The convention was signed and ratified by Austria, and implementation has already begun under the law on environmental impact assessment and public participation.4 Austria is also a member of the Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948.5 It is also a member of the Convention on the Conservation of European Wildlife and Natural Habitats, adopted by the Council of Europe on September 19, 19796 and a member of the Convention on the Protection and Use of the Transboundary Watercourses and International Lakes, adopted at Helsinki on March 17, 1992.7
Austria has been a member of the European Union since 1995, and has implemented Directive 90/313/EEC of the European Community Council on the freedom of access to information on the environment, adopted on June 7, 1990. It has also implemented Directive 85/337/EEC of the European Community Council on the assessment of the effects of certain public and private projects on the environment, adopted on June 27, 1985. Austria has ratified Agenda 21, adopted by the United Nations Conference on Environment and Development at Rio De Janeiro and the Rio Declaration on the Environment and Development, adopted by the United Nations Conference on Environment and Development at Rio de Janeiro on June 14, 1992.
There have been no attempts either by the government or by NGOs to evaluate the implementation of Sofia Guidelines on Public Participation and Access to Environmental Information. Unfortunately there has been little discussion within the NGOs on governmental action towards the Sofia Guidelines.
The UIG is not universally applicable throughout the federation of states. Only three states have adopted their own laws regarding environmental information.10 Environmental information relating to areas of competencies which belong to the states can be accessed as general information by their own laws on the duty to furnish information.
Definition of Environmental Information
The UIG defines the term "environmental information" and "environmental data" as all information on the environment held by public authorities and stored in a database. All data with an environmental aspect falls within the scope of the UIG, provided that the requested information is held by a public authority. But one has to keep in mind that only information/data on matters under federal law is subject to the UIG. Information which falls under the responsibility of the states is not covered by the UIG.
Section 2 of the UIG defines "environmental data" as information about:
Conditions for Obtaining Information
The public authorities and bodies obliged to provide environmental information are administrative authorities with environmental functions which are subject to federal law, administrative bodies without supreme power (e.g. the federal environmental agency), and private executive bodies responsible for environmental matters.
The UIG does not apply to private enterprises fulfilling functions of public assistance which do not act as governmental agencies (e.g. the power supply enterprises). The business sector is generally not obliged to provide information to the public. In some areas, factories have to publish emission data and the operators of factories surpassing accepted emission standards are obliged to inform the public about the risks of accidents as well as applicable measures to take in case of an accident.
The federal ministry of the environment is able to provide further information for industries by decree. But such decrees can only be developed in coordination with other ministries, in particular with the ministry for economic affairs. This is a significant barrier to the expansion of the active information obligations for companies.
The UIG requires an authority to reply to a request for environmental data as quickly as possible, but at the latest within eight weeks.
The UIG says that "everyone has the right of free access to environmental data, without evidence of legal entitlement or legal interest." Each natural or legal person, whether an Austrian citizen or a foreigner, is entitled to environmental information. This right exits irrespective of the person's age.
After clarification, if the requested information is available and if there are no pressing interests of confidentiality, the response must be communicated in a "generally understandable way" so that unintelligible technical terms or codes are not included. Information can be made available on discs, videos, films, CDs, tape recordings, hard-discs and, of course, written documents.
Refusal to Provide Information
In the case of some environmental data, there may in specific circumstances be a declared interest of the state or of third parties in maintaining confidentiality which can operate to prevent access to environmental data.
These interests are:
The third point is specifically important for environmental questions because so-called "business secrets" are also included among the interests of third parties. Although there is no clear definition of this term in the Austrian legislation, some elements can be outlined:
Commercial secrets include capacities, market shares, turnovers, investment plans and balance sheets. Industrial secrets refer especially to the process of production, technical know-how, stock-keeping, etc. In addition, there is also the view expressed that the contents of some decisions should be considered to be business secrets.
The authority is required to investigate in detail:
The two further cases where access to information can be refused are:
Informal Guidelines for Agencies and the Public
The guidelines for authorities concerning the provision of environmental information are the regulations of the UIG. Concerning general information, the regulations of the Federal Law on the Duty to Furnish Information (Auskunftspflichtgesetz) are relevant. In contrast to this law, the UIG is more detailed and specified. For example, the former law does not include the right to inspection of public records. If there is a potential conflict with a business or a potential industrial secret, the Federal Law on the Duty to Furnish Information does not define a detailed procedure and criteria for a decision by the public authority on whether the information must be provided or not.
The authorities are obliged to respond to a request for environmental information. The request may be:
A request for environmental information can be expressed in any form. To formulate it in written form, by letter or fax is in most cases preferable. Requests for current daily data can of course also be made by phone. One can freely choose the form in which the information shall be provided. If the requesting person does not express a particular form, the officials can choose the most suitable one.
The public has the right to specify the form in which information has to be provided if the requested information falls within the scope of the UIG. This right applies to access to information and to access to documents.
Specific Institutions/Official to Provide Information
As noted above, the UIG applies to all authorities of the federal government. This means the UIG applies not only to those authorities primarily involved in environmental functions such as waste management or environmental control, but also to those for which environmental protection is perhaps only a minor part of their administrative function. As a consequence, trade authorities having to take aspects of environment and nature protection into consideration, such as traffic authorities administrating aspects of air and noise pollution control or authorities responsible for regional planning, are equally obliged to provide information. Excluded from these regulations are law enforcement agencies of the security police and the federal police departments.
The Federal Law on the Duty to Furnish Information applies to all authorities of the federal government. The several Laws on the Duty to Furnish Information of the nine states are substantially similar to the Federal Law. The three environmental laws of Vorarlberg, Tyrol and Upper Austria are also substantially similar to the UIG on the federal level.
If an Authority Does Not Possess the Information
In nearly all circumstances, if the public authorities do not have particular information available, they are entitled to refuse to provide this information. The laws on the duty to furnish information do not oblige the authority to get information from other bodies.
If the public authorities do not have the environmental information available, however, the situation is quite different. The UIG obliges the authorities to provide all available information requested. They are not expressly obliged to gather the information themselves, but can forward the request within an eight week period.
Information Held in Public Registers
In Austria, environmental information is held in the register of the Federal Environmental Agency (Umweltbundesamt) and is available free of charge. The agency has a very good home page, where all the data about air quality, water resources and water control, soil, forests, nature and landscapes, hazardous chemical substances, pesticides, waste, contaminated sites, noise, energy, radiation monitoring, genetic engineering and biotechnology, etc., can be found. The publications are available to the public on payment of costs. The agency is also obliged to establish and update the national Environmental Data Catalogue.
Costs of Obtaining Information
There are nearly always adequate facilities for obtaining copies of environmental information throughout the country. The authorities are obliged to make copies free of charge of all environmental information falling within the scope of the UIG. In other cases it happened in the past that requesting persons had to pay very much for copies — for example for regional development plans or construction maps. But this did not happen very often and citizens have often been quick to protest against this.
Public authorities are not obliged to actively disseminate information to the public, but they can publish environmental data if interests of confidentiality are not contradicting. The ministry of the environment is obliged to provide the parliament with a report on the state of the environment (Umweltkontrollbericht). The report has to be presented every second year by the federal ministry of the environment and is compiled by the Austrian Federal Environmental Agency. The agency is also the national focus point of the European Environmental Agency.
Section 10 of the UIG obliges the federal ministry of environment to establish an environmental data catalogue for public information. The national Environmental Data Catalogue (UDK) has been drawn up to assist in locating environmental information. The UDK is a computer supported database which has been available to the public since 1995. The UDK provides information as to who has what environmental data available and other useful information relevant to environmental matters and is accessible via Internet. The UDK is continually updated by the federal ministry for the environment.
In case of accidents, the authorities are obliged to inform the affected people about the correct emergency behavior or even to evacuate endangered people. The authorities must not actively inform the public when nobody is directly affected. The minister of the competent body is ultimately responsible for the decision. Although a comprehensive radiation control and monitoring system has existed in Austria for many years, information about dramatically increased radioactivity levels was available only a few days after the 1986 accident at Chernobyl.
There is no regulation which provides the possibility to be informed on law and policymaking for environmental NGOs, such as for the so-called "Sozialpartner", which are the major organizations of the employers and employees (i.e. the federal economic chamber, the labor union umbrella organizations, or the Federation of Austrian Industries). Most of the NGOs become informed about new environmental legislation by public authorities and are voluntarily invited for comments to the drafts.
Methods of Dissemination
The standard methods of active provision of environmental information by state bodies are publications, media reports and, in specific areas, information campaigns. The Austrian Environmental Agency publishes regular newsletters about the environment in Austria, statistical reports about environmental qualities, scientific projects, experiments etc., both as written documents and via the Internet. The environment ministry often works on information campaigns. Most of the ministries provide information electronically.
The UIG also plays an active role in persuading businesses to disseminate information. Under the UIG, as discussed above, any person has the right of access to environmental data held by government authorities. This right does not allow information to be requested directly from operators of industrial plants, however. The UIG does ensure that enterprises adhere to adopted measures and record emission data and also actively issues these environmental data to the public.
In other words, companies must publish their emissions data for the previous month or year, as the case may be, which they are obliged to measure and record. This information must be presented in an easily understandable form and provided in a location easily accessible by the public. In addition, the UIG requires companies to provide information about abnormal occurrences (comparable to the EU's so-called "Seveso Directive") according to which plants posing a risk of a serious industrial accident are obliged to inform all affected members of the public. This obligation applies to plants which on the basis of given characteristics such as size, location, or the use of hazardous methods carry the risk that an abnormal occurrence may take place.
The owner of such plants must inform the members of the affected public in advance, about:
This information must also be issued in a suitable manner, in a form understandable to the general public.
Electronic Means of Dissemination
There are no specific obligations to spread environmental information electronically. But the Internet is obviously becoming more important as an information source.
Nongovernmental Centers
There are no comprehensive nongovernmental information centers or databases. But nearly all Austrian environmental NGOs maintain Web pages and libraries which are open to the public.
The Federal Law on Environmental Impact Assessment and Public Participation11 entered into force in 1993. It includes a list of projects (i.e. hydropower plants, waste incinerators, forest clearing, road construction, etc.), which have to be examined as to whether the environmental impact is tolerable or not. In the permission proceedings, anybody is allowed to get information about the project and to comment on it within six weeks. The results of the environmental impact assessment have to be published and discussed in a public hearing. Citizens living in or around the affected municipality have the right to form a citizen party after collection of 200 signatures. The citizen parties are formal parties in the permission proceedings. Their opinions have to be taken into account, but they do not have any right to veto. Citizen parties can oppose the permission even at the constitutional court.
The Law12 on Genetic Engineering provides public participation in a specific case. So a public hearing has to be held when enterprises plan to set free a genetically modified organism. During a period of six weeks everybody is allowed to comment on the application, but nobody except the enterprise can oppose the permission or appeal to court.
In the Austrian juridical system, there are generally three different kinds of recognized referenda. They are not specifically focused on environmental matters, but apply to all political subjects. Two of them are part of the constitution. The third one is the only type that can be initiated by voters and is regulated by a federal law. The different possibilities are as follows:
Individuals and NGOs cannot formally initiate law or rulemaking. This can only be done by the parliamentarians and the government. Some NGOs make drafts for important laws — for example WWF Austria made drafts for landscape conservation for the federal states — and initiate the lawmaking process by a party or by parliamentarians.
Every Austrian citizen or group — whether as individuals or NGOs — is allowed to comment on such a project. The comments have to be taken into account, but there is no binding effect on the decisionmaking body. Comments on plans for setting free genetically modified organisms have to be taken into account, too.
Individuals and environmental NGOs do not have a legal claim to comment on law initiatives, but other NGOs have this right (i.e. the Federal Labor Union Umbrella Organization or the Federation of Austrian Industries). Austria has a long tradition of bargaining between different interest groups which are institutionally organized. This element of the Austrian political culture is called "social partnership" (Sozialpartnerschaft). The environmental movement, or feminist or other social movements, did not get access to this institution. The Sozialpartnerschaft should be seen as privileged groups in the decisionmaking process.
The effectiveness of this form of participation depends on lobbying and public pressure. For the time being, plans toward genetic engineering seem to be much more problematic in Austria than anti-nuclear sentiment has ever been. So the permission for setting free a genetically modified organism seems to be nearly impossible due to the political pressure. In 1997 environmental NGOs started successful campaigns on this issue and organized, for example, thousands of critical comments on different applications.
There is nearly no governmental funding specifically focused on public participation projects and public participation training. The ministry of environment funded some special cooperation projects, i. e. an EIA workshop proposed and organized by the Okoburo which is the coordination office of Austrian environmental organizations.
The citizen parties in the EIA process have to fund their activities privately.
Openness of Parliamentary Committees
All plenary sessions of parliament are open to the public and media, but the environmental committee is — as with all other parliamentary committees — not accessible to citizens or NGOs.
Individuals and NGOs are allowed to attend plenary sessions in the parliament sessions that are open to the public. They do not have the right to speak, but can observe. Parliamentarian committees are generally not accessible to citizens.
The Federal Economic Chamber and the Federal Labor Chamber, the agricultural chambers, the Federal Labor Union Umbrella Organization and the Federation of Austrian Industries are regularly consulted in law and policymaking.
There is training for the coordination of EIA procedures; a general training on public participation does not exist. In contrast to North American political culture, for example, the Austrian administration does not have a real tradition of transparency and public participation.
There is financial support given by the government to some NGOs which undertake environmental education, for example the umweltberatung. The promotion of public participation is part of the education programs.
Therefore there is no legal term for "environmental case." Of course, many of the several hundred cases tried by the administrative court each year have included relevant points for the protection of the environment. In public opinion the litigation about construction of a power plant or a road construction is often seen as an environmental case. But these litigations are ordinary administrative decisionmaking procedures.
Tables 1 and 2 summarize the right to legal standing in Austria.
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested/affected | x1/x | x1/x |
NGOs |
||
| everyone | - | - |
| interested/affected | - | - |
1. citizen party/EIA |
||
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | x1 | - |
| interested/affected | x2/x | -/x | -/x | - | -/x |
NGOs |
|||||
| everyone | - | x3 | - | x1 | - |
| interested/affected | - | - | - | - | - |
1. voluntarily/treaty 2. citizen party/EIA 3. as a legal entity |
|||||
Any administrative decision can be appealed against within two weeks. The judicial appeal to the administrative court and the constitutional court has to be made within six weeks of the judgment. Any application for an administrative decision has to be answered (not decided) within six weeks. This effectively means within six months of the procedure starting. Otherwise, the higher administrative body has to do so. The EIA has to be completed within 18 months.
The civil and criminal procedures includes interim and permanent injunctive relief, it is used mostly in media cases and commercial cases.
The most important obstacle to access to justice in Austria is the fact that environmental standards are not individual rights and that the constitution does not state a right to environment protection or health. Other obstacles, especially civil laws, contain difficulties in providing causal relations in case of environmental damage and difficulties in placing responsibilities for the damage that occurred.