First Austrian State to implement Access to Justice: Styria
Following the implementation of access to justice in environmental matters by the federal government in the fields of water protection, waste management and air quality, the first regional state, Styria, presented its amendment to nature protection, fishery and hunting laws. This action follows both the rulings by the ECJ in cases like C-664/15 and C-243/15 and the European Commission’s ongoing infringement procedure against Austria.
In the proposal, environmental organisations will be able to call for screening decisions under the Habitat’s directive and challenge decisions made with impacts on protected species, birds and habitats, including those with hunting and fishery laws. This development is being greeted by environmental organisations as being a very positive one, as it brings clear legal rules and procedures.
On the downside, the proposal limits its retroactive effect to one year, which means all decisions older than that will be “immune” to the new provisions. As the requirement to grant access to justice was put forth in the Aarhus Convention, signed in 1998, put into force in 2001 and ratified in 2005, this would mean a period of almost two decades, where access to justice was unlawfully not given to the public concerned. It is quite likely, that this restriction is not in line with EU legislation. Also, the proposal contains no provisions on letting the public participate in and challenge plans and programmes in the area of nature protection and conservation. And lastly it only covers areas under EU law, which of course leaves other areas not covered by the EU but included in the Aarhus convention, where access to justice will still not be granted to the public concerned.
ECJ answers further important questions on the interpretation of assessments according to Habitats Directive and EIA Directive
On the occasion of the approval of a road construction project in two Irish Natura 2000 sites, the ECJ had to deal with numerous questions concerning the interpretation of the Habitats Directive as well as the EIA Directive.
In the ECJ's view, an adequate assessment of possible impacts on protected areas can only be made if all aspects of a project have been identified in the light of the best relevant scientific evidence. The subsequent findings must be sufficiently precise, complete and definitive to leave no reasonable doubt from a scientific point of view. Furthermore, if there are reasonable scientific doubts as to the sufficiency of the information available and the authority fails to obtain further information, a detailed justification must be provided.
With regard to EIA procedures, the ECJ stated that the EIA Directive does not define the term „alternatives to the project“. In the ECJ's view, the decisive factor for assessing alternatives as "main" is therefore whether these alternatives influence the environmental impact of the project or not. Therefore, it is irrelevant when an alternative is rejected by the developers. Although developers have to justify their selection with regard to the respective environmental impacts, the EIA Directive does not, however, require an EIA for the examined alternatives.
Unfortunately, the consequences of a complete lack of such an assessment of alternatives still remain unclear due to the wording of the decision ("all the main alternatives that were studied by the developer").
geändert am 28.11.2018