Environmental Law 2021

Last Updated November 30, 2021

Austria

Law and Practice

Authors



Schoenherr Rechtsanwälte is a full-service firm, offering not only transactional advice of the highest level, but also unmatched expertise in competition, regulatory, intellectual property and other more specialised areas of law. With offices across Central and Eastern Europe, tailor-made teams assembled from the firm's various practice groups share resources, local knowledge and international expertise. Within the firm, the environmental group is a leader in advising clients, authorities and other stakeholders on all aspects of environmental law, permits and authorisations. Many of the landmark cases and most important approvals in recent years, such as the third runway at Vienna Airport, can be traced back to the team.

The Austrian environmental protection regime is one of the strictest in the world. As a member state of the European Union, Austria is obliged to implement and put into effect the (already strict) European environmental law. However, the 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 inter alia the precautionary principle, the "polluter pays" principle, and the principles of no deterioration and amelioration of elements of the environment.

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

Federal Acts

  • Environmental Impact Assessments (Umweltverträg-lichkeitsprüfungsgesetz, UVP-G).
  • Waste (Abfallwirtschaftsgesetz, AWG).
  • Water (Wasserrechtsgesetz, WRG).
  • Trade (Gewerbeordnung, GewO).
  • Air Pollution Control (Immissionsschutzgesetz-Luft, IG-L).
  • Mining (Mineralrohstoffgesetz, MinRoG).
  • Electricity (Elektrizitätswirtschafts- und -organisationsgesetz, ElWOG).

Provincial Laws

  • Nature Protection (Naturschutzgesetze, NSchG).
  • Construction (Baugesetze und -ordnungen, BauO).
  • Land Use and Zoning (Raumordnungsgesetze und -ordnungen, RO).

In Austria, due to the complex distribution of competences between the federal government and the provinces already mentioned in 1.1 Key Environmental Protection Policies, Principles and Laws, responsibility for environmental-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 (Landeshauptmänner) often act for the competent federal minister. Therefore, only an approximate overview of the responsibilities can 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, BMK);
  • the Federal Ministry for Agriculture, Regions and Tourism (Bundesministerium für Landwirtschaft, Regionen und Tourismus, BMLRT); and
  • the Federal Ministry for Digitalisation and Business Location (Bundesministerium für Digitalisierung und Wirtschaftsstandort, BMDW).

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 topics such as spatial planning, environmental impact assessments and nature conservation. For certain matters – eg, 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, such as land use and zoning plans as well as building law.

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

In Austria, environmental incidents and breaches of law (also comprising 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, 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; investigations related to private damages lie within the responsibility of the civil courts.

Investigative and Access Powers of Regulatory Authorities

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, 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 investigative and access acts of 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, StPO). Since the regulatory authorities are tasked not only with the investigation but also the mitigation of environmental damages, the investigative and access powers of the Public Prosecutor's Office related to environmental incidents and breaches of environmental law differ slightly from the regulatory authorities' powers. The Public Prosecutor's Office wields, for example, 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, for example, 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 Civil Courts

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

When Is an Environmental Permit Required?

As a general principle, environmental permits are required under Austrian law if the "public interest" or third-party rights (eg, landowners' or fishing rights) can 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 competences, 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 (Umweltverträglichkeitsprüfungsgesetz, UVP-G). 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, Water, Forestry, Nature Protection and Construction Acts). 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, our experience has shown that diligent preparation allows an efficient permitting process even in parallel with several authorities.

Procedure

The individual permitting procedures are in general initiated via 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 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, VfGH) and the High Administrative Court (Verwaltungsgerichtshof, 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, foresee additional rights to be heard and to appeal decisions on environmental permits.

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 3.1 Investigative and Access Points) 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 costs of 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-digit (or even higher) sums. According to the Constitutional Court, there might be an upper limit for administrative fines; however, this limit is well above 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 6. Corporate Liability).

Liabilities under Criminal Law

Under criminal law, both natural and legal persons (see 6. 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.

As a general principle, the liability for environmental damages can only be imposed on the person(s) responsible for the damage. This principle applies particularly to administrative criminal and criminal law: 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 if 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 authoritative orders. Similar provisions exist, for example, in the Water and Waste Acts.

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.

For the types of liability for environmental incidents or damages in Austria, see 4.1 Key Types of Liability. Due 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). In our experience, 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 4.1 Key Types of Liability, breaches of environmental law and environmental damages 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, VbVG), legal entities can be held liable in two cases.

In the first case, a legal entity may be liable if:

  • a "decision-maker" (Entscheidungsträger) of the entity;
  • culpably (ie, depending on the offence, intentionally or negligently) and illicitly;
  • commits a crime punishable under the Criminal Code (StGB);
  • in his or her role as decision-maker;
  • for the benefit of the entity; and
  • in breach of the entity's legal obligations.

The second case is employee crimes, for which legal entities can only be held liable if:

  • an employee of the entity;
  • culpably (depending on the offence, intentionally or negligently) and illicitly;
  • commits a crime punishable under the Criminal Code (StGB);
  • for the benefit of the entity; and
  • this was enabled or substantially simplified by the disregard of the necessary diligence by decision-makers, especially due to the lack of technical, organisational or personal measures preventing such offences.

If the prerequisites are met, legal entities can be fined up to 50% of their annual yield (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 4.1 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, 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.

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, not 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 – that is, if their roles exceed simple (part-)ownership (eg, if a shareholder takes part in the management of or is employed by a company).

Liability of shareholders or parent companies under administrative law is only possible in very specific cases. As a rule, only the subsidiaries are responsible for environmental damages 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 damages 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 5.1 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 the one hand, shareholders (including 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 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 (eg, directors' liability – if a shareholder is appointed as a managing director – or blatant undercapitalisation).

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

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

Since corporations and individuals are equal under administrative law (see 6. 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' insurance (D&O policies) are common in the Austrian insurance market. However, certain insurers will exclude certain liabilities/penalties based on the terms of insurance and the nature of the misconduct. Therefore, certain liabilities/penalties – for instance, caused intentionally or by gross negligence – could turn out, ultimately, not to be insurable.

Austrian law does not stipulate liability for environmental damage or breaches of environmental law only based on 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 5.1 Liability for Historical Environmental Incidents or Damage and 6. Corporate Liability).

Liability risks of financial institutions or lenders can be avoided through abstention from (co-)management rights and the transaction/ownership of assets. If (co-)management rights and/or ownership of assets are transferred, (financial) environmental due diligence are common (see 16.1 Environmental Due Diligence).

The most important legal basis of civil liability for environmental damages is the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). However, specific liability provisions can also be found in other acts – for example, in the Water Act (Wasserrechtsgesetz), Forest Act (Forstgesetz), Genetic Engineering Act (Gentechnikgesetz) or the Nuclear Liability Act (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 are (i) neighbourhood law, aiming at achieving an appropriate balance between conflicting interests of use, (ii) the general liability for fault, and (iii) a system of strict liabilities. Under neighbourhood law (i), the exercise of the property or (plant) operation 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, the excess of thresholds), negative emissions (eg, deprivation of light or air) or certain emissions from licensed installations (ie, a form of compensation for permitted emissions).

The general liability for fault (ii) provides for a legal responsibility under civil law for the illegal and culpable violation of legal assets or rights of third parties.

According to the Austrian systems of strict liability (iii), the injuring party is liable for damage resulting from a permitted hazard which he or she was 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 are only common in the form of an accumulation of actions, which is known as a "class or group action of Austrian character". In this case, 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 9.4 Landmark Cases are (strictly speaking) also individual actions that are aggregated by the courts due 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 were not saleable, and even green fodder or 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 it 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 from the Constitutional Court. Despite the rejection, the motions clearly show the direction for future lawsuits.

Schedule for Backing Out of 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 fossil fuels. In August 2021, the Minister decided that the applicants had no right to such an ordinance. Currently, this procedure is pending at the Vienna Administrative Court and will ultimately be decided by the Constitutional and/or High Administrative Court(s).

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 environmental-related procedures. In a nutshell, the complex legal situation can be described as follows: in a constellation where participation in an administrative procedure is a requirement for challenging administrative decisions, in Austria acknowledged environmental organisations have participation rights in procedures where European environmental law could be affected. This has led to numerous adjustments in the affected Austrian laws, such as under the Water Rights Act, Waste Act, Clean Air Act, Forestry Act and Nature Conservation Acts.

As a 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 4.1 Key Types of Liability and 6.1 Liability for Environmental Damage or Breaches of Environmental Law). However, Austrian law provides for several possibilities to transfer or apportion such liabilities.

The most prominent example is the appointment of responsible persons for certain matters (see 7.1 Directors and Other Officers). If a responsible person is lawfully appointed to the authority, only this person 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, the transfer of liabilities for gross negligence is – in principle – not transferrable. Also, the (ultimate) bearing of fines under criminal and administrative criminal law is contra bonos mores if the contract is concluded 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 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 offices).

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.

A wide range of environmental insurance is offered on the Austrian insurance market. The most common policies cover incidental environmental damages and related liabilities under civil and administrative law (see 4.1 Key Types of Liability; for D&O policies see 7.2 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. For example, environmental damages resulting from the operation of facilities may only be covered if all the obligations under environmental law and the necessary permits were observed (eg, maintenance obligations, limitations to the facility's operation).

Regulations concerning contaminated land can be found in numerous laws in Austria, particularly the Water Act (Wasserrechtsgesetz), the Waste Management Act (Abfallwirtschaftsgesetz), the Trade Act (Gewerbeordnung) and Contaminated Sites Remediation Act (Altlastensanierungsgesetz). Under all acts, the "polluter pays" principle applies. Thus, the primary responsibility for remedying contamination lies with the polluter.

However, several provisions also provide for a subsidiary liability of the property owner. This subsidiary liability may arise, for example, if the person 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 last and the current owner.

The Water Act (Wasserrechtsgesetz) is the most important basis for initiating remediation or safety measures: In line with the general concern to keep water bodies (especially groundwater) clean, permits under the Water Act are required for impacts on water bodies that impair 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 Act and the Environmental Liability Acts; in many cases remediation measures are therefore prescribed under more than one legal basis.

The Act on the Remediation of Contaminated Sites (Altlastensanierungsgesetz) aims to (i) identify contaminated sites in need of remediation that pose a significant risk to human health or the environment, (ii) finance and (iii) implement appropriate remediation measures. It lays down the framework conditions for risk assessment procedures of contaminated sites and for issuing remediation orders for contaminated sites. In addition, a contribution is levied for the landfill and incineration of waste (so-called "contaminated site remediation contribution") for the remediation of contaminated sites.

In Austria, three categories are generally distinguished in connection with contaminated land, as listed below.

  • "Contaminated sites" are only those areas that were contaminated before 1989 and that 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 be secured or remediated, or be under observation after remediation.
  • "Suspected contaminated sites" are those areas reported by the provinces (Länder) to the federal government which have yet to be identified; they are listed in the register of suspected contaminated sites.
  • Contamination after 1989 is referred to as "new damage": critical deposits and facilities are subject to strict environmental monitoring, the aim of which is to identify, prevent, reduce and remediate environmental problems promptly.

Like the European Union, Austria is a member of the Paris Convention on Climate Change. Therefore, the Convention objectives such as keeping anthropogenic global warming under 2°C, also apply for Austria. Within the European Union, by 2030 greenhouse gas emissions must be reduced by 40% compared to 1990, the share of renewable energy must be 32% and energy efficiency must be improved by 32.5% (EU Climate and Energy Package). The targets are currently being revised, especially since a 55% reduction in greenhouse gas emissions by 2030, as compared to 1990 levels, has been issued as a new goal ("Fit for 55"). The instruments to reach these goals are, for example, the emission trading system (ETS) and "effort sharing" between member states.

In Austria, the main laws concerning these instruments are the Emission Certificate Act (Emissionszertifikategesetz, EZG), the Climate Protection Act (Klimaschutzgesetz, KSG) and the Federal Energy Efficiency Act (Bundes-Energieeffizienzgesetz, EEffG). The key principles of the Austrian climate strategy are:

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

Surpassing the European Union legal requirements, the current Austrian government passed a new climate strategy, which provides the following climate targets:

  • reducing non-ETS emissions by 36% 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 the placing on the market of all objects containing asbestos – with only a few exceptions – was finally prohibited. Since 2004, the placing on the market and use of asbestos has been generally prohibited (Chemicals Prohibition Ordinance). Since 2007, all asbestos waste must 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, both an assessment of the building material condition 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 exposure to asbestos in the workplace is regulated by the Workers' Protection Act, providing inter alia for the use of personal protective equipment during renovation work. Additionally, specific ordinances provide for limit values, the suitability and follow-up examinations in the case of asbestos exposure or the labelling of asbestos (products) at 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/EG as amended) is implemented – in principle – in the Austrian Waste Management Act (Abfallwirtschaftsgesetz, AWG). It covers a broad range of waste-related regulations, such as 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, for example, the prerequisites for the operation of collection and recovery systems or the notification of waste shipments.

However, key regulations are not limited to the Waste Act: for many areas of waste law specific ordinances were issued that are based on the Waste Act. Those ordinances govern inter alia:

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

In our experience, many cases of environmental liability of corporations can be attributed to missing or false information about (waste) materials.  Compliance with the documentation obligations is therefore a huge step to prevent liability. A second main source of liabilities is the illegal deposition or export of waste. Thus, the waste handlers are well advised to examine 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 7.1 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 can be found in, for example, food, machine, pressure equipment and waste law, and aim to reduce the environmental impact of goods and regulate especially the use of chemicals, ecological design, or 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.

Reporting requirements foreseen in the Seveso Directive and the IPPC Directive have been implemented in Austria in various laws and ordinances, for example in: the Trade Act (Gewerbeordnung), the Waste Act (Abfallwirtschaftsgesetz), Mining Act (Mineralrohstoffgesetz), the Emission Control Act (Emissionsschutzgesetz für Kesselanlagen) and the Industrial Accidents Ordinance (Industrieunfallverordnung). These obligations are accompanied by purely national reporting requirements throughout the relevant Environmental Acts. 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

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

  • the circumstances of the accident;
  • the substances involved;
  • the available data for assessing the consequences of the accident for 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 to be notified are:

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

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

Owners of establishments posing 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.

Under Austrian law, public authorities and public institutions must grant access to information on the environment to everyone. In addition, Austrian environmental information law goes beyond mere free access to environmental information and obliges public authorities to obtain information on their own initiative and to make it available to the public.

Informative environmental information is understood to be 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), cost-benefit analyses and other economic analyses, etc. 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 committed in an abusive manner;
  • the request has remained too general; and
  • the request concerns material in the process of being completed, unfinished documents or similar.

Before refusal, the interests speaking for and against the disclosure must be weighed by the competent authorities.

Compulsory Disclosure

Environmental information that must, in all cases, be actively disseminated 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 has been assigned to the Federal Environment Agency (Umweltbundesamt).

In Austria, large corporations, groups of companies and companies of public interest are required to include, in their annual management reports, information necessary for understanding the impact of their activities, covering at least 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 (landfills, hydroelectric plants, industrial installations, etc). Environmental permits may also require recurring information to be submitted to the competent public authorities on the environmental status of installations and compliance with the provisions of the relevant permit.

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. In real estate transactions, zoning and permit reviews as well as all aspects of contamination are typically within the scope. 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 an 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, such as the zoning and development plan, contaminations and war relics, asbestos, etc;
  • 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 promising if the purchaser was precisely aware of the risks at the time of the purchase. Furthermore, a certain degree of environmental disclosure is common sense. A total absence of disclosure could therefore arouse the purchaser's suspicion. Disclosure could also be advisable if the purchaser explicitly asks for certain information.

In Austria there are various taxes and fees which can be considered environment related. However, these taxes are very selective and there is not an holistic approach to environmental taxation. The taxes and fees can be divided as follows.

Energy

  • Mineral oil tax.
  • Energy taxes (coal, gas, electricity).
  • Emission certificates.

Transportation

  • Engine-related insurance tax.
  • Standard consumption tax.
  • Car registration tax.
  • Car tax.
  • Flight tax.
  • Road user tax.

Environmental Pollution

  • Contaminated site remediation contribution.

Resources

  • Property tax B.
  • Hunting and fishing fees.
  • Landscape and nature conservation levy.
Schoenherr Rechtsanwälte

Schottenring 19
Vienna
A-1010
Austria

+43 1 534 37 0

+43 1 534 37 66100

office.austria@schoenherr.eu www.schoenherr.eu
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Law and Practice

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Schoenherr Rechtsanwälte is a full-service firm, offering not only transactional advice of the highest level, but also unmatched expertise in competition, regulatory, intellectual property and other more specialised areas of law. With offices across Central and Eastern Europe, tailor-made teams assembled from the firm's various practice groups share resources, local knowledge and international expertise. Within the firm, the environmental group is a leader in advising clients, authorities and other stakeholders on all aspects of environmental law, permits and authorisations. Many of the landmark cases and most important approvals in recent years, such as the third runway at Vienna Airport, can be traced back to the team.

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