Regional Administrative Court follows ÖKOBÜRO and orders overhaul of clean air plan of Salzburg
The regional administrative Court of Salzburg ruled in favor of an application by ÖKOBÜRO from 2014 and found the clean air plan of the state is not sufficient to protect the health of the citizens in Salzburg. The eNGO ÖKOBÜRO applied for additional measures to curb the air pollution, after reports made it clear, that the legal limits for NOx pollution have been breached consistently in at least three monitoring stations. At first, the local authority denied the application, stating that the planned measures would suffice, which the eNGO filed against. The regional administrative Court then denied the motion, citing that an eNGO is not allowed to file such an application in the first place and that the Aarhus convention is not relevant. The case went on to the supreme administrative court, which in 2018 followed the ECJ ruling in the case C-664/15 and granted the eNGO the right to challenge the clean air plan. The case went back to the regional administrative court, which now granted the application by the eNGO and ordered the plan to be revised within the next six months. It is the first time such an application was done successfully by an eNGO in Austria.
Advocate General Kokott affirms right to challenge infringement of Nitrates Directive
Due to the exceeding of the limit value for nitrates in the groundwater in certain areas in Austria, an individual, a municipality and a water supply company had submitted applications to the Ministry to amend the action programme for nitrates. The applicants challenged the rejection of these applications in court, and the Administrative Court of Vienna referred the matter to the ECJ for a preliminary ruling. In her Opinion of March 29th 2019, the Advocate General stated that the applicants could no longer use their respective wells for the abstraction of drinking water due to the high nitrate concentration. They are therefore directly affected by the pollution and can rely on the Nitrates Directive.
Although the measures of the action programme must aim at reducing pollution from agricultural sources, the Member States have a certain degree of discretion. When reviewing the action programmes, however, the courts must at least be able to verify whether there are manifest errors, whether all relevant aspects have been examined, whether the limits of discretion have been respected and whether procedural requirements such as the duty to state reasons have been complied with.
In its judgments, the ECJ generally follows the Opinion of the Advocate General, but the decision remains to be awaited with excitement.
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