a binding effect on neighbours in subsequent approval proceedings. All in all, neighbours could not apply for a declaratory decision and they had no right to challenge a negative declaratory decision or a subsequent consent decision.

However, the European Court of Justice (ECJ) recently ruled that the exclusion of neighbours from challenges to declaratory decisions is incompatible with the EU EIA Directive (2011/92/EC).(1) Therefore, according to the judgment, declaratory decisions not to carry out an EIA are not binding on neighbours that were precluded from bringing an action against the decision.

National reaction

This decision led to a change in established Austrian legal practice. According to the Supreme Administrative Court, neighbours now have the right to enforce an EIA in subsequent approval proceedings. This applies even if they have no party status in the proceedings and regardless of whether declaratory proceedings were carried out before the approval proceedings.

The legislature has also tried to take recent developments into account. According to the amendment to the EIA Act, neighbours now have the right to appeal against negative declaratory decisions.

Comment

The amendment is rather short-sighted for several reasons. In particular, as only neighbours can appeal, the authority must verify whether the appellant is in fact a neighbour. According to the amendment, neighbours are persons that may be jeopardised or bothered by the construction, operation or continued existence of a project. As such, the amendment actually requires a comprehensive impact analysis to determine who might be affected by a particular project. This could be problematic since impact assessments are reserved for EIA proceedings, where project applicants must submit an environmental impact declaration. Declaratory procedures, on the other hand, are restricted to basic screenings of environmental impact. By incorporating impact analyses into declaratory proceedings, their scope of examination may become as large as an EIA. This was surely not the goal of the legislature and the ECJ.

In addition, the amendment addresses only appeals against declaratory proceedings. The recent Supreme Administrative Court decisions, according to which neighbours also have the right to claim that an EIA be required in approval proceedings regardless of their party status, were not taken into account. A number of complaints have already been filed with reference to this case law, which has created many legal questions.

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.

Endnotes

(1) Karoline Gruber, April 16 2015, C-570/13.

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