Introduction
Pre-application procedure, public hearings and time limits
Infrastructure authority
Safeguard for project realisation
Comment
EU Regulation 347/2013 establishes guidelines to facilitate and accelerate the development and modernisation of a trans-European energy infrastructure. To this end, the regulation also defines 'projects of common interest' (PCIs) and provides a list of PCI projects that will benefit from accelerated approval procedures. The list features several Austrian projects in the energy transmission and energy storage sectors.
Austria's draft Energy Infrastructure Act – which is currently being reviewed in Parliament – contains relevant rules of procedure. However, the new act is unlikely to bring significant changes to national environmental assessment proceedings.
Pre-application procedure, public hearings and time limits
The draft act introduces a mandatory pre-application procedure, during which project promoters must submit all necessary documents in close cooperation with the relevant authority. Further, a public hearing must be held during the pre-application procedure. In line with the legislature's desire to accelerate proceedings, the duration of the pre-application procedure and the actual permit granting procedure combined may not exceed three years and five months.
These concepts are not new. In fact, the time limits in force under the existing act are even shorter than those prescribed under the draft. In addition, the existing law already provides for both preliminary proceedings and public participation. In contrast with the new act, public involvement is mandatory only after a project has been consolidated and filed for approval. The existing approach encourages swift procedures, as project can no longer be negotiated. However, given that the authorities regularly exceed decision deadlines due to the complexity of proceedings, it is doubtful whether the additional enhancement of public participation will lead to accelerated proceedings.
The draft act creates a new infrastructure authority, which will be responsible for coordinating approval procedures. The infrastructure authority will fall under the aegis of the Federal Ministry of Economics and act as a single point of contact for project promoters. However, the new law will have little influence on the status quo. In particular, this 'one-stop shop' principle has long been a tradition in Austrian environmental law. Further, the draft delegates the infrastructure authority's tasks to existing environmental assessment authorities (provincial governments) in order to take advantage of their established expertise. The infrastructure authority will act only if the project area spans two or more federal provinces. Even in this case, the infrastructure authority will have coordinating functions only, whereas the competence for the proceedings remains with the provincial governments.
Safeguard for project realisation
According to the draft law, the infrastructure authority will be authorised to:
- issue regulations prohibiting the construction of other facilities within the project area for a five-year period without the authority's consent; and
- permit construction under certain conditions.
Further details regarding these requirements will be left to the authority. The introduction of construction bans while approval is pending aims to maintain the land required to materialise the planned PCI.
This measure is a welcome concept in the field of energy-related approval procedures. In the past, project promoters had no legal instruments to ensure that project areas were kept clear until approval was granted, which gave rise to abuse.
With the impending implementation of the Energy Infrastructure Act, Austria will meet its formal obligations towards the European legislature. However, apart from the new concept of construction bans, the draft contains no substantial novelties. Therefore, it remains to be seen whether the changes will actually expedite proceedings.
For further information on this topic please contact Sandra Schönbäck at Schoenherr Rechtsanwälte by telephone (+43 1 5343 70) or email ([email protected]). The Schoenherr Rechtsanwälte website can be accessed at www.schoenherr.eu.
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