Federal Environmental Liability Act

The objective of the Environmental Liability Directive is the prevention and remediation of significant environmental damage. It covers damage to three protected assets:

• water bodies
• land protected
• species and natural habitats (this protected asset is often also referred to as biodiversity)

The directive does not provide for civil liability, but rather a system of administrative police and thus public law hazard prevention. In implementation of the polluter pays principle, an obligation to reimburse costs is linked to failure to comply with prevention or remediation obligations. In short, whoever causes environmental damage should also pay for it.

The Environmental Liability Directive was implemented in Austria at the federal level through the Federal Environmental Liability Act and at the state level through state environmental liability laws.

• European Commission

The B-UHG provides for strict liability: anyone who...

• as an operator
• in carrying out specific, exhaustively listed hazardous activities (Appendix 1 of the B-UHG)
• causes significant hazards or damage to water bodies or soil,
• regardless of fault, must inform the authorities where appropriate and take the necessary preventive or remedial measures.

Who is an operator and thus potentially liable?

This applies exclusively to the professional activities of operators, not to the actions of private individuals. An operator is any natural or legal person who carries out or determines one of the listed professional activities, including the holder of a permit or approval.

Federal Law Gazette I No. 55/2009, as amended by Federal Law Gazette I No. 74/2018 Consolidated

Federal Environmental Liability Act (RIS) (in German only)

In accordance with the Austrian allocation of competences, the scope of the Federal Environmental Protection Act (B-UHG) is limited to damage to water bodies and soil. Damage to biodiversity and soil damage caused by certain activities, however, fall under the jurisdiction of the federal states.

The B-UHG provides for strict liability: anyone who...

• as an operator
• in carrying out specific, exhaustively listed hazardous activities (Appendix 1 of the B-UHG)
• causes significant hazards or damage to water bodies or soil,
• regardless of fault, must inform the authorities where appropriate and take the necessary preventive or remedial measures.

Who is an operator and thus potentially liable?

This applies exclusively to the professional activities of operators, not to the actions of private individuals. An operator is any natural or legal person who carries out or determines one of the listed professional activities, including the holder of a permit or approval.

The range of environmentally hazardous activities relevant to liability includes, for example,

• the operation of facilities requiring a permit under the (IPPC) Directive on Integrated Pollution Prevention and Control,
• activities requiring a permit in the waste and water management sector (waste recycling,  transboundary shipment of waste, discharges into water bodies, water abstraction, impoundments),
• but also the handling of hazardous substances, pesticides,
• and biocidal products,
• the transport of dangerous goods, or the release of genetically modified organisms.

If the Federal Act on the Protection of the Environment (B-UHG) is applied due to the presence of all constituent elements, further provisions in other relevant laws remain unaffected.

If the operators remain inactive, act too late, or act inadequately, the authority must take action, order the necessary measures, or immediately order them, and ultimately require the operators to pay the accrued costs. The responsible authority is the district administrative authority (district authorities and magistrates).

Exceptions to the scope of the Federal Environmental Liability Act exist in terms of both substance (for example, when caused by armed conflicts or extraordinary natural events) and time. The Federal Environmental Liability Act does not apply to damage that occurred before its entry into force on June 20, 2009, and therefore does not provide for retroactive effect. Damage to life, health, or property is also not covered by the Federal Environmental Liability Act.

Soil damage within the meaning of the Federal Environmental Liability Act (B-UHG) occurs when soil contamination poses a significant risk of harm to human health. This must be determined by a medical expert opinion.

Water damage within the meaning of the Federal Environmental Liability Act (B-UHG) exists when there are significant adverse effects on the water body's condition, with the exception of adverse effects approved under Section 104a of the Water Resources Act of 1959. In the absence of a precisely defined threshold, the significance must be determined on a case-by-case basis. Criteria for assessing the significance of the damage can be found, among other things, in Annexes I and II of the Environmental Liability Directive and the remediation rules therein.

If the Federal Environmental Liability Act (B-UHG) does not apply, for example, due to an exception, the relevant provisions of the Water Rights Act 1959 or the Waste Management Act 2002 generally apply in the event of water or soil damage.

Persons whose rights may be violated by environmental damage, who are affected in a specific way, or who have a sufficient interest in remediation proceedings for environmental damage, as well as Non-Governmental Organization (NGOs) and environmental lawyers, can file a so-called "environmental complaint" with the authority and request action. These persons and organizations can also be granted party status in the environmental damage remediation proceedings. This entitles them to appeal to the State Administrative Court.

• For the first time, there are liability provisions for causing soil damage.
• The core idea of ​​the Environmental Liability Directive and the Federal Environmental Liability Act is the polluter pays principle, meaning that whoever causes environmental damage should also pay all associated costs (full costs). The remediation of environmental damage should not be borne by the taxpayer. Accordingly, an operator must reimburse not only the prevention or remediation costs in the narrow sense, but also the administrative costs. This is new and represents an important advance compared to the current legal situation.
• Furthermore, the cost burden is intended to deter and motivate operators to take measures and develop practices that can minimize the risk of environmental damage (preventive effect).
• Also new is the legal remedy of environmental complaints.