Justice and Environment

Austria’s interpretation of the environmental liability in front of the court of justice of the European union

So far the Environmental Liability Directive (ELD) did not have many friends in Austria. Only five to six environmental damage cases were reported to the competent authorities in the past seven years. And none of them was admitted under the ELD transposing legislation. One of these cases was taken to the Court of Justice of the European Union (CJEU). Beneath others the court now needs to clarify whether owners of fishing rights have access to justice when it comes to water damages under the ELD. Further it has to decide if the Austrian Federal Environmental Liability Act (B-UHG) is compliant in excluding damage from the ELD damage definition when damage is covered by an authorisation. While the CJEU has not answered this question yet, the advocate general gave a glimpse on how the issue might be decided with his opinion delivered on 10^th of January 2017.

Starting point – hydroelectric power plant damaging the fish fauna

In 1998, a hydroelectric power plant was authorised on the river Mürz in Austria. It has been operational since 2002. The complainant in the Austrian case holds fishing rights for both banks of the river downstream from the power plant. According to him, the operation of the power plant causes significant and repeated short-term variations in the water level. This leads to separation of the outlet areas from the current of the river, rendering it impossible for small and young fish to follow the downstream flow. The fish die. The applicant submitted an environmental complaint under the B-UHG to the competent authority. His application was rejected on the basis that the operation of the power plant is covered by an operating license.

Is the Austrian Environmental Liability Act compliant with European law?

The owner of the fishing rights filed a complaint with the Highest Administrative Court (VwGH) who – beneath others - referred the following questions for a preliminary ruling:

•   Does the ELD apply also to damage which results from the operation of a facility authorised and brought into operation prior to the entering into force of the ELD?
•   Does the ELD (Art 12 and 13) stand in the way of a national provision which precludes persons holding fishing rights from initiating a review procedure?
•   Does the ELD (Article 2(1)(b)) thereof, preclude a national provision which excludes significant water damage from the notion of “environmental damage”, in the case where that damage is covered by an authorisation granted?

Advocate general indicates deficiencies in ELD transposition

Contrary to the Austrian legislator who interprets environmental damage events as single and isolated incidents, the Advocate General argues that the ELD also applies to continued and repeated events. Furthermore the time when authorization was granted shall be irrelevant for determining whether an environmental damage falls within the temporal scope of the Directive states the Advocate General.
In his opinion fishermen are also among those who are affected by environmental damage (Art 12), and are therefore entitled to submit an environmental complaint (“request for action”) once water, biodiversity or soil damage have been caused. The Austrian B-UHG, however, states that holders of fishing rights are not affected by water damages and consequently excluding them

from this access to justice right. This might be inadmissible and infringes Article 12 of the Directive.
The Advocate General argues, the legal requirement, that a damage can only be an environmental damage under the B-UHG, if it is not covered by an authorization, is not in compliance with the ELD (Article 2 (1)(a)). Also standard operation of an activity could have consequences which were not expected to happen at the time the authorization was granted. An exception of damages caused by all authorized activities already in the damage definition is incompatible with the Directive says the Advocate General.
If the CJEU follows the Advocate Generals’ opinion the Austrian legislator will have to take immediate action to adapt the B-UHG. Such a step would broaden the scope of Austrian ELD legislation and hopefully also promote its practical application.
You can read the whole opinion of the Advocate General Bobek here and the REFIT evaluation here.

Justice and Environment (J&E) is a Network of European Environmental Law Organisations from 12 different countries aiming at a better legislation and implementation of environmental law on the national and EU level to protect the environment, people and nature.