CJEU on appropriate assessments under the Habitats directive may spell trouble for national practice
The EU Court of Justice has ruled that an appropriate assessment under Art 6(3) of the Habitats Directive is legally valid only where site-specific conservation objectives have been established for the Natura 2000 site beforehand; absent such objectives the assessment cannot be carried out lawfully, and this cannot be cured by a diligent case-by-case expert opinion (CJEU 16 July 2026, Joined Cases C-27/25 and C-356/25, SU and Wild Ireland Defence and Paddy Massey). Crucially, the Court found no grace period for Special Protection Areas: unlike the six-year window for designating FFH sites, the obligations under Art 6(2)–(4) apply to bird-protection sites immediately upon designation via Art 7 of the Directive. Even at the screening stage the distinction matters, as the geographic delimitation of potentially affected sites may proceed without the objectives, whereas assessing the likelihood of significant effects on a site within the impact zone may not. For Austria this is pointed, because many Europaschutzgebiete—particularly bird-protection sites—still lack specific or sufficiently concrete conservation objectives, so assessments resting on their absence are vulnerable; the Verwaltungsgerichtshof had already required a normative definition of objectives (VwGH 2 October 2007, 2006/10/0165), and recognised environmental organisations can challenge a missing or defective appropriate assessment (VwGH 22 May 2025, Ra 2023/10/0330). The practical upshot is a clear mandate for the Länder to equip their sites with legally binding, site-specific conservation objectives without delay, since until they do, every assessment built on them remains open to challenge.
First draft of the Austrian Klimagesetz features a big loophole and lacks legal remedy against state inaction
Since 21 September 2026, the first draft of the Austrian Climate Law/Klimagesetz (KliG) is open to the public for assessment, statements can be submitted until 30 October 2026. The draft aims to implement the EUs Effort Sharing Regulation and the EU Climate Law in Austria by concentrating on climate protection and adaptation measures as well as circular economy. While it includes some generally favorable clauses on public participation, the draft is found lacking in multiple other aspects, the most crucial being the absence of legal remedy against national climate inaction: The KliG is only a self-commitment by the state, not even the “Klimafahrplan”, a document listing measures to be taken against climate change by the government and all states which is yet to be adopted near the end of 2027, will be a legally binding document. This approach will hardly be compliant with the ECtHRs judgment “KlimaSeniorinnen” or the CJEUs judiciary on Art 9 Abs 3 Aarhus-Convention and Art 47 CFR requiring effective access to court in climate change. Also very problematic is § 8 Abs 6 which introduces a possibility to reevaluate and alter the (non-legally binding) Klimafahrplan including the goal of climate neutrality if events with “especially grave economic or social consequences” occur that can endanger the national economy or job market. Without predetermined triggers, fixed thresholds and consultation of the scientific advisory board, this leaves a big loophole to backpedal and weaken climate goals. Finally, the main governance board has to decide unanimously, which is highly improbable to achieve in a political assembly of at least 16 people from different ministries and states (“Länder”). This may cause a blockade from within and with no legal remedy to demand the adoption of a Klimafahrplan, climate action may be delayed once more.