VfGH on Climate Protection: No Right to Heating Oil Ban

Sept 15, 2023 Benn-Ibler Rechtsanwälte

There is no subjective right to issue an ordinance banning the sale of fossil fuels and heating oil, the Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH) has confirmed. The environmental organisation GLOBAL 2000 was one of those who had asked to intervene.

Specifically, the complainants applied to the Federal Minister for Digitalisation and Business Location (Bundesminister für Digitalisierung und Wirtschaftsstandort, hereinafter BMDW) to issue an ordinance under Section 69(1) of the Austrian Trade, Commerce and Industry Act 1994 (Gewerbeordnung 1994, hereinafter GewO 1994) prohibiting the sale of fossil fuels and heating oil as of a specified future date. The BMDW rejected this request because he did not consider himself to have the authority to do so. In the BMDW’s view, the ordinance in question was beyond the scope of a specific regulatory and safety function of the trade police.

The Vienna Administrative Court (Verwaltungsgericht Wien) dismissed the complaint as unfounded.

This decision was confirmed by the VfGH, as follows:

Contrary to the complainants’ view, no subjective right to ban the sale of fossil fuels can be derived from the EU Burden Sharing Regulation which sets binding greenhouse gas emission reduction targets for Member States. This is because the Regulation is addressed only to the Member States and does not confer any direct rights on EU citizens.

It is also impossible to infer any subjective right to the issuance of the requested regulation out of fundamental rights obligations. Admittedly, Art. 2 and Art. 8 of the European Convention do impose positive protection obligations on the State in respect of serious environmental damage. However, such an obligation can only be assumed if the impairment is of a certain degree of seriousness. Moreover, lawmakers have a wide scope for legislative policy-making. It is also not possible to claim that certain measures exist. These are left to legislation (or the issuers of regulations).

VfGH E 1517/2022-14 (27 June 2023)