30. September 2021 | NEWSFLASH Umweltrecht

English Summary

Inconsistent jurisprudence regarding access to justice for environmental organisations 

Participation rights and rights to appeal for environmental organisations already differ in each federal state of Austria. The inconsistent legal situation is now further supplemented by inconsistent jurisprudence regarding Aarhus Convention rights in nature and species protection law: in two similar cases, the Regional Administrative Court of Salzburg decided differently on the extent of access to justice of environmental organisations in procedures on the exemption from strict species protection. In the first case, the environmental organisation was denied the right to appeal because the exemption permit concerned species of birds which did not fall under the strict protection of Annex I to the Habitats Directive. In the second case, the same court decided that such a restriction of access to justice to cases which concerned Annex I-species was against Union law and the Aarhus Convention. It is now for the Higher Administrative Court to ensure a uniform application of law and thus legal security.  

European Commission refrains from supporting ACCC decision on legal protection against environmentally harmful subsidies 

In its findings of March 2021, the Aarhus Convention Compliance Committee (ACCC) confirmed a communication brought by ÖKOBÜRO and GLOBAL 2000, stating that environmental organisations are entitled to challenge Commission decisions on state aid. The European Commission now proposes to take note of these findings, but not to endorse them as applicable law for the time being.  In 2015, the two environmental NGOs had filed a complaint with the ACCC based on a Commission state aid decision concerning the British nuclear power plant Hinkley Point C. The decision of the Meeting of the Parties to endorse the ACCC's findings makes them legally binding for the Parties. The Commission, however, is now proposing not to endorse the ACCCC’s findings in the upcoming Meeting of the Parties but to postpone this until the 2025 conference. This does not only constitute a breach of international law but could also legitimise similar behaviour from other Parties in the future.