Report on individual constitutional rights to environmental protection in AUSTRIA

Florian Ermacora

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:

  1. 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 rights.
  2. 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.
  3. 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.
  4. 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.
  5. The constitutional stipulation has certain impacts on private law, in particular for the interpretation of general clauses, such as "public morals" (Gute Sitten).

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