The first article in this Newsflash issue deals with the construction of a trans-boundary, high-voltage, power line on Austrian territory. The European Court of Justice (ECJ) requested to issue a preliminary ruling on the question whether an Environmental Impact Assessment has to be carried out in the concrete case, even though the length of the power line fell, at least on Austrian territory, short of the relevant thresholds. The reason why the ECJ affirmed that an EIA is to be carried out was that it undertook an overall assessment of the trans-boundary project. In total the length of the power line easily reached the thresholds. The ECJ stated that it would be contrary to the aims of the EIA Directive (88/337/EC) if projects stretching over the territory of more than one member state would, just for this reason, not be covered by the Directive.
Article number two also deals with a preliminary ruling by the ECJ. In this case it concerned the pollution of a Sicilian bay by petrochemical industry which had settled in its close surrounding. The core of the decision concerned the question whether authorities could, based on environmental liability provisions (and therefore on the polluter pays principle), demand a reparation of the damage done without proving the direct link between the activities carried out in the facilities and the damage done to the bay. The ECJ in principle accepted the approach of the authorities, but nevertheless stated, that plausible evidence (such as the proximity of the facility to the polluted area or an identicalness of the substances used in the facility and found in the polluted area) would have to be provided. This approach is, from OEKOBUEROs point of view, acceptable and shows possible flexibilities in the, rather toothless, system of European environmental liability.
The third article informs about the draft of an amendment in Austrian constitutional law which intends to install administrative courts of first instance. The purpose of the amendment is to improve legal protection, to expedite the proceedings and to relieve the highest administrative court. The draft plans to install 9 regional administrative courts and two federal administrative courts. The independent environmental senate shall be disestablished and integrated into the regional administrative courts, which is likely to significantly impair the quality of EIA proceedings in the Austrian federal states. The reasons are lack of relevant competences due to little experience and an increased risk that pressure could be exerted on the courts.
geändert am 27.04.2010