Environmental Law 2023 Comparisons

The Austrian environmental protection regime is one of the strictest in the world. As an EU member state, Austria is obliged to implement and put into effect the (already strict) EU environmental law. However, Austria’s national policies and laws often provide for even more rigorous rules on topics such as permitting requirements, thresholds, rights of third parties and liabilities.

According to the Federal Constitutional Law on Sustainability, Animal Welfare, Environmental Protection, Securing Water and Food Security and Research (Bundesverfassungsgesetz über die Nachhaltigkeit, den Tierschutz, den umfassenden Umweltschutz, die Sicherstellung der Wasser- und Lebensmittelversorgung und die Forschung), fundamental principles of environmental law include the preservation of the natural environment (ie, water, air and soil) as the basis of life for future generations. Other fundamental principles of Austrian environmental law include the precautionary principle, the “polluter pays” principle, and the principles of amelioration and no deterioration of elements of the environment.

From a systematic perspective, Austrian environmental policy and law are characterised by the distribution of competencies between the federation and the nine provinces. Thus, some policies are decided upon at the federal level and others at the provincial level. The distribution of competencies is one of the main reasons why all efforts to codify environmental law have – thus far – been in vain. Therefore, Austrian environmental law remains scattered across numerous federal and provincial legal acts. Key laws include those set out here.

Federal Acts

The following apply at the federal level:

• Environmental Impact Assessment Act 2000 (Umweltverträglichkeitsprüfungsgesetz, or UVP-G);
• Waste Management Act 2002 (Abfallwirtschaftsgesetz, or AWG);
• Water Rights Act 1959 (Wasserrechtsgesetz, or WRG);
• Trade Act 1994 (Gewerbeordnung, or GewO);
• Air Pollution Control Act 1997 (Immissionsschutzgesetz-Luft, or IG-L);
• Mineral Raw Material Act 1999 (Mineralrohstoffgesetz, or MinRoG);
• Framework legislation – Electricity Management and Organisation Act 2010 (Elektrizitätswirtschafts- und -organisationsgesetz, or ElWOG); and
• Aviation Act 1957 (Luftfahrtgesetz, or LFG).

Provincial Laws

The following apply at the provincial level:

• Nature Conservation Act (Naturschutzgesetze, or NSchG);
• Construction Act (Baugesetze und -ordnungen, or BauO);
• Land Use and Zoning Act (Raumordnungsgesetze und -ordnungen, or RO); and
• Implementing legislation – Electricity Management and Organisation Acts from the provinces (Elektrizitätswirtschafts- und -organisationsgesetze der Bundesländer, or ElWOG der Bundesländer).

In Austria, owing to the complex distribution of competencies between the federal government and the provinces already mentioned in 1.1 Environmental Protection Policies, Principles and Laws, responsibility for environment-related enforcement is very fragmented. In addition, some authorities – such as the district administrative authority (Bezirksverwaltungsbehörde) – act for both the federal and the provincial governments. Furthermore, the provincial governors (Landeshauptleute) often act for the competent federal minister. Only an approximate overview of the responsibilities can therefore be given at this point.

Federal Level

At the federal level, competence is divided between the different ministries. The most important environment-related ministries are:

• the Federal Ministry for Climate Protection, Environment, Energy Mobility, Innovation and Technology (Bundesministerium für Klimaschutz, Umwelt, Energie, Mobilität, Innovation und Technologie, or BMK);
• the Federal Ministry of Agriculture, Forestry, Regions and Water Management (Bundesministerium für Land- und Forstwirtschaft, Regionen und Wasserwirtschaft, or BML); and
• the Federal Ministry of Labour and Economy (Bundesministerium für Arbeit und Wirtschaft, or BMAW).

Most environmental matters – such as water, waste, forestry, mineral raw materials, aviation, chemistry and trade law – are assigned to the federal government.

Provincial Level

At the provincial level the provincial governments (Landesregierungen) are the highest authorities. The provinces enforce environmental matters such as spatial planning, environmental impact assessments and nature conservation. For certain matters – for example, in the field of nature conservation – the competent authority is the district administrative authority. In addition, local municipalities are often competent to enforce certain aspects of planning law (eg, land use and zoning plans), as well as construction law.

Given the complex distribution of competencies, the competent authority has to be identified for each relevant matter.

To facilitate a simplified or accelerated implementation of administrative procedures in Austria, some laws provide for co-ordination mechanisms. One example is “one-stop shop” procedures, which are foreseen, for example, in the Environmental Impact Assessment Act, Waste Management Act or the Trade Act.

Activities potentially affecting the public interest or third-party rights in Austria usually require more than one environmental permit (and usually from more than one competent authority). Based on the “one-stop shop” principle, a single permit from only one competent authority is foreseen for large-scale projects under the Environmental Impact Assessment Act. If the law does not provide for the co-application of the other permitting requirements, the competent authorities are usually required to co-ordinate with the other authorities.

To protect environmental assets, the respective Austrian environmental laws in combination with EU environmental law contain different permitting regimes, inspection regulations, participation rights for third parties (eg, NGOs, neighbours, citizen initiatives, etc) and various other protective provisions (eg, designation of special protected areas, enforcement measures, restoration orders, penalties for infringements or implementation of measurement programmes, etc).

In Austria, environmental incidents and breaches of law (including breach of permits) can have consequences under criminal, administrative criminal, administrative, and civil law. The regulatory authorities are only competent for the execution of administrative criminal and administrative law. The prosecution of severe incidents or breaches of environmental law is regulated in the Criminal Code (Strafgesetzbuch, or StGB) and lies within the competence of the Public Prosecutor’s Office (Staatsanwaltschaft). Private damages from environmental incidents and breaches of environmental law must – in principle – be claimed by the damaged party; therefore, investigations relating to private damages lie within the responsibility of the civil courts.

The investigative and access powers of regulatory authorities are scattered over a wide range of federal and provincial Acts, depending on the nature of the incident or the breach of environmental law in question. They range from access to private property, the collection of samples, interrogations, and orders (eg, on the operation of machines/plants and the implementation of mitigation measures), to the arrest of those suspected of having committed acts punishable under (administrative) criminal law.

The execution of investigative and access powers is limited by the principle of proportionality, requiring that the specific use of a power is proportional to its specific scope and that no milder measures are available. Thus, before severe means ‒ such as shutdowns or arrests – are implemented, the authorities will usually investigate via the collection of samples or interrogations (eg, the discussion of voluntary mitigation measures). Finally, all acts to access and investigate by administrative powers are contestable, although not all remedies have suspensory effect.

Investigative and Access Powers of Public Prosecution

Severe environmental incidents or breaches of environmental law can lead to investigations by the Public Prosecutor’s Office. Depending on the severity and the specific case, the Public Prosecutor’s Office might use the full range of investigative and access powers foreseen in the Criminal Procedure Code (Strafprozessordnung, or StPO).

The regulatory authorities are tasked not only with the investigation but also the mitigation of environmental damages; therefore, the investigative and access powers of the Public Prosecutor’s Office with regard to environmental incidents and breaches of environmental law differ slightly from the regulatory authorities’ powers. The Public Prosecutor’s Office, for example, wields the power to:

• access and even seize private property (eg, machines or even factories, but also documents and digital data);
• interrogate suspects and witnesses;
• arrest suspects; and
• impose detention awaiting trial (pending authorisation by a court).

However, the Public Prosecutor’s Office cannot issue orders for mitigation measures.

The principle of proportionality also applies to the Public Prosecutor’s Office’s use of these powers.

Investigative and Access Powers of the Civil Courts

The Austrian civil courts have far less investigative and access power than regulatory authorities and the Public Prosecutor’s Office. Although specific procedures allow for injunctions and the preservation of evidence, the taking of evidence regularly requires deliberate co-operation from the parties. However, the courts expressly can (and will) take a plausible denial of co-operation in investigations into consideration when deciding the respective case.

As a general principle, environmental permits are required under Austrian law if the “public interest” or third-party rights (eg, landowners’ or fishing rights) may be affected by the envisaged activity. The permitting procedures vary immensely and can range from simple notification obligations to thorough environmental impact assessments lasting up to several years.

Due to the constitutional division of competencies, all efforts for a comprehensive environmental permit have so far been in vain. A single permit from only one competent authority (“one-stop shop”) is only foreseen for very large projects under the Environmental Impact Assessment Act. Thus, activities potentially affecting the public interest or third-party rights in Austria usually require more than one environmental permit (and usually from more than one competent authority). The construction and operation of a single industrial plant can require multiple environmental permits (eg, under the Trade Act, Water Act, Nature Conversation Act and Construction Act, and the Federal Forest Act 1975 (Forstgesetz)).

The question of which permits a certain activity requires can therefore only be answered on a case-by-case basis. Although the Austrian legal framework on environmental permits might seem complex at first sight, diligent preparation enables an efficient permitting process even when in conjunction with several authorities.

Procedure

The individual permitting procedures are generally initiated via an application to the competent authority by the person envisaging the specific activity with potential effects on the “public interest” or third-party rights. The applicant sets out the scope of the activity and therefore also for the permitting procedure. Thus, the application must comprise all necessary documentation for the envisaged activity.

The authorities usually examine the documentation with the help of their own authoritative or non-authoritative experts (ie, experts paid by the applicant but working for – and in the name of ‒ the authority). If the legal requirements for obtaining the permit are met, the applicant has a legal right to the issuance of the permit.

If an environmental permit is denied, the regulatory authorities՚ decision can be appealed before the administrative courts (and, in some cases, before another regulatory authority). The administrative court՚s decisions can be appealed before the Constitutional Court (Verfassungsgerichtshof, or VfGH) and the High Administrative Court (Verwaltungsgerichtshof, or VwGH).

A recurring topic in permitting procedures under almost all relevant acts of environmental law is the question of parties and their procedural rights. In short, under Austrian law a legal interest is required in order to have a right to be heard and to appeal against decisions in administrative procedures. International and European law, on the other hand, provide for additional rights to be heard and to appeal decisions on environmental permits.

As already stated in 1.1 Environmental Protection Policies, Principles and Laws, the Austrian environmental protection regime is one of the strictest in the world. Austria’s national policies and laws often provide for even more rigorous rules than are provided for at EU level, for example, regarding permitting requirements, thresholds, rights of third parties and liabilities.

To determine future options for action for environmental policy, the Federal Environment Agency in Austria produces an environmental monitoring report every three years describing the current environmental situation in Austria. The topics covered include climate protection as well as air pollution control, mobility and energy transition, water protection and biodiversity, as well as sustainable management and the management of resources and chemicals. The facts and figures refer to environmental policy measures that have already been taken and provide an outlook on future options for action in environmental policy.

In the coming years, Austrian regulators are particularly determined to significantly reduce CO₂ emissions and energy consumption, to protect biodiversity and to curb the rate of land consumption.

Most permitting regimes in Austria stipulate that the permit is issued for the plant or the project; the permit is thus reified. This “in rem effect” means that the rights and obligations established by the permit relate to the plant (due to their project-related nature) and not to a person. Thus, permits are not affected by a change of ownership and can easily be transferred.

In some legal acts (eg, the Water Rights Act or Trade Act), however, personal authorisations are also foreseen. Such permits are not transferable, or only to a very limited extent. The transferability of permits must therefore be checked separately for each transaction and permit.

For the different types of liability (which also cover breaches of permits/approvals) see 5.1 Key Types of Liability. In addition to fines and liability penalties, measures to restore legal status or compensation for damages may also be imposed. The violation of environmental permits can also lead to the withdrawal of the respective permits in connection with the plant (eg, withdrawal of a trade licence).

Breaches of environmental law (encompassing all kinds of environmental damage as well as environmental incidents) can lead to various liabilities of offenders under criminal, administrative, administrative criminal and civil law in Austria.

Liabilities Under Administrative Law and Administrative Criminal Law

In practice, breaches of environmental law in Austria usually lead to measures under administrative law and fines under administrative criminal law. Various (environmental) administrative acts grant regulatory authorities the power to investigate breaches of environmental law (see 4.1 Investigative and Access Powers) and to take all necessary steps to prevent, mitigate and remediate environmental damage. To this end, regulatory authorities may either order offenders to take the necessary steps or organise the requisite measures themselves. In the latter case, the offender (if identifiable) must bear all the costs of the necessary measures.

Under administrative criminal law, regulatory authorities routinely impose fines on offenders. Alternatively, if a fine cannot be paid, regulatory authorities might even order imprisonment for several weeks. It should be noted that administrative fines can, under certain circumstances, accumulate in Austria. Therefore, a single environmental incident or damage can lead to a multitude of administrative fines – in some cases reaching six-figure (or even higher) sums. According to the Constitutional Court, there might be an upper limit for administrative fines; however, this limit is well over EUR1 million.

Additionally, administrative fines are primarily to be imposed on individuals. Legal entities usually only bear subsidiary liability if a responsible representative is incapable of paying a fine (see 7. Corporate Liability).

Liabilities Under Criminal Law

Under criminal law, both natural and legal persons (see 7. Corporate Liability) responsible for offences against the environment can face serious fines. Individuals responsible for severe environmental damages face not only criminal fines under the Austrian Criminal Code but even prison sentences of up to several years.

Liabilities Under Civil Law

Since the relevant environmental acts also protect third-party rights, operators or polluters can also face liabilities under civil law. It should be noted that several environmental acts foresee liabilities without fault. Thus, plant operators or polluters often bear civil liabilities even in cases where no administrative, administrative criminal or criminal measures can take effect.

Public Environmental Information

Under Austrian law, public authorities and public institutions must grant everyone access to information on the environment. In addition, Austrian environmental information law goes beyond mere free access to environmental information by obliging public authorities to:

• obtain information using their own initiative; and
• make it available to the public.

Informative environmental information is understood to be, among other things:

• data on the state of the environment (eg, water, air, soil and the landscape);
• environmental factors (eg, substances, energy, noise and radiation);
• measures (eg, plans and programmes, and administrative acts); and
• cost-benefit analyses and other economic analyses.

However, the right of access is granted only in relation to environmental information and does not cover the right to inspect specific documents or entire procedural acts.

Information must be provided by:

• administrative authorities;
• organs of regional and local authorities;
• legal persons under public law; and
• natural and legal persons under private law who perform public tasks or provide public service listings under one of the above-mentioned bodies (eg, energy supply companies).

The environmental information right has the character of an actio popularis because everyone is granted a right of free access to environmental data.

Limitations on Disclosure

Disclosure may be refused if:

• the request for information relates to an internal communication;
• the request was apparently delivered in an abusive manner;
• the request is too general; and/or
• the request concerns material in the process of being completed, unfinished documents, or similar.

Prior to refusal, the arguments for and against disclosure must be weighed up by the competent authorities.

Compulsory Disclosure

Environmental information that must be actively disseminated in all cases includes:

• the wording of international treaties;
• policies, plans and programmes relating to the environment;
• environmental status reports;
• authorisations with an environmental impact; and
• environmental impact assessments.

The co-ordination task is assigned to the Federal Environment Agency (Umweltbundesamt).

As a general principle, the liability for environmental damages can only be imposed on the person(s) responsible for the damage. This principle applies to administrative criminal and criminal law, in particular. Liability for criminal offences committed by a person other than the current operator or landowner is only possible if the current operator knows of the environmental damage and maintains the unlawful situation.

However, several administrative acts foresee the subsidiary liability of current or purchasing operators of facilities, or landowners.

Under the Austrian federal and provincial Environmental Liability Acts (Umwelthaftungsgesetze), current operators are obliged to notify the competent authority of – and to take all necessary measures to prevent, mitigate and remediate – environmental damages, even those resulting from historical activities. Landowners face those obligations only if:

• the operation (eg, of a facility) was terminated; and
• they knew of and accepted the operation.

Furthermore, these operators or landowners usually have an obligation to bear all costs relating to the prevention, mitigation and remediation of (historical) environmental damages if they cannot prove that the environmental damage results from activities of third parties (other than their legal predecessors) or from authoritative orders. Similar provisions exist, for example, in the Water Rights Act and Waste Management Act.

Possibility of Action Against the Original Polluter

If the cost for preventing, mitigating and remediating historical environmental damages was enforced against a person with subsidiary responsibility under administrative law, the Austrian civil law grants the payer actions against the polluter. Such claims are obviously only useful if the original polluter can still be held responsible.

Self-Reporting Requirements

Reporting requirements foreseen in the Seveso Directive and the IPPC Directive have been implemented in Austria in various laws and ordinances, including the Trade Act and the Industrial Accidents Ordinance (Industrieunfallverordnung), the Waste Management Act, the Mineral Raw Material Act and the Emission Control Act 2010 (Emissionsschutzgesetz für Kesselanlagen).

These obligations are accompanied by purely national reporting requirements throughout the relevant environmental laws. Since the reporting requirements vary greatly by plant type, an assessment must be made on a case-by-case basis. Regulations on public environmental information are uniformly regulated in the Environmental Information Acts (one federal, nine provincial) and in the Major Accidents Information Ordinance. Reference should also be made to the Helsinki Convention as the international legal basis of industrial accident law.

Notification Obligations

Following a major accident, the operator is obliged to notify the authority – immediately (ie, without culpable delay and prior to detailed investigations) and in the most appropriate manner – of the following:

• the circumstances of the accident;
• the substances involved;
• the available data for assessing the accident՚s consequences for human health, the environment and material assets;
• immediate measures taken; and
• planned steps to mitigate the medium-term and long-term consequences of the accident and to prevent them in the future.

In any case, the industrial accidents that must be notified are:

• those involving ignition, explosion or release of a certain quantity of dangerous substances;
• those in which the operator has reason to believe that the outcome has caused property damage or significant consequences for health and the environment; and
• incidents involving dangerous substances that may –
1. result in death or hospitalisation; or
2. cause damage to property of at least EUR2 million.

Failure to comply with the obligation to notify is punishable by law.

Owners of establishments that pose a risk must inform each other about potential domino effects in industrial accidents and exchange information. Furthermore, they must inform persons potentially affected by industrial accidents at regular intervals about the dangers of major accidents and about the necessary behavioural measures to be taken in the event of a major accident ‒ and make this information available on the internet.

For the types of liability for environmental incidents or damages in Austria, see 5.1 Key Types of Liability. Owing to the multitude of possible liabilities and the different prerequisites for the attribution of liabilities, potential defences against liabilities (and their prospects of success) can only be determined on a case-by-case basis. In general, liability for environmental damages under all legal regimes (criminal, administrative criminal, administrative and civil law) can be avoided if the defendant can prove that:

• there is no damage (eg, if the “damage” turns out to be a natural process or is based on flawed investigations/samples); or
• the damage is attributable to others (including authorities).

Other arguments can include (but are not limited to):

• limitations of time;
• lack of sufficient evidence;
• lack of jurisdiction;
• lack of causality;
• lack of negligence; and
• lack of proportionality.

The effectiveness of defences depends on the specific case. A lack of negligence will not be sufficient to avoid liability without fault (eg, under certain provisions of civil law) and a limitation of time will not be sufficient to avoid liability if no limitation of time is foreseen (eg, under certain provisions of administrative law). Defences against liability can be found in most cases of environmental damages. Whether liability can be fully avoided – or only be reduced or postponed – depends on the individual case.

As mentioned in 5.1 Key Types of Liability, environmental damages and breaches of environmental law can lead to a variety of liabilities under Austrian law. Corporations (and other legal entities) can be held accountable only if a provision expressly stipulates such liabilities.

Criminal Law

Under the Statute on Responsibility of Legal Entities (Verbandsverantwortlichkeitsgesetz, or VbVG), legal entities can be held liable in two circumstances.

In the first case, a legal entity may be liable if a “decision-maker” (Entscheidungsträger) of said entity culpably (ie, intentionally or negligently) and illicitly commits a crime punishable under the Criminal Code:

• in their role as decision-maker;
• for the benefit of the entity; and
• in breach of the entity’s legal obligations.

The second scenario is employee crimes, for which legal entities can only be held liable if an employee of the entity culpably (ie, intentionally or negligently) and illicitly commits a crime punishable under the Criminal Code:

• for the benefit of the entity; and
• that was enabled or substantially facilitated by decision-makers’ disregard for the necessary diligence – in particular, a lack of technical, organisational or personal measures to prevent such offences.

If the prerequisites are met, legal entities can be fined up to 50% of their annual yield (up to a maximum of EUR1.8 million). The criminal liability of legal entities does not exclude the criminal liability of their decision-makers or employees for the same offence.

Administrative Criminal Law

As already mentioned in 5.1 Key Types of Liability, administrative fines in Austria are primarily imposed on individuals. Legal entities only bear subsidiary liability if a responsible representative is incapable of paying a fine.

Administrative and Civil Law

Corporations and other entities, as well as individuals, can be liable under administrative and civil law. If environmental damage can be attributed to a legal entity, then notification, prevention, mitigation and remediation obligations must be fulfilled by the legal entity under administrative law. If third parties’ rights are affected by environmental damage, entities could also be liable under civil law.

In Austria, various taxes and fees can be classed as environment-related. However, these taxes are very specific and there is not a holistic approach to environmental taxation. With the pricing of CO₂ emissions, climate protection was anchored in the Austrian tax system in 2021. Currently, a fixed amount of EUR32.50 is levied in taxes for the emission of one tonne of CO₂. This price will gradually increase until 2025 and will eventually lead to emissions trading in 2026.

The taxes and fees can be divided as follows.

Energy

• mineral oil tax;
• energy taxes (coal, gas, electricity); and
• emission certificates.

Transportation

• engine-related insurance tax;
• standard consumption tax;
• car registration tax;
• car tax;
• flight tax; and
• road user tax.

Environmental Pollution

• contaminated site remediation contribution; and
• CO₂ tax.

Resources

• property tax B;
• hunting and fishing fees; and
• landscape and nature conservation levy.

As explained in 5.1 Key Types of Liability, violations of environmental regulations lead to legal consequences such as penalties, or measures including the withdrawal of authorisations. Compliance with environmental regulations therefore not only prevents damage to the environment and its protected assets, but also protects against penalties.

The second comprehensive mechanism to steer environmental citizenship is economic instruments such as subsidies, taxes and also regulations on the access to certain funds. Examples of such subsidies in Austria that aim to protect or improve the environment or contribute to the energy transition are subsidies for PV systems on single-family houses, for electric vehicles, for ecological measures or environmentally friendly building renovations. Examples of environmental taxes are listed in 7.2 Environmental Taxes. Such measures are, of course, intended to encourage people and companies in Austria to act in a sustainable and environmentally friendly manner.

Under Austrian criminal and administrative criminal law, parent companies cannot be held accountable for environmental damages or breaches of environmental law caused by their subsidiaries ‒ even in the event of the subsidiary’s insolvency. Shareholders can be held liable under criminal and administrative criminal law only for their own crimes and if their roles exceed simple (part) ownership (eg, where a shareholder takes part in the management of, or is employed by, a company).

The liability of shareholders or parent companies under administrative law is only possible in very specific cases. As a rule, only subsidiaries are responsible for environmental damage or breaches of environmental law under administrative law. Therefore, regulatory authorities will usually order the subsidiary to take the required measures to prevent, mitigate or remediate environmental damage, or bear the cost of such measures. Examples of liability of parent companies or shareholders include, but are not limited to:

• liability for historical environmental damages – for example, if the affected assets of the subsidiary are transferred to shareholders or parent companies (see 6.1 Liability for Historical Environmental Incidents or Damage); or
• direct involvement in environmental incidents.

Austrian civil law primarily stipulates the liability of the damaging party. The possible liability of parent companies or shareholders depends, above all, on the character of the company primarily responsible for the environmental damage. On one hand, shareholders and parent companies of partnerships (Personengesellschaften) bear liability for all obligations of the company exceeding its funds. Therefore, civil claims based on environmental damages against partnerships regularly entail the liability of their shareholders.

The liability of shareholders and parent companies of corporations (Kapitalgesellschaften), on the other hand, is limited to very specific (and usually highly theoretical) cases, such as directors’ liability – if a shareholder is appointed as a managing director – or blatant under-capitalisation.

The new Corporate Sustainability Reporting Directive (CSRD) has reformed and replaced the previous Non-Financial Reporting Directive (NFRD). It introduces more detailed reporting obligations, which are specified by standardised European reporting standards. In future, companies must report on their material sustainability in the sense of “double materiality”. This means that they must report both on how sustainability aspects affect their business results, position and performance (“outside-in perspective”) and on the impact of these aspects on people and the environment (“inside-out perspective”).

Affected companies are those that fulfil two of the following three criteria:

• more than 250 employees;
• a balance sheet total of more than EUR20 million; and
• a turnover of more than EUR40 million.

The directive also applies to all capital market-oriented companies with the exception of micro-enterprises. The CSRD came into force on 5 January 2023 and must be transposed into national law in Austria within 18 months. It has not yet been implemented in Austria.

The Sustainability and Diversity Improvement Act implements the currently applicable EU NFRD at national level and obliges defined large companies to provide non-financial reporting.

Austrian companies may voluntarily undergo environmental audits, such as those based on the Ordinance on the Voluntary Participation of Organisations in a Community Eco-Management and Audit Scheme (the “EMAS Ordinance”). The corresponding regulations have been implemented in Austria in the Environmental Management Act (Umweltmanagementgesetz).

Environmental audits must not, however, be confused with regular and irregular site inspections. Such regular and irregular site inspections are foreseen for every industrial site, ranging from bakeries to airports, and from wood mills to chemical plants, etc.

Under the Austrian Administrative Criminal Act (Verwaltungsstrafgesetz), the directors and other officers that represent a company are the primary persons responsible for compliance with all the relevant provisions of the Austrian administrative law. However, a company can inform the relevant authority of the names of the persons responsible for certain matters. If the announcement to the authority is lawful, only the responsible person is liable to the authority for the matter in question (eg, compliance with waste regulations or compliance with all administrative provisions at a certain site). Given that possible penalties include fines ranging from a few hundred euros to six-figure (or even higher) sums, responsible persons must agree to their appointment.

Liabilities under criminal and civil law usually require culpable conduct. On one hand, the liability of directors and other officers under criminal and civil law is thus limited to their own actions. On the other hand, however, this liability cannot be delegated (unlike responsibility under administrative criminal law).

Since corporations and individuals are equal under administrative law (see 7. Corporate Liability), directors and other officers are only liable under administrative law if fault may be attributed directly to them (and not the corporation).

Directors’ and officers’ (D&O) insurance policies are common in the Austrian insurance market. However, certain insurers will exclude certain liabilities/penalties based on the terms of the insurance and the nature of the misconduct. Therefore, certain liabilities/penalties (eg, for damages caused intentionally or by gross negligence) could ultimately turn out not to be insurable.

A wide range of environmental insurance is offered in the Austrian insurance market. The most common policies cover incidental environmental damages and related liabilities under civil and administrative law (see 5.1 Key Types of Liability; for D&O policies, see 8.2 Insuring Against Liability). As usual, the specific risks covered depend on the terms of the policy. Typically included are:

• costs for remediation obligations;
• damage claims; and
• legal expenses.

Environmental damages resulting from intentional breaches of environmental law usually cannot be insured. Most policies cover only cases of (very) mild negligence. Environmental damages resulting from the operation of facilities, for example, may only be covered if all the obligations under environmental law – such as maintenance obligations ‒ and the necessary permits were observed.

Austrian law does not stipulate liability for environmental damage or breaches of environmental law solely on the basis of business relations with the offender. However, if the business relationship encompasses co-management rights or the transaction/ownership of assets, the financial institutions or lenders may be liable (see 6.1 Liability for Historical Environmental Incidents or Damage and 7. Corporate Liability).

Financial institutions or lenders can avoid liability risk by abstaining from (co-)management rights and the ownership of assets. If (co-)management rights and/or ownership of assets are transferred, (financial) environmental due diligence is common (see 18.1 Environmental Due Diligence).

The most important legal basis of civil liability for environmental damages is the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, or ABGB). However, specific liability provisions can also be found in other Acts – for example, in the Water Rights Act, the Forest Act, the Genetic Engineering Act 1994 (Gentechnikgesetz) and the Nuclear Liability Act 1999 (Atomhaftpflichtgesetz). Finally, certain contracts may stipulate some form of civil environmental liability (eg, contracts with protective effects in favour of third parties).

Essential Legal Bases for Civil Claims

Neighbourhood law

Neighbourhood law aims to achieve an appropriate balance between conflicting interests of use. Under neighbourhood law, the exercise of the property rights or (plant) operating rights must not lead to an unreasonable impairment of the rights and interests of others. The Austrian Civil Code thus provides for defences against impermissible emissions (ie, those that exceed emission thresholds), negative emissions (eg, deprivation of light or air) or certain emissions from licensed installations (ie, a form of compensation for permitted emissions).

General liability for fault

General liability for fault provides for a legal responsibility under civil law for the illegal and culpable violation of legal assets or rights of third parties.

Strict liability

According to the Austrian strict liability system, the injuring party is liable for damage resulting from a permitted hazard that they were able to control. Under this regime, civil claims are possible – for example, for certain damages from permitted water utilisation plants or nuclear facilities.

The concept of punitive damages does not exist in Austrian law. Neither exemplary damages nor punitive damages can be awarded. As far as is apparent, there is currently no need (and no relevant call from stakeholders) to introduce so-called punitive damages in Austria.

In Austria, class or group actions under civil law only occur in the form of an accumulation of actions, which is known as a “class action Austrian-style”, whereby the claims of many affected parties are transferred to a single plaintiff by means of assignments.

Under constitutional and administrative law, class or group actions ‒ such as the cases presented in 11.4 Landmark Cases ‒ are (strictly speaking) also individual actions that are aggregated by the courts owing to the similar facts.

In 2014, the improper combustion of blue lime contaminated with hexachlorobenzene (HCB) in a cement factory caused extensive contamination with highly toxic HCB. Cow’s milk had to be poured away, slaughtered cattle could not be sold, and even green fodder and vegetables in domestic gardens were rendered unusable. In addition to various initiated criminal proceedings, a total of 95 claims for damages were filed. These concerned the possibility of damage to health, as well as compensation for possible impairment of the affected properties. One of the defendants was the Republic of Austria. The total value of the claim was approximately EUR23 million. In the end, a settlement worth approximately EUR6 million was reached – although this does not cover long-term health damages. In the meantime, the area is once again HCB-free, and the operator had to secure the blue lime landfill.

Climate-Damaging Tax Provisions

A further case, which could have become a landmark, concerns the individual applications filed in February 2020 by more than 8,000 people (and by various environmental organisations such as Greenpeace) against specific climate-damaging provisions on tax breaks for kerosene and air travel. The court was asked to examine whether the climate-damaging provisions of the Value Added Tax Act and the Mineral Oil Tax Act violate basic and human rights by actively promoting climate-damaging behaviour. The case was rejected by the Constitutional Court. Despite the rejection, the motions clearly show the direction for future lawsuits.

Schedule for Backing Out of Using Fossil Fuels

In May 2021, an environmental NGO (together with several individuals) applied for an ordinance from the Federal Minister for Digitalisation and Business Location to govern the schedule for backing out of using fossil fuels. In August 2021, the Minister decided that the applicants had no right to such an ordinance. The appeal filed by the NGO against the decision was dismissed by the Vienna Administrative Court. Currently, further appeals to the Constitutional and High Administrative Court are pending.

Extension of Rights Under the Aarhus Convention

In connection with the Aarhus Convention, the Austrian High Administrative Court (Verwaltungsgerichtshof) – in line with the ECJ – extended rights for environmental organisations in environment-related procedures. In a nutshell, the complex legal situation can be described as follows.

In Austria, participation in an administrative procedure is a requirement for challenging administrative decisions, and acknowledged environmental organisations and, under certain conditions, other members of the public have participation rights in procedures where European environmental law could be affected. This has led to numerous adjustments in affected Austrian laws, such as the Water Rights Act, the Waste Management Act, the Air Pollution Control Act, the Forest Act and the Nature Conservation Act. Recent decisions by the High Administrative Court have also extended these rights retroactively.

In principle, the liability for incidental environmental damages and breaches of environmental law is borne by the person responsible for the incident or the breach (see 5.1 Key Types of Liability and 7.1 Liability for Environmental Damage or Breaches of Environmental Law). However, Austrian law provides for several options to transfer or apportion such liabilities.

The most prominent example is the appointment of responsible persons for certain matters (see 8.1 Directors and Other Officers). If a responsible person is lawfully appointed by the authority, this person alone is liable for breaches of administrative criminal law within their responsibilities. The responsibility under criminal, civil and administrative law cannot be transferred under this regime.

Civil liability can be transferred or apportioned by means of contracts if the transfer or apportion is not contra bonos mores. According to Austrian jurisprudence, liabilities for gross negligence are – in principle – not transferable. Also, the (ultimate) bearing of fines under criminal and administrative criminal law is contra bonos mores if the contract is signed before the event giving rise to liability.

Indemnities are common in Austria and in some cases explicitly mentioned in legal acts (eg, in the Water Rights Act for damages to fishing rights). Legal limits to indemnities include – but are not limited to – general immorality (Sittenwidrigkeit), disproportionality, and bribery (eg, in the case of payments to municipalities or persons holding public office).

In short, Austrian law allows for different options to transfer or apportion liabilities under civil and administrative criminal law. Liabilities under criminal and administrative law, however, usually cannot be transferred.

See 9.1 Environmental Insurance.

“Polluter Pays” Principle

Regulations concerning contaminated land can be found in numerous laws in Austria, particularly the Water Rights Act, the Waste Management Act, the Trade Act and the Act on the Remediation of Contaminated Sites (Altlastensanierungsgesetz, or ALSAG). Under all Acts, the “polluter pays” principle applies. Thus, the primary responsibility for remedying contamination lies with the polluter.

Subsidiary Liability

However, there are also several provisions for the subsidiary liability of the property owner. This subsidiary liability may arise if, for example, the person who is primarily obliged cannot be identified or is no longer legally able to carry out the remediation. This liability may also affect legal successors, in which case it does not matter how many owners lie between the historical owner and the current owner.

Legislative Provisions

The Water Rights Act is the most important basis for initiating remediation or safety measures. In line with the general concerns about keeping bodies of water (especially groundwater) clean, under the Water Rights Act permits are required where bodies of water might be impacted in a way that impairs their quality. In the absence of such permits, or if the source of danger is in itself sensitive, the water authority must issue a remediation order. Very similar provisions can be found in the Waste Management Act and the Environmental Liability Acts. Therefore, in many cases, remediation measures are prescribed on more than one legal basis.

ALSAG

The Act on the Remediation of Contaminated Sites aims to:

• identify contaminated sites that pose a significant risk to human health or the environment; and
• finance and implement appropriate remediation measures.

ALSAG lays down the framework for risk assessment procedures and the conditions for issuing remediation orders in the case of contaminated sites. In addition, a so-called contaminated site remediation contribution is levied for landfill deposit and incineration of waste.

In Austria, contaminated land is usually classified in one of the following three categories.

• “Contaminated sites” refers only to those areas that were contaminated before 1989 and are registered as contaminated sites in the register of contaminated sites. Since these old deposits and old sites pose a significant risk to human health or the environment, they must either be secured or remediated ‒ or be under observation following remediation.
• “Suspected contaminated sites” are those areas that have been reported by the provinces (Länder) to the federal government but are yet to be identified. They are listed in the register of suspected contaminated sites.
• “New damage” refers to contamination that occurred after 1989. Critical deposits and facilities are subject to strict environmental monitoring – the aim of which is to identify, prevent, reduce and remediate environmental problems promptly.

Regulations concerning contaminated land can be found in numerous laws in Austria, particularly the Water Rights Act, the Waste Management Act, the Trade Act and ALSAG. Under all those laws, the “polluter pays” principle applies. Thus, the primary responsibility for remedying contamination lies with the polluter.

Nevertheless, there are also several provisions for the subsidiary liability of the property owner (see 13.1 Key Laws Governing Contaminated Land).

If more than one party has contributed to a contamination, every party is – in principle – liable for their share. However, in relation to third parties (including authorities) this liability is a collective liability. An eventual injured party or the authority may thus demand compensation in full from any of the parties responsible for the contamination. If one of the responsible parties covers such demands, they may demand compensation from the other parties.

The prerequisites to bring proceedings against polluters/landowners/occupiers are generally very low. Depending on the type of proceedings (see 5.1 Key Types of Liability), some start as soon as a complaint is brought. For other proceedings, the locus standi may include ownership of (or another in rem right over) the contaminated land and the usual prerequisites for an action, such as a certain maturity, legal capacity, etc.

The Austrian regulations on waste management are based on the European Waste Framework Directive (2008/98/EGEC as amended). The key laws and regulations applicable to waste operators are listed in detail in 16.1 Key Laws and Regulatory Controls. As explained below, the key regulatory controls comprise not only the permitting of collection and treatment of waste activities, but also the construction and operation of waste treatment (and other waste-related) plants. Documentation requirements are generally vast and may force stakeholders to implement extensive record-keeping systems.

The consequences of breaching such obligations have already been mentioned in 5.1 Key Types of Liability.

The Austrian legal system provides for several ways of prosecuting and investigating damage to the environment.

For example, both the Federal Environmental Liability Act (B-UHG) and the environmental liability laws of the federal states allow affected persons and NGOs to file a complaint with the competent authority if environmental damage under the environmental liability law has been caused. If an environmental complaint is lodged, the competent authority must take appropriate measures to prevent future damage to the environment or to impose measures to minimise such damage.

Within the framework of supervisory law, persons also have the possibility to suggest measures by means of a supervisory complaint to the competent supervisory authority.

If a complaint is filed against a party responsible for environmental damage, the public prosecutor’s office may also intervene if a criminal offence under the criminal law has been committed.

Ultimately, decisions on the prosecution of environmental damage are within the responsibility of the courts with subject-matter and local jurisdiction.

Austria is a member of the Paris Convention on Climate Change (“the Convention”), as is the EU. Therefore, the Convention’s objectives ‒ such as keeping anthropogenic global warming under 2°C ‒ also apply to Austria. The EU climate and energy framework outlines EU-wide targets for 2030, including that:

• the share of renewable energy will be increased to at least 42.5% of (total) final energy consumption by 2030; and
• the member states are invited to work towards a non-binding target of 45% renewables in final energy consumption.

In the heating and cooling sector, three sub-targets are envisaged:

• The share of renewables in gross final national energy consumption will be increased by at least 0.8% per year in the 2021–2025 conversion period and by at least 1.1% per year in the 2026–2030 conversion period, compared to the share in 2020.
• Austria will “endeavour” to further increase the share of renewables in gross final national energy consumption by a (non-binding) target of 1.0% for the period 2021–2025 and 0.7% for the period 2026–2030.
• Also, the share of renewables and waste heat and cooling will be increased by 2.2% per year in the 2021–2030 period, compared to the share in 2020.

In the transport sector, the share of renewables will reach at least 29% of the final energy consumption or the greenhouse gas intensity of energy used in this sector will be reduced by at least 14.5%. In addition, the share of advanced biofuels and biogas in the energy supply of transport will be at least 1% by 2025 and at least 5.5% by 2030 (including at least 1% renewable fuels of non-biogenic origin).

In the industrial sector, the aim is an annual increase in the use of renewable energies of 1.6% (non-binding target). The share of renewable hydrogen and other renewable non-biological fuels on the other hand must increase to 42% of the total use of these substances by 2030. By 2035, this share must increase to 60% of non-biological fuels used in the industrial sector.

For the buildings sector, the share of renewable energy in heating and cooling buildings will rise to at least 49% in Europe by 2030.

By 2050, the emission and reduction of greenhouse gases in the EU must balance each other out (“climate neutrality”).

The main national laws concerning these methods are the Emission Certificate Act (Emissionszertifikategesetz, or EZG), the Climate Protection Act (Klimaschutzgesetz, or KSG) and the Federal Energy Efficiency Act (Bundes-Energieeffizienzgesetz, or EEffG).

The key principles of the Austrian climate strategy are:

• expansion of the share of renewable energy;
• increasing energy efficiency;
• pricing of CO₂ emissions;
• use of renewable hydrogen in the industry sector;
• transformation to a “bio-economy”;
• decarbonisation of the transport sector;
• thermal-energetic renovation of building stock as well as efficiency improvement of heating systems; and
• development of strategies for nutrition, consumption and tourism.

A federal tax reform was passed in 2021 that aims to realign the tax system to reflect greater environmental accuracy. From an environmental perspective, the pricing of CO₂ is significant. Since January 2023, the emission of one tonne of CO₂ has been subject to a tax of EUR32.50. This tax rate will be incrementally increased to EUR55 in 2025 when it will be transferred to an ETS. The exact design of the market system is still being developed.

The current Austrian government surpassed the EU legal requirements by passing a new climate strategy, which provides the following climate targets:

• reducing non-ETS emissions by 48% (compared to 2005) by 2030;
• reducing ETS emissions by 43% (compared to 2005) by 2030;
• coverage of 100% of Austrian electricity consumption with renewable energy by 2030; and
• climate neutrality by 2040 (2050 at the latest).

As soon as the harmfulness of asbestos was recognised, certain asbestos products were banned in Austria (as early as 1978). In 1990, it was prohibited (with only a few exceptions) to placeobjects containing asbestos on the market. Since 2004, the sale and use of objects containing asbestos has been generally prohibited (Chemicals Prohibition Ordinance). Since 2007, all asbestos waste has had to be collected, treated and disposed of as hazardous waste. Even the import of asbestos waste into Austria is prohibited.

Built-in products containing asbestos should not be removed without cause. Installed asbestos-cement products do not automatically endanger the health of residents. However, either an assessment of the condition of the building material or a comparison of indoor/outdoor air pollution can serve as the “cause” required for the removal of built-in asbestos products.

During removal, asbestos-containing products must be dismantled and stored in separate collection containers in order to prevent the release of asbestos fibres, while complying with employee protection regulations.

The protection of workers against risks relating to asbestos exposure in the workplace is regulated by the Workers’ Protection Act 1994 (ArbeitnehmerInnenschutzgesetzes, or ASchG), which provides – inter alia – for the use of personal protective equipment during renovation work. Additionally, specific ordinances provide for:

• limit values;
• suitability;
• follow-up examinations in the case of asbestos exposure; and
• the labelling of asbestos products in workplaces.

Asbestos waste may only be passed on to an authorised waste collector in compliance with the provisions of the Waste Documentation Ordinance (Abfallnachweisverordnung). According to the Landfill Ordinance (Deponieverordnung), asbestos waste – including asbestos-cement waste – may only be deposited in landfills for non-hazardous waste under very specific conditions.

The European Waste Framework Directive (2008/98/EC as amended) is implemented by the Austrian Waste Management Act. It covers a broad range of waste-related regulations, including recycling and recovery targets, definitions, treatment obligations, permitting, and waste shipment regulations.

Key regulatory controls comprise not only the permitting of collection and treatment of waste activities, but also the building and operation of waste treatment (and other waste-related) plants. Documentation requirements are generally vast and may force stakeholders to implement extensive record-keeping systems. Specific regimes cover (among other things) the prerequisites for:

• the operation of collection and recovery systems; and
• the notification of waste shipments.

In the area of waste management, a “circular economy package” (Kreislaufwirtschaftspaket) was passed in an amendment to the Waste Management Act in order to implement an EU directive. Among other things, this standardises extended producer responsibility measures to reduce disposable plastic packaging and bans the import of certain wastes for landfilling.

It should be noted that key regulations are not limited to the Waste Management Act. In many areas of waste law, specific ordinances have been issued that are based on the Waste Act. Those ordinances govern (inter alia):

• packaging and packaging waste;
• batteries;
• waste electronic and electrical equipment;
• landfills;
• waste labelling; and
• waste incineration.

Many cases of corporate environmental liability can be attributed to missing or false information about waste materials. Compliance with the documentation obligations is therefore a huge step towards preventing liability. A second main source of liability is the illegal deposition or export of waste. Waste-handlers would therefore be well advised to inspect the authorisation of the consignee.

It is worth highlighting that Austrian waste law requires the presence of a person with the necessary skills for the handling of waste in companies that collect and treat waste. In other companies, responsibilities (and therefore liabilities) under waste law may be delegated to responsible persons under the Administrative Criminal Code (see 8.1 Directors and Other Officers).

The obligations in relation to design, take-back, recovery, recycling and disposal of goods are scattered across several legal areas and even more legal acts in Austria. The most prominent provisions, which can be found in food, machine, pressure equipment and waste law, aim to:

• reduce the environmental impact of goods; and
• regulate ecological design, the use of chemicals, and take-back, recovery or recycling obligations.

Since there are no general obligations that apply to all goods, the specific obligations must be determined for goods on a case-by-case basis.

See 6.2 Reporting Requirements.

See 5.2 Disclosure.

In Austria, large corporations, groups of companies and companies of public interest are required to include the information necessary to understand the impact of their activities in their annual management reports. This information should cover:

• environmental, social and labour issues;
• respect for human rights; and
• the fight against corruption and bribery.

Many national laws impose a wide range of reporting and verification obligations on operators (eg, of landfills, hydroelectric plants, industrial installations, etc). Environmental permits may also require recurring information to be submitted to the competent public authorities regarding:

• the environmental status of installations; and
• compliance with the provisions of the relevant permit.

Green finance agreements are, similar to traditional financing agreements, entered into between private parties (eg, financial institutions, banks and companies etc). Depending on the specific green finance agreement, the parties undertake (by way of contractual obligations) to fulfil key performance indicators which are currently deemed relevant in the field of green finance due to market standard or applicable legislation. Due to the private nature of green finance agreements, monitoring and enforcement is primarily in the hands of the parties, who in some instances may appoint ESG rating agencies for the monitoring of key performance indicators, and ultimately, to enforce their rights through courts or arbitration bodies.

Environmental due diligence is typically conducted on M&A, finance and property transactions with targets in Austria. The scope and depth of the due diligence depend on the parties’ guidelines and the type of target. Zoning and permit reviews ‒ as well as all aspects of contamination – are typically within the scope of real estate transactions. If the target is an existing company, further aspects such as concessions, permissions and production-related topics can be relevant.

In general, the focus in environmental due diligence is on:

• the historical and current use of the site;
• the product, production process and related environmental risks;
• the site-related aspects and requirements (eg, the zoning and development plan, contaminations, war relics, and asbestos);
• the existence of ‒ and compliance with ‒ relevant permits, approvals and licensing requirements;
• the identification of completed, pending or announced authority enforcement actions; and
• the quantification of relevant risks and risk mitigation recommendations.

There is no general legal obligation for a seller to disclose any environmental information to a purchaser. However, a seller must consider that potential future claims by a purchaser are less likely to succeed if the purchaser was precisely aware of the risks at the time of purchase.

Furthermore, a certain degree of environmental disclosure makes sense, as a total absence of disclosure could arouse the purchaser’s suspicion. Disclosure would also be advisable if the purchaser explicitly asks for certain information.

The various taxes and fees that can be classified as environment-related have already been discussed in 7.2 Environmental Taxes.

Environmental disputes between private parties are generally subject to civil law.

Special legal provisions on dispute resolution in environmental disputes can be found for the settlement of disputes between member states regarding the interpretation or application of the Alpine Convention (see Protocol on the Implementation of the Alpine Convention of 1991 on the Settlement of Disputes).

However, the Administrative Procedure Act also provides for certain “environmental mediation”. Accordingly, the head of negotiations must work towards reaching a settlement if two or more parties are confronted with conflicting claims. The Environmental Impact Assessment Act permits mediation procedures between project applicants and other parties involved in the procedure.

In criminal proceedings, a diversion procedure can also be considered instead of a conviction. Diversion is the possibility for the Public Prosecutor’s Office or the court to dispense with formal criminal proceedings if the facts of the case have been sufficiently clarified. In this case, the accused is offered the opportunity to submit to an incriminating measure to avoid a court conviction.

The numerous recent amendments to EU legislation already require comprehensive reform of Austrian environmental law. To implement the ambitious climate plans and accelerate the energy transition, several amendments have already been made, most recently the comprehensive amendment to the Environmental Impact Assessment Act in 2023.

With regard to the implementation of innovations at EU level, there is now a need for reform in Austria, such as for the recently adopted RED III Regulation in particular. This requires numerous changes in the national legislation but also provides the opportunity to put the fragmented administrative procedural law and the different competencies for renewable energy projects on a new foundation.

At national level, the main goal is to introduce amendments ranging from the cost-efficient acceleration of procedures and the minimisation of land consumption, to measures to reduce CO₂ emissions. One hurdle, particularly in the implementation of EU legislation, is the use of undefined legal terms that offer a wide scope for interpretation. The aim in this case is to achieve the most efficient possible transposition into national law.