Schoenherr has achieved an important victory on behalf of Vienna International Airport (VIE) and the province of Lower Austria in a case regarding the construction of a third runway at the airport.
Schoenherr Partner Christian Schmelz and his team succeeded in persuading the Austrian Constitutional Court to overturn the February 2017 decision of the Federal Administrative Court rejecting a permit application for the construction of the third runway. The Federal Administrative Court must now reach a new decision in this matter.
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. Acting on behalf of VIE, Schoenherr lodged a complaint with the Constitutional Court as well as an extraordinary appeal with the Higher Administrative Court.
On June 29, 2017, Constitutional Court President Gerhart Holzinger announced that the decision of the Federal Administrative Court was repealed in line with the points brought up by Schoenherr in its complaint.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 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 a third runway. The Constitutional Court held that it is the aircraft operators and not the airports that are responsible for climate protection during air transportation.
"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," said Christian Schmelz. "It is also relevant to Austria as a business hub. 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 team working with Schmelz on behalf of the airport included Karasek Wietrzyk Rechtsanwalte Partner Bernhard Raschauer and Wolfgang Koeberl, Head of Legal of Vienna International Airport.
