Sarah Wolf August 8 2022 Court further strengthens participation rights of environmental organisations Schoenherr | Environment & Climate Change - Austria Sarah Wolf Environment & Climate Change IntroductionFactsDecision CommentIntroductionIn its most recent decision(1) in connection with the Fauna-Flora-Habitat Directive (the Habitats Directive),(2) the Supreme Administrative Court (SAC) found that environmental organisations (EOs) – contrary to the principles of process prerequisites in the Austrian legal system – do not have to prove an interest in legal protection.Thus, an EO is entitled to object to violations of EU environmental law irrespective of the question of a violation of subjective rights. Unlike other formal parties, EOs do not lose their interest in legal protection.This article critically examines the decision of the SAC.FactsA forest owner applied for the felling of several Swiss stone pine trees in his forest. The forest is located in the outer zone of the Hohe Tauern National Park, which is a Natura 2000 area according to the Habitats Directive. The authority approved the felling of the Swiss stone pines in August 2014.However, the forest owner did not fell these trees and applied for the felling of other trees in the same forest, which was approved by another decision of the authority in August 2016. The forest owner used this second permit from August 2016, between August and October 2016.In mid-October 2016, after the forest owner had already felled the trees, an EO filed a complaint against the two decisions of August 2014 and August 2016.The competent regional administrative court rejected the complaint of the EO as inadmissible for lack of legal interest. The court based its decision on the facts that:the decision of August 2014 had been amended by the second decision of August 2016 and was therefore no longer relevant; andregarding the decision of August 2016, the forest owner had already felled the trees before the EO filed the complaint.Because the felling could not be reversed, the answer to the question as to what effects the felling would have had on the protected area would only have theoretical significance. Therefore, the EO as a "formal party" lacked the legal interest to set aside the decision. Hence, already at the time of filing the complaint, the EO no longer had an interest in legal protection.The EO then appealed to the SAC.DecisionThe SAC overturned the contested decision and first stated that the interest in legal protection is a prerequisite for proceedings concerning the enforcement of subjective public rights. In the case of an appeal against a decision, the interest lies in the annulment of the decision. As a rule, however, such an interest is no longer present if it makes no difference whether the decision remains in force or is revoked.In the present case, the EO's right to appeal is based on its role in verifying compliance with EU environmental law. Therefore, the EO must represent those interests which result from the environmental protection regulations under EU law.In this regard, the SAC referred to case law of the European Court of Justice (ECJ).(3) The ECJ had already ruled on the environmental impact assessment (EIA) that member states can limit the legal protection of individual persons to the exercise of subjective rights. However, such a restriction cannot be applied to EOs, because this would disregard the objectives of the EIA Directive,(4) which provide for access to a review procedure before a court for concerned members of the public. EOs would therefore have to be able to invoke those national legal provisions which transpose the environmental provisions of EU law, as well as the directly applicable environmental provisions of EU law.Against this background, the SAC stated that the EO's right to appeal when enforcing environmental regulations under EU law may not be restricted due to a lack of interest in legal protection. The EO may assert violations of environmental regulations under EU law irrespective of the question of the violation of subjective rights. In this respect, EOs differ from other formal parties, whose right to appeal is also not linked to subjective rights, but which must have an interest in legal protection.CommentFollowing recent case law,(5) the SAC further extended the rights of environmental organisations in its decision. This is contrary to the traditional principles of the Austrian legal system.First, it is noteworthy that, according to the Forest Act, only the forest owner or a party with a right of disposal is entitled to party status in the felling permit procedure. The Forest Act does not expressly grant party status to an EO as a formal party. The SAC has already stated that the protection forest in question is a natural habitat type of community interest according to the Habitats Directive.(6) Therefore, the question of the compatibility of the requested felling with the protected areas of the Habitats Directive must be considered in the felling proceeding. This follows that EOs have a right to participate in the official procedure.Secondly, in the Austrian legal system one of the prerequisites for administrative court proceedings is an interest in legal protection. Accordingly, an appeal may only be filed if there is a possibility that the contested decision will interfere with the rights of the appellant. The possibility of infringement of rights does not exist if it makes no difference to the legal position of an appellant whether the decision of the court is upheld or overturned. Therefore, in the previous case law of the SAC, an appellant was not entitled to a mere determination of the unlawfulness of the contested decision.(7)In the subject decision, the SAC is now apparently granting EOs unrestricted access to the courts, while other parties must stay within the boundaries of the Austrian legal system. Whether this special position of EOs is actually beneficial with regard to environmental protection remains to be seen.The decision shows that despite the efforts made under EU law to ensure effective environmental protection, this is still far from being achieved in practice. In the case at hand, the trees have long since been felled. This cannot be reversed. The decision of the SAC also fails to provide any information on whether the felling of the trees was permissible. This must now be examined again by the authority years later and quite abstractly from the concrete case.In conclusion, this jurisprudence results in enormous legal uncertainty for project applicants because, even years later, they have to reckon with a permit becoming invalid or even having to pay fines subsequent to unlawful action.For further information on this topic please contact Sarah Wolf 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.Endnotes(1) VwGH 28 March 2022, Ra 2020/10/0101.(2) EU Council Directive on the conservation of natural habitats and of wild fauna and flora (92/43/EEC), 21 May 1992.(3) ECJ, 20 December 2017, C-664/15, Protect.(4) EU Parliament and Council Directive on the assessment of the effects of certain public and private projects on the environment (2011/92/EU), 13 December 2011.(5) See also "New ruling expands environmental organisations' rights in nature conservation procedures" and "Supreme Administrative Court once again favours environmental organisations".(6) VwGH 20 December 2019, Ro 2018/10/0010.(7) The SAC has even stated this regarding an EO in a water law procedure (VwGH 27 July 2017, Ra 2017/07/0014).