Will new state targets lead to reduced environmental protection?

Introduction
Vienna International Airport
What is planned?
Comment

Introduction

Since the beginning of the Second Republic, the Constitution has provided so-called 'state targets', which have guided the government to declare certain interests to be substantial. The targets are broadly diversified and include, for example, state targets on:

• wide-ranging state defence;
• a nuclear-free Austria;
• schools and education;
• securing the independence of broadcasting; and
• sustainability.

The approval procedure for the third runway at Vienna International Airport has now prompted the government to strengthen Austria as a business location. This should be achieved through an amendment to the Federal Constitutional Law on Sustainability(1) which, among other things, contains a state target on creating comprehensive environmental protection.

Vienna International Airport

In 2017 the Federal Administrative Court rejected Vienna International Airport's application for approval to build a third runway in the first instance (for further details please see "Climate impact: game changer for third runway at Vienna International Airport"). The court based its decision on, among other things, the state target of environmental protection. The Constitutional Court reversed this decision. In the second instance, the Federal Administrative Court approved the third runway with further regulatory requirements (for further details please see "Constitutional Court raises hope for third runway at Vienna International Airport").

What is planned?

The government now plans to integrate the state target of creating a competitive business location into the Federal Constitutional Law on Sustainability.(2) The aim of the new state target is to oblige the enforcement bodies to reconcile public interest in a competitive location policy with other public interests in each individual case. The goal should also be to ensure framework conditions to create and secure jobs.

To achieve these objectives, a Location Development Act (for further details please see "Automatic permits for certain energy infrastructure projects") in connection with the state target is also being planned,(3) which aims to accelerate complex infrastructural environmental impact assessment approval procedures. Among other things, the federal government will be able to issue a confirmation for location-relevant projects, which will allow plant approval procedures to be accelerated. Such a confirmation would lead to an automatic approval if the competent authority or court does not decide on the approval within one year.

Both legislative proposals remain under evaluation.

Comment

The government's reactions to strengthening Austria's competitiveness are quite understandable from an economic policy prospective. However, from a legal standpoint, the attempt is only partially convincing, as the relevant laws generally already provide for public and economic interests that must be taken into account. Further, the state targets, in accordance with jurisprudence and their broad linguistic structure, have largely only a programmatic effect and fail to grant any subjective rights to individuals.(4) This substantially distinguishes them from fundamental constitutional rights.

It is therefore questionable as to what will change with the new regulations. The fact is that environmental protection interests have not been prioritised over other determinants binding the government to date. Thus, state targets per se are neither an obstacle nor an advantage to completing a pending approval procedure. Rather, this would require a final determination act (law or ordinance) which, due to its concrete effect, could be applied in identifiable cases.

The final determination of the state target (ie, the planned Location Development Act) is also controversial due to concerns based on constitutional and European law. For example, automatic approval after a certain period would clearly contradict the Environmental Impact Assessment Directive (85/337/EEC). In order to reach a satisfactory solution in the current legislative process, far-reaching revisions of the draft would be necessary.

For further information on this topic please contact Christoph Jirak or Philipp Strondl at Schoenherr by telephone (+43 1 53 43 70), or email (c.jirak@schoenherr.eu or p.strondl@schoenherr.eu). The Schoenherr website can be accessed at www.schoenherr.eu.

Endnotes

(1) Federal Constitutional Law on sustainability, animal protection, broad environmental protection, guarantee of water and food supply and research, published in Federal Law Gazette I 2013/111, as amended.

(2) Legislative proposal 25/ME XXVI. GP.

(3) Legislative proposal 67/ME XXVI. GP.

(4) For example, Constitutional Court 4 March 2015, G 167/2014; 12 June 2008, B 1085/07; 12 December 2000, B 1462/97.