Report on individual constitutional
rights to environmental protection in AUSTRIA
The constitutional law on environmental protection
On 27 November 1984 a constitutional law on environmental protection
was adopted by the Austrian Parliament. This law consists of two stipulations:
Article 1 paragraph 1 "The republic of Austria declares itself for
a comprehensive environmental protection"
Article 1 paragraph 2 "Comprehensive environmental protection means
the conservation of the natural environment as a basis of living of humans
against harmful impacts. Comprehensive environmental protection consists
in particular in measures to keep air, water and soil clean as well as
to prevent nuisances through noise."
The interpretation of the constitutional law on environmental protection
with special emphasis on individual rights to environmental protection
Since the adoption of the constitutional law on environmental protection
in 1984, no progress has been made at political level regarding an amendment
of the Austrian constitution regarding individual rights to environmental
protection. Also in academic cercles the respective discussion was not
very intense. Both jurisprudence of the Austrian Constitutional Court and
the academic discussion focussed on the meaning and the impacts of the
constitutional law of 1984, which has been qualified as a stipulation containing
a State�s objective ("Staatszielbestimmung"). The key points of this discussion
with regard to the topic of individual rights to environmental protection
could be summarised as follows:
The constitutional law on environmental protection of 1984 is not considered
to be a basic right. The parliamentary explanatory notes precise that this
law does not extend the existing enumeration of basic rights. A basic right
regarding the protection of the environment should � according to these
notes � be part of the general reform of the Austrian catalogue of basic
The constitutional law on environmental protection of 1984 is, however,
more than a non binding political statement. It is considered as a mandate
for all government authorities obliging them to take measures or omit measures
with a view to promote environmental protection. This affects the creation
and the implementation of law. For example, where doubts regarding the
interpretation of existing regulations remain, the administration has to
decide "in dubio pro natura". This has been confirmed by the Austrian constitutional
Court (VSlg 11.990/1989) � the same is considered to be true for the interpretation
of law by courts.
According to parts of Austrian teaching, even if the stipulation is not
a basic right itself, normal laws which are in striking contradiction with
this stipulation, could be considered as infringing the constitution. An
infringement procedure against such an unconstitutional law could even
be launched by individuals, if the individual could prove to be directly
affected by the concerned law.
The Austrian constitutional Court (VfSlg 13.102/1992) considers the stipulation
as limiting basic individual rights, such as the right to acquisition.
In this sense Courts have to weigh equally the basic individual rights,
including the right to property, and the right to environmental protection.
The constitutional stipulation has certain impacts on private law, in particular for the interpretation of general clauses, such as "public morals" (Gute