Environmental organizations receive more tailwind from the Supreme Court: In its ruling of 22 May 2025 (Ra 2023/10/0330), the Administrative Court (“VwGH”) clarified that recognized environmental organizations may lodge complaints against nature conservation permits even if they are not actually entitled to party status under national law - provided that the project affects environmental goods protected under EU law.

This decision significantly strengthens the position of environmental organizations in the procedure and will have far-reaching consequences beyond the individual case - not least for project applicants and authorities.

Background and initial proceedings

This case is based on a nature conservation permit issued in 2021 for the construction of a forest road. The authority granted the permit on the grounds that a significant impairment of nature conservation was largely ruled out. The environmental organization lodged an appeal against this decision with the Provincial Administrative Court of Lower Austria (“LVwG”) and requested that a comprehensive nature impact assessment be carried out in accordance with § 10 NÖ NSchG 2000, as in the opinion of the environmental organization - contrary to the statements of the expert consulted in the proceedings - significant effects on protected assets were to be expected and a nature impact assessment should therefore be carried out.

However, the LVwG dismissed the complaint. However, this was not for substantive reasons, but because the environmental organization did not have party status, as the proceedings were based on § 8 NÖ NSchG 2000 (permits in landscape protection areas) and environmental organizations have no right of appeal in such proceedings under national law. In the course of an extraordinary appeal, the VwGH now dealt with the question of whether an environmental organization can lodge an appeal against a project under nature conservation law, although the proceedings in question are not a licensing procedure in which the environmental organization has no right of appeal due to the (merely) domestic legal situation.

Key messages of the findings

In the opinion of the Administrative Court, the LVwG's view that the party status of the environmental organization should be assessed solely on the basis of the NÖ NSchG is too narrow with regard to the requirements of EU law and the case law of the ECJ on Art 9 Aarhus Convention in conjunction with Art 47 CFR. The aforementioned provisions require effective judicial protection in the event of potentially environmentally damaging projects. In the opinion of the Administrative Court, the authority had formally issued a permit in accordance with § 8 NÖ NSchG, but had also dealt with aspects of a nature impact assessment in accordance with § 10 NÖ NSchG, which implements Art 6 para. 3 of the Habitats Directive. It was therefore a project with environmental impacts relevant under EU law, which, in the opinion of the Administrative Court, gave the environmental organization party status under EU law to have the authority review compliance with these provisions, even without express national authorization.

Significance beyond the individual case

With this ruling, the Administrative Court confirms its previous case law with regard to the ECJ ruling “Protect” (Case C-664/15), which brought about a change in that it now obliges the Member States to ensure effective judicial protection of the rights guaranteed by Union law, in particular the provisions of environmental law. On the other hand, the decision of the Administrative Court also has a significance that goes beyond the individual case. The legal opinion of the Administrative Court has an impact beyond the specific individual case in that the obligation to comply with EU environmental regulations postulated by the Administrative Court may mean that environmental organizations must also be granted party status or at least the right to appeal in proceedings in which national law does not yet provide for this. National regulations - such as the Lower Austrian NSchG in its current version - are therefore in tension with EU law and, insofar as they restrict the party status of environmental organizations, may not be in conformity with EU law. In the opinion of the Administrative Court, the decisive factor for the question of party status is whether the content of EU environmental regulations is affected.

The Administrative Court's ruling will not only lead to a change in previous case law with regard to nature conservation approval procedures, but may also have retroactive effects on projects that have already been completed. This is because environmental organizations can now also obtain party status in proceedings in which this was previously excluded under national law. This increases the legal risk that projects can still be successfully challenged retrospectively.

Conclusion and outlook

The effects of the decision extend far beyond this specific case:

- In future, environmental organizations will also be able to lodge complaints in proceedings in which national law does not provide for party status - provided that the project may have environmental impacts relevant under EU law.

- Authorities must increasingly deal with the question of whether protected interests under EU law are affected - even if the national legal basis does not appear to provide for an environmental assessment.

- Project applicants are well a​​​​​​​dvised to consider the possible participation rights of environmental organizations at an early stage, even for smaller nature conservation projects. Otherwise there is a risk of delayed procedures or subsequent challenges, even for projects that have already been approved.

Particularly explosive: The decision of the Administrative Court could also have retroactive effect. Proceedings that were concluded without environmental organizations being a party could be reopened under certain circumstances.