If there are two or more conflicting water use projects (eg, hydroelectric power stations), the Water Act provides for a special conflict procedure. A pending conflict procedure suspends decisions in all underlying approval procedures. As a result of the conflict procedure, the project which serves public interests best will take priority over the inferior project.
Once a conflict procedure is completed, the approval procedure for each of the conflicting projects will continue. In the past, the Federal Administrative Court stated that the party to the inferior project in the conflict procedure was entitled to claim certain rights in the approval procedure of the winning project.
The Federal Administrative Court recently addressed whether the party to the winning project in a conflict procedure was entitled to claim rights in the environmental impact assessment (EIA) – which in Austria contains an approval procedure – for the inferior project.
In the case at hand, in the EIA the winning party applied for the rejection of an application for a permit and the dismissal of the procedure by referring to the priority decision in the conflict procedure. When a decision was made in respect of these applications, the EIA had not yet been concluded.
In its decision, the Federal Administrative Court ruled that, on the one hand, the legal standing of a party in a conflict procedure is not strictly restricted to that procedure. On the other hand, the court found that being party to a conflict procedure does not guarantee unlimited legal standing in the approval procedure of the other project.
The court also ruled that the rights of a winning party may be violated only if a decision in the EIA would ignore the decision in the previous conflict procedure. Since there was no such decision in the EIA, the Federal Administrative Court rejected the winning party's claims.
The Federal Administrative Court clarified that both the inferior party and winning party in a conflict procedure are entitled to enforce certain rights in a continued approval procedure.
In a competitor's approval procedure, the winning party has a right to enforce its decision-making priority in the conflict procedure. An ongoing approval procedure does not violate the winning party's rights. Only a decision in the approval procedure that would otherwise ignore a decision in the conflict procedure could have such an effect. Thus, it is irrelevant whether the underlying approval procedure is an EIA or a water approval procedure.
For further information on this topic please contact Benjamin Schlatter at Schoenherr Rechtsanwälte by telephone (+43 1 53 43 70) or email ([email protected]). The Schoenherr Rechtsanwälte website can be accessed at www.schoenherr.eu.