Austria: Commercial Plant Licensing Procedures Pertaining to Establishing Business Facilities

Nov 5, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has recently considered whether emissions arising during the construction of an industrial or commercial building must be taken into account in authorisation for business premises under the regulations of the Austrian business supervisory authority.

In the case at hand, the Hallein District Administrative Authority had authorised a third plant for a local business. The necessary forest-clearance and water-law approvals were issued through a single administrative procedure. However, adjoining owners and residents challenged the five-year construction phase involving extensive excavation, temporary storage of excavated material, and a mobile processing plant. The Regional Administrative Court largely dismissed their appeal because the Business Regulation Act applies to completed installations, while construction works falls within the building authority’s remit. 

Austrian Business Regulation Act applies from the start of construction

The VwGH rejected that interpretation. The wording of the first clause of Section 74(2) of the Business Regulation Act 1994 (Gewerbeordnung 1994, hereinafter GewO) makes construction itself, rather than merely the operation of a plant subject to authorisation. Moreover, persons are accorded the legal status of ‘neighbours’ where the construction of the plant could expose them to danger or nuisance, or endanger their property or other rights in rem. It follows that those persons must also be entitled to raise objections concerning emissions arising from the construction of the plant.

Respective jurisdictions of the building and trade regulatory authorities

The operator argued that building law falls within the legislative competence of Austria’s federal states. The Business Regulation Act, as federal legislation, could therefore not apply to the construction phase of a plant. The VwGH rejected that argument.

Under the case law of the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH), those competences do coexist. Austrian federal states regulate matters of building regulation, including measures to prevent construction-site activities from causing disturbance to the public. In exercising its legislative competence in respect of matters relating to trade and industry, federal lawmakers may regulate the construction of industrial or commercial installations from a different legal perspective, in order to protect neighbours against danger and nuisance. The construction phase is not excluded from that competence.

Furthermore, interpretation in conformity with the Austrian Constitution cannot override the clear wording of a statute. The Business Regulation Act expressly requires authorisation right from the beginning of the construction stage. Accordingly, the construction phase is subject to scrutiny by both the local building authority and within the competence of the federal states, each applying its own legal framework.

VwGH, Ra 2023/04/0262 to 0266-16 (1 September 2026)