Austria Case 1

With regard to (1), groups opposing the construction of the road brought a lawsuit to the Constitutional Court of Austria, but did not succeed. The decree was still in force.

The law on federal roads was very restrictive when it came to legal standing issues: No legal standing for neigh-bours, citizen groups or NGOs. The reason citizens addressed the Constitutional Court of Austria and not the Administrative Court was that the Administrative Court was only competent for complaints against individual decisions of administrative authorities, not against ministerial decrees.

In terms of (2), the decision, according to the appli-cable law, could only be issued for a limited period of time and had expired. There was no valid permit according to the nature protection law at the moment. Taking into account the developments of the last years (Natura 2000, LIFE project) a positive decision appeared to be most unlikely in late 2001. The nature protection law of the province of Styria granted no legal standing for neigh-bours, citizens of the region or NGOs, so these groups could only act through contacts to politicians and other forms of lobbying.

Regarding (3), the contrarius actus was to be set by the local government of Styria. The “Ombudsman for nature”

(Umweltanwalt) of the province of Styria had legal standing in the procedure and brought a lawsuit to the Administrative Court, but the remedy was unsuccessful.

NGOs and citizen groups had no legal standing in the procedure.

In point (4), the authority responsible for the road construction first claimed that a water consent would not be necessary and started construction of a bridge (Sallaberger Brucke). Expertise later brought evidence that the whole infrastructure project would need a water permit. Finally a water consent procedure was started, but never came to a successful end. The Administrative Court ruled twice that the permit was granted illegally. The Federal Water Law of Austria gave legal standing to neigh-bours and all persons whose (water) rights could be affected. WWF Austria and other groups and organisations established good cooperation with affected persons and together they twice brought a lawsuit to the Administrative Court and were successful in both cases. As of late 2001 there was no water consent for the project.

With regard to (5), the nature consent (as long as it had not expired) obliged the road construction authority to set ecological compensation measures. To carry them out specific pieces of land were needed, but owners were not willing to sell and an expropriation procedure was initi-ated. The land owners went to the Administrative Court, which ruled that, according to existing legislation, expro-priation for ecological compensation measures was not possible. It soon became clear that the road could not be built legally without setting these ecological compensation measures. The expropriation issue therefore became the major obstacle for the project.

Final outcome

The court decided that the water consent was granted illegally and the expropriation was not possible. Thus there was no possibility to carry out the project under the current legal situation. In the meantime the law was changed (Lex Ennstal). According to the new provisions, the expropriation for ecological compensation measures would be possible, after carrying out an EIA. But politi-cians finally decided against the project and found a different solution (improvements along the existing road), although the decree fixing the line of the road (the building permit) still existed at the date of writing the case. One of the main reasons a (political) change was needed was that since Austria became a member state of the EU the Natura 2000 system became legally binding. But the most impor-tant factor to the success was the consequent work of NGOs and citizens’ groups providing information, exerting political pressure and using all possible legal remedies.

Related actions and campaigns

Since Austria became a member state of the EU, a new obstacle was raised for the people in favour of the road construction: The Natura 2000 system. The WWF and other groups objecting to the road project referred to the respec-tive EU legislation at an early stage to stop the project. It was proven that an endangered bird species (Wachtelkonig) lives in the project area. A comprehensive complaint was sent to the European Commission, which initiated investigations against the Austrian government.

Parallel to this, a LIFE project was carried out in the region to raise awareness.

Access to justice techniques

Neither the water law of Austria nor the nature protec-tion law of the province of Styria gives a right to the authorities to expropriate land from the owners for this specific case (ecological compensation measures).

The wells of the land owners next to the project terrain were threatened — giving the land owners legal standing in the procedure and proving that the consent was granted illegally.

Case study analysis

The main obstacles to access to justice were related to the high fees for the lawyers for appeals to the Constitutional Court and the Administrative Court in Austria. This money was provided, among others, by WWF Austria.

Close cooperation between local residents and people from the region, the WWF, the European Commission and other parties involved was an important element in the success of the case.

Using the water consent procedure — where local resi-dents have legal standing — to bring forward all relevant

arguments, and opposing the expropriation by using all possible remedies, were key elements contributing to the success of the case.

At least as important as the legal remedies was the information to all people involved (local, regional and federal politicians) about the facts based on scientific evidence put on the table by NGOs and citizens’ groups.

Comments of participants in the process

“The whole very long story showed that legal standing of neighbours and other persons likely to be affected was the prerequisite for the successful fight for the environment. A future legal standing of NGOs and citi-zen groups would be a very big step ahead. These groups then would not be dependent on co-operation being established with neighbors/affected persons and could act independently and in addition to them. I

think that implementation of the Aarhus Convention in the Austrian legislation could help or even guarantee that these improvements will be made soon.”

— Stefan Moidl

Contacts

Tel: +43-1-4881-7256 (w) E-mail: stefan.moidl@wwf.at Birgit Stangl

NETT (citizens’ association) Tel: +43-4-357-2038 (w)

A U S T R I A C A S E 1