1 Main environmental regulations
What are the main statutes and regulations relating to the environment?
As Austrian environmental law is shaped by the Austrian federal legal system, the Austrian polity and allocation of competences is outlined in the following. Austria is a federal state, and governmental responsibilities are allocated to three levels of territorial authority:
- the federal state;
- the nine provinces; and
- the local authorities (municipalities).
Pursuant to the Federal Constitution, BGBl 1/1930 idF BGBl I 60/2011, governmental responsibilities for environmental issues are divided between the federal state and the provinces. While certain environmental issues (for example, construction and maintenance of waterways) are entirely the responsibility of the federal state (direct federal administration), others (for example, nature conservation) rest entirely with the provinces. In certain areas (for example, waste management and forestry), the federal state acts as legislator, while the provinces are responsible for administering environmental law adopted on a federal level (indirect federal administration). In recent years, the EU has become the main policy driver for environmental law. Thus, European regulations and directives relating to environmental issues must also be taken into consideration. While directives have to be transformed into Austrian law, regulations are directly applicable in Austria.
The following laws and ordinances have to be considered as the main Austrian environmental regulations:
- the Environmental Impact Assessment Act 2000, BGBl 1993/697 idF BGBl I 2009/87;
- the Trade Act, BGBl 1994/194 idF BGBl I 2010/66;
- the Federal Waste Management Act 2002, BGBl I No 2002/102 idF BGBl I 2009/115;
- the nine Waste Management Acts of the provinces;
- the Waste Register Ordinance, BGBl II 2003/570, idF BGBl II 2008/498;
- the Water Act, BGBl 1959/215 idF BGBl I 2011/14 and more than 35 regulations on water;
- the Clean-up of Contaminated Sites Law, BGBl 1987/79 idF BGBl I 2009/52;
- the Directive on Funding Clean-Up of Contaminated Sites 2008;
- the Forest Act, BGBl 1975/440 idF BGBl I 2007/55;
- the Chemicals Act, BGBl I 1997/53 idF BGBl I 2009/88;
- the Chemicals Ordinance, BGBl II 2000/81 idF BGBl II 2008/393;
- the Public Administration Criminal Law, BGBl 1991/52 idF BGBl I 2009/135;
- the Criminal Act, BGBl 1974/60 idF BGBl I 2010/38;
- the Air Pollution Impact Act, BGBl I 1997/115 idF BGBl I 2010/77;
- the Ozone Act, BGBl 1992/210 idF BGBl 2003/34;
- the Federal Act on a System for Trading Allowances, BGBl 2004/46 idF BGBl 2010/111;
- the Industrial Accident Ordinance, BGBl II 2002/354 idF 2010/14;
- the Environmental Subsidies Act, BGBl 1993/185 idF BGBl 2009/52;
- the Air Pollution Act for Boiler Facilities, BGBl 150/2004 idF 2010/65;
- the Mineral Resources Act, BGBl 1999/38 idF 2010/65;
- the Federal Environmental Liability Act, BGBl 2009/55;
- the nine Building Acts of the provinces;
- the nature conservation laws of the provinces;
- the Land Use Planning Acts of the provinces; and
- the fishery laws of the provinces.
2 Integrated pollution prevention and control
Is there a system of integrated control of pollution?
As the environmental provisions on pollution prevention and control are spread over a considerable number of laws and regulations (for example, the Water Act, the Air Pollution Impact Act, the Forest Act, the Federal Waste Management Act 2002), Austria does not adopt an integrated approach to regulating emissions into the environment. The only exception is set out in the EIA Act (see question 18, environmental impact assessments). Partially consolidated permitting procedures are provided under the Trade Act and the Federal Waste Management Act. For example, under the Trade Act most of the environmental issues governed by federal law are dealt with in a single consolidated plant permit.
3 Soil pollution
What are the main characteristics of the rules applicable to soil pollution?
Soil and groundwater contamination are not subject to an integrated regulatory regime, but applicable provisions are spread over a considerable number of laws and regulations (for example, the Trade Act, the Federal Waste Management Act, the Federal Environmental Liability Act, the Forest Act and the Water Act). Furthermore, the Clean-up of Contaminated Sites Act and the Directive on Funding Clean-Up of Contaminated Sites 2008 stipulate provisions for the remediation of contaminated sites. However, the Clean-up of Contaminated Sites Act is only applicable if no other law or regulation offers an adequate legal basis for remediation measures. The Directive on Funding Clean-Up of Contaminated Sites 2008 sets out rules with regards to the public funding of remediation measures.
The main principle underlying provisions regarding the liability for contaminated land is the 'polluter pays' principle (ie, the polluter is liable for remediation of contaminated soil). Liability in this context means responsibility to take proper remediation measures and to bear the respective remediation costs. However, under certain conditions, the property owner (or his or her legal successor) may be held liable for soil contamination. If a site is identified as contaminated, the regulatory authority must first try to trace the 'polluter'. 'Polluter' is defined in the broadest sense and includes any person or entity that causes pollution.
In practice, the Water Act is the most important legal basis for authorities to require remediation measures. The competent authorities may require the polluter to take proper preventive or remediation measures or to bear the costs for measures taken, or both. However, if no polluter can be traced by the competent authorities (eg, the polluter is unknown or does not exist any more) and the property owner knowingly agreed with the circumstances or measures that caused the threat or voluntarily tolerated them by neglecting any reasonable defence, the property owner may be held secondarily liable to take proper preventive or remediation measures or to bear the costs, or both. Similar provisions are stipulated in the Federal Waste Management Act. Under this Act, if certain conditions are met, not only the polluter and property owner may be held liable but also the waste possessor.
In addition, the Federal Environmental Liability Act applies to direct and indirect contamination of the land that creates a significant risk to human health. The liability scheme applies to damage resulting from occupational activities where it is possible to establish a causal link between the damage and the activity in question. Where there is an imminent threat of environmental damage, the competent authority will require the operator (the potential polluter) to take the necessary preventive measures or will take such measures itself and recover the costs incurred at a later date. Where contamination has occurred, the competent authority will require the operator concerned to take the necessary restorative measures or will take such measures itself and recover the costs incurred at a later date. Where several instances of environmental damage have occurred, the competent authority may determine the order of priority according to which they must be remedied. For damage affecting the land, the Federal Environmental Liability Act requires that the land concerned be decontaminated until there is no longer any serious risk of negative impact on human health (see question 11).
Polluter liability is a strict liability. However, the blameworthiness of an environmentally damaging conduct is decisive as to the eligibility for funding of remediation and safeguard measurements. Financial assistance may be available for remediation and safeguard measures under the Directive on Funding Clean-Up of Contaminated Sites 2008. However, the financial assistance is limited to the clean-up of contaminations that occurred before 1 July 1989. No financial assistance of clean-up measures is granted if the applicant caused the contamination in a premeditated or grossly negligent manner. In cases of high public interest, public funding may be granted up to 95 per cent of the eligible clean-up costs.
4 Regulation of waste
What types of waste are regulated and how?
The definition of waste, and in particular when waste ceases to be waste, is very complex and a controversial legal question.
According to the EU Waste Framework Directive, 'waste' is any substance or object that the holder discards or intends or is required to discard. The term 'discard' includes disposal and recovery operations set out in the annexes to the Waste Framework Directive.
In the Austrian Federal Waste Management Act waste is defined as all moveable objects in the categories listed in the annex:
- that the holder wishes to dispose of or has disposed of; or
- whose collection, storage, transport and treatment as waste are required in the public interest (section 1, paragraph 3).
Objects that require collection, storage, transport and treatment as waste in the public interest shall constitute waste, even if they have combined with the soil and have a negative impact on the environment. The public interest may also require that moveable objects are collected, stored, transported and treated as waste if a pecuniary consideration may be obtained for them.
In any event, due to public interest the collection, storage, transport and treatment according to the Federal Waste Management Act is not required if an object:
- is new according to generally accepted user standards; or
- is used for its intended purpose in accordance with generally accepted user standards.
Due to public interest the collection, storage, transport and treatment of solid, semi-liquid and liquid manure or other organically compostable materials as waste is not required if these materials result from agricultural or forestry operations and are brought to an admissible use in the immediate realm of an agricultural or forestry operation.
The Federal Waste Management Act differentiates between nonhazardous and hazardous waste. Hazardous waste is marked as 'hazardous' in the Austrian Waste Register Regulation.
The transfer of waste triggers the obligation to provide documentation. Any person who transfers hazardous waste shall declare the type, quantity, origin and whereabouts of the hazardous waste as well as its identification number in a waybill. As of the receipt's confirmation, the recipient is responsible for the proper handling of the hazardous waste.
The construction and operation of a waste treatment plant has to be licensed by the competent authority. Waste treatment covers the recovery as well as the disposal of waste.
Waste treatment has to comply with the treatment principles of the Federal Waste Management Act. The storage, collection and treatment of waste is prohibited unless it is conducted in adequately licensed facilities. Special treatment obligations exist for waste containing PCBs (polychlorinated biphenyls), waste oil, waste containing persistent organic pollutants and the dumping of hazardous waste. The Waste Treatment Regulation, BGBl II No. 2004/459 idF BGBl II 2006/363, provides minimum requirements for the storage, collection and treatment of special kinds of waste, such as electronic waste, accumulators and PCBs.
The regulation on waste electrical and electronic equipment requires the producers of electrical and electronic equipment to take back the used products free of charge. For this purpose, specific collection systems have been established. The costs of the collection systems are borne by the producers of such equipment.
In the case of non-compliance with the Federal Waste Management Act, the violator may be obliged to take proper measures to re-establish the former legal status (for instance, the separation of different types of waste that were unlawfully mixed or the removal of unlawfully stored waste). Furthermore, the authority may issue formal orders to take proper remediation measures with respect to land that was contaminated by unlawful waste disposal. These orders mainly concern unlawful landfills.
In principle, the polluter who fails to comply with the waste management provisions can be held liable. Liability under the Federal Waste Management Act means the obligation to re-establish the former legal status, including the obligation to remediate contaminated land sites. However, if the polluter is unknown or cannot be obliged to take proper (remediation) measures, the authority may order the property owner to take remediation measures and pay the costs for measures taken by the authority, provided that the contamination was caused by unlawful waste storage or unlawful waste disposal, or both, and the property owner has tolerated or has agreed to this unlawful storage or disposal or has failed to take reasonable safety measures to prevent the contamination. The same applies to the legal successor of the property owner, provided that the successor knew or should have known of the waste disposal. The liability of the property owner and his or her legal successor may be limited under certain conditions if the contaminating activities were conducted prior to 1 July 1990. If certain conditions are met, the waste possessor may be liable under the Federal Waste Management Act as well.
5 Regulation of air emissions
What are the main features of the rules governing air emissions?
The Air Pollution Impact Act deals with areas heavily affected by air pollution. The Air Pollution Impact Act requires the governors of the provinces to formally designate redevelopment areas if the mandatory limit values for public health are exceeded in an area. As a consequence, the competent authority has to implement air pollution reduction measures in order to meet the limit values or targets of the Air Pollution Impact Act in these areas in the long term. The provided reduction measures are compiled in air quality programmes. The competent authorities must consider the limit values and targets stipulated in the Air Pollution Act in consolidated plant permit procedures as well as in EIA permitting proceedings.
Major pollutants are PM10, NOx, CO² and SO² emissions. Another serious local air pollution problem in Austria is groundlevel ozone. Consequently, Austria has adopted the Ozone Act, which requires monitoring and authorises the state governors to take emergency measures, including traffic bans and restrictions on industrial activities.
Carbon dioxide emissions are governed by the Emission Allowances Act.
6 Climate change
Are there any specific provisions relating to climate change?
Pursuant to its obligations under the Kyoto Protocol and EU agreements based thereon, Austria has undertaken to reduce its greenhouse gas emissions by 13 per cent from 1990 levels in the period 2008 to 2012.
Other than Regulation (EC) 2216/2004 on the establishment of a standardised and secure system of registries in accordance with Directive 2003/87/EC and Decision 280/2004/EC, amended by Regulation (EC) 916/2007, the legal basis for the statutory provisions governing emissions trading in Austria are the Emission Allowances Act (as amended), the Allocation Ordinance 2008-2012 providing the national allocation plan for the second trading period, the Monitoring, Reporting and Verification Ordinance, the Act on Environmental Funding, the Registry Ordinance and the Auctioning Ordinance.
Along with technical provisions, the aforementioned national laws stipulate in particular the rights and obligations of owners and traders of emission allowances, of the operators governed by the Emission Allowances Act and of the administrators of the Registry. They also regulate the concerned interfaces and the (data) communication with the transaction logs of the EU (Community Independent Transaction Log) and the UNFCCC (International Transaction Log), which enable communication between the national registries.
The Registry entity Umweltbundesamt GmbH has been mandated with the technical implementation of the national registry, while the Registry Service Office 'Emission Certificate Registry Austria GmbH' (ECRA) is responsible for the operation of an electronic bookkeeping system for the administration of the emission allowances. Essentially, ECRA is in charge of account holders. The Umweltbundesamt GmbH liaises with the competent authorities, the EU Commission and the UNFCCC Secretariat. The Registry is also the key instrument for monitoring compliance with the emissions reduction commitments.
During the second carbon trading period (2008–2012), the Austrian government will allocate an average of 30.33 million emission allowances to installations participating in the EU ETS per year. Pursuant to the national allocation plan and the Auctioning Ordinance, 2 million thereof will be auctioned, accounting for 1.3 per cent of the total amount.
Austria has formally used a tradable green certificate (TGC) system for only a short period of time, linked to its obligation to small-scale hydro production. However, the system was never fully operational and was replaced by a new feed-in tariff scheme.
Nevertheless, Austria was the first EU country to introduce the Guarantees of Origin (GoO) – as required by the Renewable Electricity Directive (2001/77/EC) – and to allow foreign certificates meeting the GoO requirements to be imported.
Revision of the EU ETS – third phase 2013-2020
The revised EU ETS Directive (2009/29/EC) will take effect from 2013 onwards. One core element of the revamp (and the third phase of the EU ETS from 2013–2020) will be a single EU-wide cap on emission allowances replacing the current system of 27 national caps implemented through national allocation plans (NAPs). In 2013, the absolute EU-wide quantity of allowances amounts to 1,926,876,368. As an EU-wide reduction target amounting to 21 per cent from 2005 levels applies to all installations under the EU ETS until 2020, the total quantity of allowances to be issued from 2013 onwards will be annually decreased by a linear factor of 1.74 per cent (35,374,181 allowances). Another core element is auctioning. From 2013 onwards, auctioning will become the basic principle for allocating allowances, successively pushing back the current system under which the vast majority of allowances are given away for free by governments. Auctioning creates a stronger incentive for businesses to take early action to reduce emissions, complies better with the 'polluter pays' principle and will increase the efficiency, transparency and simplicity of the EU ETS. Austria does not meet the conditions set in article 10c of the EU ETS Directive. Consequently, there will be no transitional allocation of allowances for free in the Austrian power sector.
Furthermore, pursuant to the Effort Sharing Decision (406/2009/ EC), Austria is required to reduce its greenhouse gas emissions in the non-ETS sector by 16 per cent from 2005 until 2020. The expiry of the Kyoto Protocol has no direct effect on the EU laws regarding the combat of climate change.
In particular with a view to achieving the EU targets for the reduction of GHG in the non-ETS sector, Austria adopted the Climate Mitigation Act in 2011. The Act obliges the federal state and the provinces to 'negotiate' reduction targets for certain sectors (energy demand, energy supply, transport, industry, agriculture, waste management, fluorinated gases) and respective measures to be taken. Further, the Act foresees to impose financial sanctions in case of non-achievement of the maximum emission targets. It does not contain any GHG reduction measure itself and can be seen as 'governance law'. The outcome of the negotiations (targets, measures, sanctions) shall be part of separate agreements between the federal state and the provinces. However the sector targets shall be laid down in an amended annex II of the Act at a later stage. The Climate Mitigation Act also establishes a National Climate Mitigation Committee and a National Climate Mitigation Advisory Board in order to discuss fundamental principles and basics of a long-term national climate strategy and to assist and prepare the negotiations.
7 Protection of fresh water and seawater
How are fresh water and seawater, and their associated land, protected?
In Austria, water is mainly protected under the Water Act and corresponding regulations on waste water disposal. As Austria is a landlocked country, Austrian provisions do not deal with seawater protection. Nevertheless, the Water Act provides a broad-based strategy for water protection.
The Water Act differentiates between publicly owned water and privately owned water. Publicly owned water may be used by everyone without special authorisation, provided that the utilisation does not exceed general use (for example, bathing, scooping and use as an ice rink for sport activities). If the intended utilisation exceeds general use, a permit is required. For example, the operation of a plant that is linked to a specific water use or water influence has to be permitted by the regulatory authority (for example, water use for production facilities or waste water disposal to water bodies). Basically the same applies to privately owned water. Water utilisation exceeding general use is prohibited unless the user holds a water use permit. Unlike publicly owned water, the use of privately owned water is generally reserved to the owner of the land. Thus, use of private water requires the landowner's consent.
In principle, the issue of a water use permit requires that no significant impairment of public interests will occur upon the water use. The public interests concerned are listed in section 105 of the Water Act. Moreover, the application of the best available techniques is a precondition to obtaining a water use permit. In the case of waste water disposal it has to be ensured that the relevant emission limits, determined by specific regulations, will not be exceeded. The relevant emission limits are spread over a large number of branchspecific laws and regulations.
The Austrian regulatory regime for water pollution is further characterised by the implementation of the (EU) Water Framework Directive 2000/60/EC into national law. The Water Act has adopted most of the Directives' provisions concerning the protection and improvement of waters. For example, it provides a general prohibition to impair the shape of the waters. The impairment of waters requires a permit that is granted only exceptionally and under very stringent conditions. In order to assess whether a project or a specific activity results in an impairment of the current water status, technical experts have to examine the water status under consideration of specific technical ordinances. Moreover, the regulatory authority may update and amend existing water use permits in order to improve the shape of waters. In 2011, the Water Act was substantially amended. In order to reach the water quality goals under the Water Framework Directive 2000/60/EC, the Water Act now provides for a specific water restoration mechanism applying to existing installations. Under this mechanism, operators of hydro power plants (HPP) can be obliged to make substantial investment in retrofitting of their HPPs. Further, operators of HPPs currently providing no or insufficient residual water may be obliged to ensure that sufficient residual water is returned to the rivers. This obligation may be linked to substantial losses in energy production. Moreover, upstream (and most probably downstream) fish migration facilities have to be installed by the HPP operators. In the context of these obligations the Water Act provides for transition periods. However, HPPs located in primary restoration areas would have to carry out the measures until 21 December 2015 at the latest.
The Water Act sets out two provisions concerning the liability for contamination of water bodies. One provision regulates the liability for endangering water bodies, while the second provision applies to soil and groundwater contaminations.
As regards the liability for endangering water bodies, the primary addressee of a formal order to take proper measures to prevent water damages (issued by the public authority) is the person who caused the threat of pollution (the polluter). This means that the polluter is the person who is in charge of the assets or activities, or both, which caused the threat to the water body. If the polluter fails to take proper measures or in the case of imminent danger the competent authority may take preventive measures on its own. In such case the polluter is obliged to reimburse the authority for the costs incurred. If the polluter is unknown or cannot be obliged to take proper measures in order to prevent water damages, the public authority may turn to the property owner to take the respective measures or bear and pay the costs for measures taken by the authority, or both, provided that the property owner has tolerated or has agreed to the activity which endangers the water body or has failed to take reasonable preventive measures. The same applies to the legal successor of the property owner, provided that the successor knew or should have known about the endangering activity. The liability of the property owner and his or her legal successor may be limited, under certain conditions, if the endangering activities were conducted prior to 1 July 1990.
Liability in connection with soil and groundwater contamination caused by non-compliance with the Water Act means that the polluter must:
- take proper measures to prevent further damages (safeguard measures);
- take remediation measures (clean-up); or
- rebuild installations erected without the required water use permit.
The competent authority may issue respective formal orders to the polluter ex officio. Moreover, everyone who is affected by the soil or groundwater pollution, or both, may file an application to issue formal orders towards the polluter.
If the polluter does not comply with the remediation obligations or remediation orders, or both, the authority may take proper remediation measures on its own. In such case the polluter has to pay the costs of the remediation measures taken by the authority.
In principle, the polluter who caused the soil or groundwater contamination (by non-compliance with the provisions of the relevant law or permits), or both, is liable and obliged to remediate the contamination. However, if the polluter is unknown or cannot be obliged to take proper remediation measures, the authority may oblige the property owner to take remediation measures or to pay the costs for the measures taken by the authority, or both, provided that the owner has tolerated or has agreed to the contaminating activities. The owner can also be held liable if he or she failed to take proper measures in order to prevent the contamination.
The same applies to the legal successor of the property owner, provided that the contamination was caused by waste disposal and the successor has known or must have known of the disposal. In any case, the legal successor is not liable for soil or groundwater contamination, or both, caused by activities other than waste disposal. The liability of the property owner and his or her legal successor may be limited, under certain conditions, if the contaminating activities were conducted prior to 1 July 1990.
In addition, the Federal Environmental Liability Act applies to direct or indirect damage and imminent threat of damage to the aquatic environment resulting from occupational activities, where a causal link can be established between the damage and the activity. If there is an imminent threat of damage to the aquatic environment, the competent authority will require the operator (the potential polluter) to take the necessary preventive measures, or will take such measures itself and recover the costs incurred. If there is damage to the aquatic environment the competent authority will require the operator concerned to take the necessary restorative measures, or will take such measures itself and recover the costs incurred. Where several instances of environmental damage have occurred, the competent authority can determine the order of priority according to which they must be remedied. The Federal Environmental Liability Act is aimed at restoring the environment to how it was before it was damaged. For this purpose, the damaged natural resources or impaired services must be restored or replaced by identical, similar or equivalent natural resources or services.
8 Protection of natural spaces and landscapes
What are the main features of the rules protecting natural spaces and landscapes?
Issues related to the protection of natural spaces and landscapes lie entirely within the responsibility of the provinces. Therefore, the respective regulations vary from one province to another. The general objective of these regulations is to ensure the sustainable protection of nature and landscape. Each protection system contains various classes of protection, for example, Natura 2000 sites, nature conservation areas, protected landscapes, natural monuments and national parks. Depending on the form and class of protection, business and industrial activities are generally prohibited or restricted within such protection areas.
9 Protection of flora and fauna species
What are the main features of the rules protecting flora and fauna species?
Austria is an EU member state and has implemented Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (FFH Directive and Natura 2000). Austria has designated approximately 12 per cent of its territory as special areas of conservation (SPA; section 4 of the FFH Directive). In these areas, deterioration of natural habitats and disturbance of species for which the areas have been designated are generally prohibited. In general, any project not directly connected with or necessary to the management of the Natura 2000 site is subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. These assessments are required where a project or plan may give rise to significant effects upon a Natura 2000 site. The competent authority may authorise the project only after having ascertained that it will not adversely affect the integrity of the site concerned. In the case of a negative assessment, a project may only be realised for imperative reasons of overriding public interest, including those of a social or economic nature. However, necessary compensatory measures shall be taken to ensure that the overall coherence of Natura 2000 is protected.
The protection of flora and fauna species is one of the main objectives of national parks and nature conservation areas. All activities that might have a negative effect on protected species are prohibited in such protection areas.
Moreover, the provinces' Nature Conservation Acts stipulate various regulations with respect to the protection of certain plant varieties and animals (for example, bans on the collection of plants and bans on hunting certain animals).
10 Noise, odours and vibrations
What are the main features of the rules governing noise, odours and vibrations?
Rules and limits concerning noise, odours and vibrations are spread over a considerable number of laws and regulations, both at the federal and the provincial level, such as the Trade Act, the Waste Management Act and the Mineral Resources Act at the federal level, and the Building Acts and Nature Conservation Acts at the provincial level.
An operator has to apply for a plant permit pursuant to the Trade Act if disturbance (noise, odours or vibrations) is caused by his or her plant. As set out in question 3, the permit procedure for plants pursuant to the Trade Act provides for a partially 'consolidated permit procedure' in which all emission requirements – including those governing noise, odours and vibrations – are mutually applied by the relevant regulatory authority. In the majority of cases, the district authority is competent to issue such plant permits.
In general, the competent authority may not grant a plant permit if the emissions exceed the level of reasonability as primarily defined by the Land Use Planning Acts of the provinces. Nonetheless, the emissions' reasonability has to be assessed on a case-by-case basis. In cases where the protected natural spaces are affected, the competent authority may refuse to grant a permit pursuant to the respective Nature Conservation Act if the emission gives rise to a significant disturbance of the protected wildlife.
11 Liability for damage to the environment
Is there a general regime on liability for environmental damage?
The Austrian General Civil Code provides for strict private liability as to impacts from neighbouring properties. Thus, a property owner can seek injunctive relief against his or her neighbour if the impact exceeds a level that is customary for the locality and the customary use of the owner's property is substantially impaired. However, if the impact is caused by a mining operation or by an administratively authorised plant that exceeds its permissible emissions, the property owner cannot seek injunctive relief, but has a right to claim damages. However, plants that are subject to a 'summary permitting procedure' do not benefit from the aforementioned exemption. Thus, a neighbouring property owner may obtain a stop of operations by injunctive proceedings.
Furthermore, Austrian tort law provides civil claims for environmental damages resulting from intentional or negligent infringements of environmental protection provisions under administrative law. However, these claims promise to be rewarding only if the particular provision aims at the protection of individual goods.
In general, environmental damages are primarily subject to administrative law and not civil law. Nonetheless, several administrative provisions provide for strict private liability, such as the liability for damages by radioactivity according to the Act on Nuclear Liability, BGBl I 1998/170 idF BGBl I 2003/33.
As authorities must intervene ex officio if they are informed of environmental damages or imminent threats thereof, almost all incidents with environmental effects are dealt with in administrative proceedings. Private individuals may inform the competent authority of the environmental damage without the risk of bearing any administrative costs.
The Federal Environmental Liability Act (B-UHG) applies to direct or indirect damages and imminent threats of damage to the aquatic environment, and direct or indirect contaminations and imminent threats of contamination of soil.
Only operators who pursue one of the occupational activities listed in annex 1 B-UHG may be held liable. In a case where an operator causes an imminent threat of environmental damage, the authority will either order the operator to take the proper preventive measures or take such measures on its own. Where environmental damage has already occurred, the public authority will either order the operator to take the proper restorative measures or take such measures itself. In both cases the public authority is eligible to recover the costs incurred from the operator at a later date.
In a case where the operator cannot be ordered to bear and pay the costs for preventive or restorative measures, the public authority may order the property owner to bear the costs of the respective measures provided that the property owner has tolerated or has agreed to the activity that endangers the water body or has failed to take reasonable preventive measures. The same applies to the legal successor of the property owner, provided that the successor knew or should have known of the endangering activity.
Furthermore, the B-UHG stipulates that, in the case of corporate restructurings with universal legal succession (for example, a merger), the duty to bear the costs of remedial measures is passed on to the legal successor.
Only environmental damages that occurred after 20 June 2009 are covered by the B-UHG; consequently, operators, property owners and their legal successors cannot be held liable for imminent threats of environmental damages and contaminations that occurred or were caused before that date. For soil and water contamination, please see questions 3, 4 and 7.
12 Environmental taxes
Is there any type of environmental tax?
Austrian 'environmental taxes' can be classified in four categories:
- environmental impact taxes (eg, contaminated site contributions, waste collection fees, sewage charges);
- traffic taxes (eg, standard consumption taxes, motor vehicle tax, engine-related insurance tax, lorry toll, motorway permit sticker);
- energy taxes (eg, mineral oil tax, energy tax on electricity, natural gas and coal); and
- resource taxes (eg, water charges, fishery and hunting charges, mineral resource charges).
Hazardous activities and substances
13 Regulation of hazardous activities
Are there specific rules governing hazardous activities?
In order to ensure compliance with the Austrian environmental laws and regulations, environmentally hazardous activities and operations are subject to authorisation. Such activities or operations may not be started without a permit. A permit states the conditions under which a hazardous activity or operation may be carried out. The competent authority may refuse a permit if the hazardous activity or operation is not permissible under the Austrian environmental laws and regulations.
Furthermore, both the Trade Act and the Federal Waste Management Act provide lists of hazardous substances and mixtures. If the listed substances or mixtures are used beyond given thresholds, the plant operator of the facility is basically obliged to take additional safety measures (see question 15).
14 Regulation of hazardous products and substances
What are the main features of the rules governing hazardous products and substances?
The REACH Regulation applies to the manufacture, placing on the market or use of substances on their own, in preparations or in articles and to the placing on the market of preparations. The REACH Regulation follows a substance-based approach: the obligations do not directly apply to preparations and articles, but to the substances contained in them. However, the REACH Regulation applies to both hazardous and non-hazardous chemicals. All manufacturers and importers must identify and manage risks linked to the substances they manufacture and place on the market. For substances produced or imported in quantities of one tonne or more per year per company, manufacturers and importers need to submit a registration dossier, which has to be submitted to the European Chemicals Agency (ECHA). Where appropriate, authorities may select substances for a broader substance evaluation to further investigate substances of concern.
The REACH Regulation also provides an authorisation system aiming to ensure that substances of very high concern are adequately controlled and progressively substituted by safer substances or technologies or only used where there is an overall benefit for society from using the substance. These substances will be prioritised and over time included in annex XIV. Once they are included, industry will have to submit applications to the ECHA for authorisation for continued use of these substances. In addition, EU authorities may impose restrictions on the manufacture, use or placing on the market of substances causing an unacceptable risk to human health or the environment.
Manufacturers and importers must provide their downstream users with the risk information they need to use the substance safely. This will be done via the classification and labelling system and safety data sheets, where needed.
Substances can be exempted from all or a part of the obligations under the REACH Regulation.
Furthermore, the CLP Regulation is the new European Regulation on Classification, Labelling and Packaging of chemical substances and mixtures (meaning the same as the term 'preparations'). The CLP Regulation introduces a new system for classifying and labelling chemicals based on the United Nations' Globally Harmonised System (UN GHS). If a substance or a mixture is hazardous, it has to be labelled so that workers and consumers know about its effects before they handle it. There are certain timelines for industry to classify and label their substances in line with the CLP rules. Also, industry must notify hazardous substances and mixtures to a central inventory.
Besides the REACH and CLP Regulations, the Austrian Chemicals Act and its subsequent ordinances have to be taken into consideration as they deal with hazardous substances, mixtures and products. For example, the Chemicals Act provides Austrian-specific rules for the placing on the market of toxic and very toxic substances and mixtures. The Biocidal Products Act and the Biocides Regulation on Existing Active Substances specify the requirements for the placing on the market. A biocidal product containing a new active substance may not be placed on the market for the first time until its authorisation or registration has been obtained. Products containing an existing active substance are not subject to application, but to notification requirements. Furthermore, the Biocidal Products Act contains provisions concerning labelling, advertising and notification requirements, as well as detailed monitoring measures.
15 Industrial accidents
What are the regulatory requirements regarding the prevention of industrial accidents?
As regards the prevention of industrial accidents, the EC-Seveso II Directive is implemented in particular through the Industrial Code, the Federal Waste Management Act and the Industrial Accident Ordinance. The aforementioned regulations stipulate the legal basis for precautionary measures to avoid hazards and for provisions to limit the negative effects in the event of an incident. There are two different classes of hazardous potential that result in different safety requirements. In general, the applicable class of hazardous potential depends on the amount of hazardous substances handled in the facility. If a facility meets the criteria of the higher class of hazardous potential, the operator has to provide the following safety measures:
- a safety report;
- an internal emergency plan;
- a safety concept;
- a safety management system;
- a consideration of the 'domino effect'; and
- respective documents.
However, if a facility meets the criteria of the lower class of hazardous potential, no safety management system is required. Furthermore, the operator has to report an accident to the relevant authority immediately and must further provide the steps intended to limit the damage and to prevent further accidents.
Environmental aspects in transactions
16 Environmental aspects in M&A transactions
What are the main environmental aspects to consider in M&A transactions?
Environmental due diligences particularly focus on soil and groundwater contamination on the target company's property. Furthermore, it must be assessed whether the target company has caused contaminations on other properties. The review of the public registers on potentially contaminated lands is recommended in order to identify potential remediation or securisation requirements. Moreover, properties listed in such registers might be subject to restrictions under building laws.
As almost all activities and operations with potential environmental impact need to be authorised, a substantial permit check is conducted to ensure that the activities and operations comply with all material or formal environmental requirements.
Moreover, it is important to take into consideration whether the target company is located in or close to a protection area. As stricter licensing requirements or building bans may apply, future enlargements may be impeded or even restricted.
In the event of an asset deal involving the purchase of real estate, the stipulation by the Water Act and the Federal Waste Management Act of a secondary liability of the (new) owner, if certain conditions are met (see questions 3, 4 and 7), must be considered. If the target company is subject to the Emission Allowances Act, the purchaser has to assess whether the target company has enough allowances to cover its CO² emissions. Furthermore, allocated allowances should be transferred to the purchaser.
17 Environmental aspects in other transactions
What are the main environmental aspects to consider in other transactions?
Environmental issues are generally related to the type of business conducted and not to the kind of transaction in question. Thus, there are no special environmental aspects to consider in financial projects, IPOs, corporate restructuring and bankruptcy proceedings. As to real estate transactions, please see question 16.
18 Activities subject to environmental assessment
Which types of activities are subject to environmental assessment?
An environmental impact assessment (EIA) must be carried out for projects as listed in annex 1 of the EIA Act. In particular, the following may require an EIA:
- waste management projects, for example, hazardous waste treatment plants;
- infrastructure projects, for example, construction of roads or railways;
- energy plants, for example, oil and gas facilities, thermal power stations, combustion plants and plants for harnessing wind power;
- water projects, for example, hydropower plants; and
- plants for chemical production.
Under certain circumstances, modifications of the aforementioned projects may also require an EIA.
Plans and programmes may be subject to a strategic environmental assessment (SEA). The rules on SEAs are set out in numerous federal and provincial laws, for example the Federal Waste Management Act and the Land Use Acts of the provinces.
19 Environmental assessment process
What are the main steps of the environmental assessment process?
The following outlines the main steps of the environmental assessment process:
- filing the application for a licence (including submission of the environmental impact statement);
- examining the application and the environmental impact statement;
- holding a public consultation period (six weeks);
- preparing the environmental impact expertise;
- holding a public consultation on the environmental impact expertise (four weeks);
- hearing the parties; and
- the authority making a final decision.
The environmental impact statement is drafted by the applicant and contains a detailed description of the project comprising information on the site, design and size of the project (for example, physical characteristics of the project, main characteristics of the production and processing procedures, data of residues and emissions to be expected, estimated increase in the concentration of pollutants). The environmental impact report is drafted by the authority in charge under consideration of the environmental impact statement and the results of the expert examinations. The parties involved in an environmental assessment process are mainly the project applicant, the ombudsman for the environment, the water management planning body, neighbours, the host municipality, citizens' groups and NGOs (environmental organisations).
20 Regulatory authorities Which authorities are responsible for the environment and what is the scope of each regulator's authority?
As mentioned in question 1, the Austrian Constitution allocates the execution of environmental laws and regulations to the federal state or the provinces. In general, the state governors and the district authorities are competent for executing environmental law at the federal level. However, with regard to specific environmental issues, the Ministry for Agriculture, Forestry, Environment and Water Management is the competent environmental authority. At the provincial level, the governments of the provinces and the district authorities are responsible for administering environmental law.
Furthermore, two special environmental agencies have to be mentioned: the Federal Environment Agency and the independent panels of environmental review. While the Federal Environment Agency deals with monitoring and documenting the Austrian environmental situation, the independent environmental panels hear appeals for EIA projects.
Environmental subsidies are granted by different authorities and commissions (for example, pursuant to the Environmental Subsidies Act).
What are the typical steps in an investigation?
Once the competent authority becomes aware of an infringement of environmental regulations it may start an investigation ex officio. However, an investigation may also be triggered by a suggestion from any person indicating an infringement of environmental regulations. The authority may take all necessary steps to investigate the given situation. If the suspicion of infringement can be substantiated, the competent authority generally has to hear the potential violator. There is no formal procedure with typical steps of investigation.
22 Powers of regulatory authorities
What powers of investigation do the regulatory authorities have?
The regulatory authorities' powers of investigation are provided in the respective environmental regulations. In general, the authorities may claim information. Furthermore, most regulations entitle the authorities to access and inspect sites and to review the relevant documentation on environmental issues. If there is a refusal, the authorities can enforce their powers by imposing administrative penalties or conducting substitutive measures. In addition, the authority may close down installations and plants that are not operated in compliance with their corresponding permits or are operated without the authorities' authorisation.
23 Administrative decisions
What is the procedure for making administrative decisions?
In general, the authorities are required to carry out administrative procedures appropriately and efficiently. Prior to its decision, an authority must gather all necessary information and facts and hear the parties involved. Thus, most authorisation procedures require a mandatory public hearing. Persons legally affected by an authority's decision have the right to appeal.
24 Sanctions and remedies
What are the sanctions and remedies that may be imposed by the regulator for violations?
The authorities are entitled to impose a great variety of sanctions on violators. The authorities may impose administrative penalties or conduct substitutive measures. Furthermore, the authorities may close down installations and plants that are not operated in compliance with their corresponding permits or are operated without the authorities' authorisation. As a general rule, all sanctions and remedies have to comply with the 'proportionality principle'.
If a corporation (legal person) infringes environmental regulations, the managing directors are generally to be held liable. However, corporations may also appoint a responsible person who has accepted liability in writing.
25 Appeal of regulators' decisions
To what extent may decisions of the regulators be appealed, and to whom?
Parties involved are generally entitled to appeal against decisions of the competent authority at first instance. The appellant must submit his or her appeal to the authority that is responsible for the decision in question. The authority may reconsider its decision. If it does not alter the original decision, it must forward it to the competent authority at second instance. Particularly for administrative penalties and authorisation decisions, the competent authorities at second instance are generally the independent panels of administrative review. As there are usually two administrative instances, the competent authority at second instance renders the final administrative decision. If the appeal does not succeed, the appellant may file an action to the Austrian Administrative Court.
Each appeal, as well as each action to the Administrative Court, has to clearly state reasons why the appealed decision is not in compliance with the corresponding regulations. The period for filing an appeal is generally two weeks. An action to the Austrian Administrative Court can be filed within six weeks of the decision of the authority of ultimate resort.
26 Judicial proceedings Are environmental law proceedings in court civil, criminal or both?
In Austria, environmental law is for the most part based on administrative law (see the questions above). Consequently the administrative authorities are competent for the administration of environmental laws, so enforcement and administration of environmental law follow administrative proceedings rules.
However, environment-related claims between private parties are subject to civil court proceedings, whereas the criminal courts are responsible for environmental crimes. Particularly, intentionally or negligently endangering the environment may trigger criminal liability and a proceeding in a criminal court as well. Pursuant to sections 180 to 183(b) of the Criminal Act, the intentional damage of the environment (by water, air or soil pollution, noise nuisance, environmentally dangerous disposal of waste and environmentally dangerous operation of a facility) is a punishable criminal offence.
Complying with administrative law excludes any criminal liability. Hence, a precondition of criminal liability is the infringement of administrative law.
According to the Act on Corporate Liability, BGBl I 2007/112, which entered into force on 1 January 2006, companies and organisations are criminally liable for an employee's or a decisionmaker's criminal act that has been committed in favour of the company or by neglecting duties of the company. Duties of the company may differ according to the business operating area of the company. Prior to the Act on Corporate Liability, criminal liability was limited to individuals, such as executives, board members or employees.
27 Powers of courts
What are the powers of courts in relation to infringements and breaches of environmental law?
Depending on the particular criminal offence and the blameworthiness, the criminal court may impose a term of imprisonment of up to three years or a fine of up to 360 daily rates.
28 Civil claims
Are civil (contractual and non-contractual) claims allowed regarding breaches and infringements of environmental law?
In general, the Austrian Civil Code provides for strict private liability as to impacts from neighbouring properties. Thus, a property owner can solely seek injunctive relief against a neighbour if the impact from the neighbouring property exceeds that which is customary for the locality and the customary use of the owner's property is substantially impaired. However, if the impact is caused by a mining operation or by an administratively authorised plant that exceeds its permissible emissions, the property owner cannot seek injunctive relief, but has a right to claim damages. Plants that are subject to a summary permitting procedure do not benefit from the aforementioned exemption. A neighbouring property owner may obtain a stop of operations by injunctive proceedings under certain conditions.
Tort law allows civil claims for environmental damage resulting from intentional or negligent infringement of environmental protection provisions under public law. However, these claims are only rewarding if the particular provision aims at protecting individual goods.
In principle, contamination-related issues are regulated by public law and not by civil law. For this reason, most cases of contamination are dealt with in administrative procedures.
Other administrative provisions contain strict private liability, for example, liability for damage caused by radioactivity pursuant to the Act on Nuclear Liability.
29 Defences and indemnities
What defences or indemnities are available?
There is no specific defence or indemnity in Austrian environmental law. However, if the authority imposes an order to remediate soil, water or groundwater contamination, the party concerned may challenge the authority's decision.
The Water Act and the Federal Waste Management Act provide for strict liability. The polluter is primarily liable for soil and water contamination (including groundwater).
Contamination can also be caused by several polluters. In this case, all polluters are jointly and severally liable. The authority has the option to single out one of the polluters to conduct the remediation measures, irrespective of his or her share of the environmental damage. The polluter concerned cannot object by arguing that the contamination was also caused by other polluters.
Nevertheless, the polluter concerned may seek compensation from the other polluters under civil law. According to Austrian civil law, each polluter is only liable for his or her share of the caused pollution.
If no polluter can be forced to conduct the remediation measures, the competent authority may impose a remediation order to the current property owner. However, the property owner's liability is only secondary if he or she is not the polluter. Furthermore, a property owner may only be held liable if he or she has concurred with the environmentally damaging measure, or he or she tolerated it by neglecting any reasonable defence. If a property owner has acquired the property after the contamination was concluded, he or she is only liable when he or she was or should have been aware of the contamination.
Claims for damages under civil law are subject to a limitation period of three years beginning with the knowledge of the damage and the polluter.
30 Directors' or officers' defences
Are there specific defences in the case of directors' or officers' liability?
In Austria there are no specific regulations concerning defences for directors or officers. In general, the company (and not its representatives) is liable for damages caused by the company. However, the directors may be fined in the event of unlawful plant operation. Environmental damages caused by gross negligence might result in criminal proceedings against the directors or responsible officers.
31 Appeal process
What is the appeal process from trials?
Decisions of courts of the first instance may be appealed to the competent higher courts. In the second instance the court decides legal questions, but factual questions are only dealt with in rare cases.
International treaties and institutions
32 International treaties
Is your country a contracting state to any international environmental treaties, or similar agreements?
Austria is party to a considerable number of bilateral and multilateral agreements and treaties regarding cooperation on environmental matters with its neighbours and several other countries. For example, Austria has concluded water-management agreements with the Czech Republic, Hungary, Slovakia and Slovenia. Moreover, Austria has signed the Convention on the Protection of the Alps. This Convention sets up a framework for international cooperation between Alpine countries and the EU. Austria is also a contracting party to the Washington Convention on International Trade in Endangered Species, the Ramsar Convention on Wetlands of International Importance, the Washington Convention on the Protection of the World Cultural and Natural Heritage, the Berne Convention on Conservation of European Wildlife and Natural Habitats and the Biological Diversity Convention.
Update and trends
For the time being there are no new emerging trends or real hot topics in environmental law in Austria. The federal government announced the presentation of a proposal for a new Law on the clean-up of contaminated sites. Apart from that, discussions are ongoing on stronger rights for neighbours and NGOs in administrative procedures regarding environmental law. However, EU legislation has a significant impact on the national environmental legislation: in late 2012 the European Commission envisages presenting a proposal for a seventh environmental action programme. That policy plan (not a legally binding document itself) shall define the overarching framework for environmental policy and legislation in the EU and therefore set out strategic orientations for the short to medium term and a longer term vision beyond that horizon.
Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through –Environment, (published in November, 2012; contributing editor: Carlos de Miguel of Uría Menéndez. For further information please visit http://www.gettingthedealthrough.com/.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.