Report on recent environmental law developments in AUSTRIA

Florian Ermacora

The change of government

The change of the Austrian government in February 2000 led to an important reshuffle of the administration of Austrian environmental policy. Most importantly the ministry for environment was merged with the ministry for agriculture. It is now called Federal Ministry for Forestry and Agriculture, Environment and Water Management. This change might be an indication that environment is not a top priority for the new government.

Public statements of the responsible Minister, Mr Molterer, show that new legislative initiatives could be expected only in exceptional cases under his responsibility. The tendency is rather to consolidate existing legislation and to deregulate. In the context of deregulation the government intention appears to be the replacement of legislation through agreements with industry. A first example for this was the agreement of the Minister with packaging industry and commerce on 11 September 2000 according to which economic operators undertake to re-use, recycle or recover through incineration 80% of all bewerage packagings.

Concrete new legislative actions will probably be limited to the necessary implementation of EC law. In this context, the working program of the new government focus on a major change regarding the permitting of installations. In a first step the compliance with the relevant EU law needs to be ensured, secondly the concentration of all requirements regarding the permitting of installations should be concentrated within one regulation.

Compliance with EC law in the area of IPPC, EIA and Seveso

Regarding the first step, the immediate achievement of compliance with EU law, the Austrian government fulfilled its promises in September 2000. Through a revision of existing legislation in the area of the Austrian industrial code ("Österreichische Gewerbeordnung"), including similar stipulations in other laws on installations, such as the Austrian Waste Management Law, and the Austrian law on Environmental Impact Assessments ("Umweltverträglichkeitsprüfungsgesetz") compliance with Directives 96/61/EC on the integrated pollution prevention and control (IPPC), Directive 85/337/EEC as amended by Directive 97/11/EC on the assessment of the effects of certain public and private projects on the environment and the so called Seveso Directive 96/82/EC on the control of major accident hazards involving dangerous substances was achieved with the exception of certain minor points.

These changes involved an enlargement of the scope of the Austrian industrial code covering now all activities listed in the Annex I of the IPPC Directive, with the exception of intensive animal breeding, which remains part of the competence of the Austrian "Bundesländer". The revision of the Austrian industrial code also led to a change of the stipulations on the permitting system achieving compliance with EC law. An important point in this context is the attempt to ensure a "concentration" of the permitting procedure. All permits shall be dealt with by one authority during one permitting procedure. This, however, does not cover laws which are part of the competence of the Austrian "Bundesländer".

In the area of Environmental Impact Assessments the European Commission started an infringement procedure under Article 226 EC-Treaty against Austria for non compliance. Against this background and in view of the judgement of the European Court of Justice (ECJ) C-431/92, E.C.R I-1995, Rz 39f; C-72/95, Rz 47ff, on the direct application of the EIA Directive by the authorities in the Member States, Austria was forced to revise the national EIA legislation. In this context, in particular the scope of the Austrian UVP Gesetz was extended. However, certain deficiencies in this respect remain.

The third area of fundamental change in Austrian Environmental law during the last year concerned the implementation of the Seveso II Directive.

Other developments

During 2001 or 2002 a major change of the Austrian waste management law could be expected. In particular, industry is complaining about the complexity of existing legislation, which comprises one federal and nine state framework regulations on waste as well as more than a dozen of regulations on specific waste streams. Work on a revision of Austrian waste management law is also due to an infringement procedure, launched by the European Commission, for not complying with the key definitions set out in European legislation.

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