Case study : Austrian case

Flooding protection project; legal standing of neighbours in an administrative procedure to state legal facts concerning environmental impact

1. Facts:
The Salzburg Province Government (as administrative authority of first instance) stated in a decision of Dec. 2005 upon application of the municipality of M. according to sect. 39 § 1 and to sect. 3 § 7 of the Environmental Impact Assessment Act 2000 (EIA Act 2000) that there is no necessity to make an environmental impact assessment (EIA) for the flooding protection project in M. The municipality of M. based its application on the fact that the technical measures of protection are reduced to the construction of dams (barrages) and walls in a section of a bit more than 2 kilometres along the river Salzach and that the planned detention measures (detention basins) do not achieve the limits stated in annexe 1 number 31 character b of the EIA Act 2000 (= simplified EIA for barrages and other constructions for retaining waters or permanent storage of waters in area of a certain category which should be protected with a storage capacity of more than 2 million cubic metres). Furthermore the planned measures achieve an essential amelioration of the ecology of the waters of the river Salzach.
The first instance (Salzburg Province Government) justified the decision that retention basin has a maximum capacity of 1,7 million cubic metres and that the protection and water regulating measures are projected for a length of less than 3 kilometres so that also the limits of 3 kilometres (as foreseen for a simplified EIA in annexe 1 number 42 of the EIA Act 2000) are not exceeded. In the course of the administrative proceeding the water experts attested that the planned protection measures will help to ameliorate the ecology in the river Salzach. The environmental attorney agreed as well that the project will come close to a good ecological state. Therefore the project had not to be subject of an EIA.
Several citizens appealed against this decision of the Salzburg Province Government. The Environmental Panel (Umweltsenat; a specialised independent authority established at the Federal Ministry of Agriculture, Forestry, Environment and Water Management composed of judges and civil servants of different federal ministries and of federal provinces) dismissed these appeals according to sect. 66 § 4 of the Administrative Procedure Act and to sect. 3 § 7 of the EIA Act 2000.
The Environmental Panel justifies its decision with the wording of sect. 3 § 7 of the EIA Act 2000. This regulation is in the opinion of the Senate non ambiguous (eindeutig). Only the applicant, the co operating authorities, the environmental attorney and the municipality where the project is positioned (Standortgemeinde) have legal standing in the administrative proceeding regarding the EIA. This regulation does not give the legal standing in a procedure to state legal facts (Feststellungsverfahren). The law differentiates explicitly between the legal standing in a procedure to state legal facts according to sect. 3 § 7 of the EIA Act 2000 and the legal standing in a procedure concerning the authorisation of a facility according to sect. 19 § 1 of the EIA Act 2000. As the appealing parties (as neighbours) have no legal standing in a procedure to state legal facts according to sect. 3 § 7 of the EIA Act 2000 their appeals had to be dismissed.

Two persons (a water co operative and a citizen) appealed to the Administrative Court (Verwaltungsgerichtshof). In their opinion the second instance authority would have been obliged to give them a legal standing in the procedure to state legal facts as a consequence of direct applicability of EC law, namely of the directive 85/337/EEC amended by directive 2003/35/EC (EIA directive). The individuals as the appealing parties may demand appropriate measures from the member states of the EU in the way that projects before getting an approval , if it is likely that these projects have considerable effects to the environment due to the nature, size or location of the projects, have to undergo an assessment of the environmental effects. The procedure to state legal facts (Feststellungsverfahren) is also covered by art. 10a of the EIA directive; otherwise the efficiency of the directive 2003/35/EU would be put into question, if neighbours and directly affected owners of real estates claiming an infringement would not be included as the concerned public and as parties of the procedure to state legal facts. Furthermore the legally binding statement according to sect. 3 § 7 of the EIA Act 2000 would be binding also for all following relevant administrative procedures; in this sense the taken decision of the authority is binding for the complainants although they could not participate in the administrative procedure. As art. 10a of the EIA directive is directly applicable the authority should have given the possibility to the owners of real estates to participate in the procedure to state legal facts.

2. Legal framework:
a. EC Law:

Art. 6 § 4 of the EIA Directive (amended by dir. 2003/35/EU) states:

"4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken."

Art. 10a of the EIA Directive (amended by dir. 2003/35/EU) states:

"Article 10a
Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Member States shall determine at what stage the decisions, acts or omissions may be challenged.
What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.
The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures."

b. National Law

Sect. 3 § 7 states inter alia that the authority has to state (festzustellen) upon application of an applicant, a co operating authority or of the environmental attorney, if an environmental impact assessment is implemented according to this law (= EIA Act 2000) for a (certain) project and which facts of the annex I or of the sect. 3a § 1 to 3 (of the EIA Act 2000) are fulfilled by the project. ... The applicant of the project, the co operating authorities, the environmental attorneys and the municipality where the project is positioned have legal standing. ...

Sect. 19 § 1 number 1 of the EIA Act 2000 states the legal standing for neighbours in a procedure concerning the environmental impact assessment and gives a closer definition who can be seen as neighbours in the sense of this law. These persons finally also have the right to appeal to the Constitutional Court and to the Administrative Court (in Vienna).

Note:
Even in case of a not given legal standing in an administrative procedure to state legal facts the neighbours can lodge their claims in the following administrative procedures concerning administrative approvals for the projects according to the jurisdiction of the Administrative Court.

Would there be a difference, if an environmental organisation would have desired a legal standing in the administrative procedure?