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Austria. Schoenherr leads Vienna Airport to victory in hearing about third runway: Constitutional Court repeals Federal Administrative Court decision

Schoenherr has achieved an important victory on behalf of Vienna International Airport (“VIE”) and the province of Lower Austria in the case regarding the construction of a third runway at the airport. Schoenherr partner Christian Schmelz and his team succeeded in persuading the Constitutional Court to overturn the decision of the Federal Administrative Court from February 2017, which had rejected the permit application for the environmental impact assessment that would be necessary for the construction of the third runway. The Federal Administrative Court must now reach a new decision in this matter.

Landmark decision
“The decision of the Constitutional Court is significant in that it has far reaching consequences for many other projects beyond the scope of the third runway. It is also relevant to Austria as a business hub,” stated Schoenherr environmental law expert and partner Christian Schmelz.The Constitutional Court has cleared the uncertainty left as a result of the decision reached by the Federal Administrative Court at the beginning of the year. The swift and clearly-worded verdict was thus highly welcome.”

The permit application for the construction of the third runway at VIE was rejected by the Federal Administrative Court on the grounds of climate protection and land use. As a result, Schoenherr lodged a complaint with the Constitutional Court as well as an extraordinary appeal with the Higher Administrative Court.

Constitutional Court heeds Schoenherr’s arguments
The complaint brought before the Constitutional Court was a success: Constitutional Court President Gerhart Holzinger announced on 29 June 2017, that the decision of the Federal Administrative Court was repealed, in line with the points brought up by Schoenherr in its complaint. The Constitutional Court found that the rejection of the permit application for a third runway based on considerations of climate protection and land use was unconstitutional. Air Traffic Law does not provide any legal basis for such a decision, and neither do any of Austria’s commitments to international agreements, or governmental decisions.

Additionally, the Constitutional Court agreed with Schoenherr’s complaint that it is inadmissible to attribute to a specific airport the carbon emissions of an entire international flight (e.g. from Vienna to New York) rather than just the carbon emissions released during landing and take-off. The Constitutional Court also stated that both the Kyoto Protocol and the Austrian Climate Protection Law explicitly exclude air travel from their stipulations. Therefore, carbon emissions cannot be used as an argument against the third runway. The Constitutional Court continued to clarify that it is the aircraft operators and not the airports that are responsible for climate protection during air transportation.

The team supporting Christian Schmelz has been advising and representing VIE and the province of Lower Austria in this litigation as well as in other cases regarding the third runway. Schoenherr was supported by a team of technical and legal experts, both local and international, among which were KWR partner Bernhard Raschauer, Of Counsel; and Wolfgang Koeberl, head of the legal department of Vienna International Airport.

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