Key facts of the case:
The Federal Ministry for Transport, Innovation and Technology issued a decision allowing the double-tracking of a certain section of the railroad between Schwarzach/St. Veit and Villach. The project required an assessment of the environmental effects. The complainants argued that the Federal Ministry had not adequately assessed the environmental effects and that the applicable Austrian law failed to transpose Art. 10a of Directive 85/337/EC (as amended by Directive 2003/35/EC) as the Federal Ministry for Transport, Innovation and Technology was the only authority to decide in the case.
The Act on the assessment of the environmental effects 2000 (Umweltverträglichkeitsprüfungsgesetz 2000) transposes Directive 85/337/EC (as amended by Directive 2003/35/EC). The decision on granting or refusing the authorization in the present case therefore is a decision that falls within the scope of European Union law. Therefore the rights granted by Union law must be respected, especially Art 10a of the directive. […] The current domestic legal situation does not comply with the requirements of Union law (Art. 10a of Directive 85/337/EC as amended by Directive 2003/35/EC): in matters of assessment of the environmental effects, usually the provincial government (Landesregierung) decides as authority of first instance. A decision granting or refusing authorization can be appealed against before the Environmental Tribunal. The Environmental Tribunal is a court that may request a preliminary ruling within the meaning of Art. 267 TFEU and a tribunal within the meaning of Art. 6 ECHR. The Environmental Tribunal has to decide on the merits and is authorised to amend the decision of first instance in any direction. The Environmental Tribunal can hold oral hearings, also to take evidence. Against decisions of the Environmental Tribunal a complaint can be raised before the Supreme Administrative Court. A different competence applies regarding proceedings on the assessment of the environmental effects of federal roads and high-performance railroads. In these cases the Federal Minister for Transport, Innovation and Technology is the competent authority deciding in first and last instance (Section 24 para 1 Act on the assessment of the environmental effects 2000). This authority cannot be qualified as a tribunal. An appeal to the Environmental Tribunal is not foreseen by law. Therefore according to the text of the Act the Federal Minister decides in first and in last instance and a complaint to the Supreme Administrative Court is possible. Without doubt the Supreme Administrative Court is a court within the meaning of Art. 267 TFEU that is established by law, independent and impartial. The possibility to complain to the Supreme Administrative Court guarantees a control of the lawfulness of the administrative decision that at least complies with the requirements of Art. 10a of the directive regarding the interpretation and correct application of the relevant provisions. Thus the Supreme Administrative Court could be able in individual cases to grant the effective judicial protection required by Union law. In the area of assessment of the environmental effects the decision on the authorization of a project regularly depends on the facts, especially the kind and scope of the effects on the environment. A case as the present one, where the facts of the case assumed by the authority are questioned by the complainants, clearly shows that in the scope of application of Directive 85/337/EC (as amended by Directive 2003/35/EC), where Union law –without prejudice to Art. 47 of the Charta of Fundamental Rights or the right to effective judicial protection respectively – provides for a special right to judicial protection, an instance of judicial control, furnished with unlimited jurisdiction, cannot be replaced by the Supreme Administrative Court in its function as Supreme Court and on the basis of the provisions to be applied by the court. The Supreme Administrative Court has to control the impugned decision on the base of facts of the case as assumed by the authority. In the field of control of facts the Supreme Administrative Court therefore can only assess whether the authority when establishing the facts of the case has violated rules of proceedings, whether the facts have sufficiently been determined and whether the conclusions made by the authority regarding the facts are coherent. The Supreme Administrative Court is not eligible to make any further control of the correctness of the assessment of facts made by the authority. Also in the case an oral hearing is held the Court’s jurisdiction is limited to questions of law. As results from the considerations made above (points 3 and 4), in matters where an assessment of the environmental effects is required by Union law, a tribunal within the meaning of Art. 6 ECHR with unlimited jurisdiction has to decide, before the case can be brought before the Supreme Administrative Court. The limitation of the Environmental Tribunal’s competence as an appeals tribunal is in conflict with this requirements of Union law. […] Where application of national law in accordance with the requirements of the directive is not possible, the national court must fully apply Union law and protect the rights conferred thereunder on individuals, if necessary disapplying any provision in the measure the application of which would, in the circumstances of the case, lead to a result contrary to that directive, whereas national law would comply with the directive if that provision was not applied (cf. C-462/99, § 40). […] Therefore the provisions limiting the Environmental Tribunal’s competences have to remain disapplied, so that the Environmental Tribunal is also competent to decide on appeals against decisions of the Federal Minister for Transport, Innovation and Technology in matters of assessment of environmental effects under the third section of the Act on the assessment of the environmental effects 2000, as far as this is required by Union law.