The Government Bill on the EABG—Austria’s Path to a Sustainable Energy Supply?

Good things come to those who wait…

As early as 25 years ago, the European Union first addressed the promotion of electricity generation from renewable energy sources (RES) in Directive 2001/77/EC. EU Directive 2018/2001 (RED II—RED stands for Renewable Energy Directive) in 2018, an EU-wide binding renewable energy expansion target of 32% by 2030 was set, which was revised as early as 2023 as part of the European Green Deal and increased to 42.5% under EU Directive 2023/2413 (RED III). In this way, the EU legislature required member states to establish domestic measures and pathways to achieve this target, which was ambitious given that renewable energy accounted for just over 22% of the EU-27’s gross energy consumption in 2020. Key elements of RED III include streamlined permitting procedures, maximum processing deadlines, the designation of priority areas, and the definition of overriding public interest.

Key Aspects of Implementation

In Austria, when transposing EU law into national law, the federal principle—under which the Federal Constitutional Law (B-VG) assigns different areas of jurisdiction to the federal government and the states—must be observed. The matters regulated by the EABG fall partly under federal jurisdiction for both legislation and enforcement, partly under federal jurisdiction for legislation and state jurisdiction for enforcement, partly under federal jurisdiction for framework legislation, and partly under the exclusive jurisdiction of the states. For example, nature conservation law, regional planning law, and building law fall within the purview of the states, which is why states such as Carinthia, Salzburg, and Burgenland enacted corresponding state laws, while other states amended existing laws. In this way, legal foundations were established, for example, to designate priority areas for renewable energy.

Section 1 of the EABG contains a so-called “clause on the scope of authority” as a constitutional provision, which, with regard to the scope of application set forth in Section 2, the construction, modification, and operation of energy facilities, as well as the planning and zoning of energy facilities and other infrastructure projects, and enables direct enforcement by federal authorities. On this basis, the procedural and substantive requirements for planning permits for energy facilities are to be regulated by the federal government. Instead of approvals from various (federal and state) authorities, following a comprehensive review in accordance with the “one-stop shop” principle, a single approval under the EABG—in conjunction with the applicable substantive laws (both federal and state)—shall suffice, thereby accelerating the process through a “one-stop shop” approach. According to § 6 EABG, jurisdiction for this so-called fully centralized permitting procedure lies with the state governor, who may delegate this jurisdiction to the district administrative authority. In principle, therefore, a single authority is to make the decision in a single proceeding, and the project applicant is to receive a final decision (§ 26 EABG). 

For certain energy facilities located in acceleration zones or route corridors, the EABG provides for a simplified screening procedure (Section 9 et seq.), which, in the event of a positive assessment, replaces an administrative decision based on environmental considerations (deemed approval), meaning that no separate environmental impact assessment, nature impact assessment, or species protection review is required. Section 13 of the EABG also stipulates that certain small energy facilities are not subject to a permit requirement, but only to a notification requirement. 

Other Changes

For the purposes of digitization, the Legal Information System (RIS) is designated as the “central electronic publication platform” pursuant to Section 7 of the EABG; the law does not provide for a parallel analog publication; rather, the publication takes effect as soon as the data is visible in the RIS and on the authority’s website. Likewise, an oral hearing pursuant to Section 23 of the EABG may be held partially (hybrid) or entirely online.

With regard to the requirements for approval, Section 25 of the EABG stipulates that, in the event of a balancing of interests, an “overriding public interest” in the energy facility is to be presumed (para. 2) and that “any protected interests relating to the landscape, the townscape, the character of the landscape, and the recreational value of the landscape are not to be taken into account” (para. 4). This is also a relevant provision in light of the Carinthian referendum of January 2025, which explicitly referred to the protection of the landscape and which the Constitutional Court later ruled to be unlawful.

In the interest of the municipalities, Section 57 of the EABG provides a legal basis for the payments already being made by project operators for newly constructed photovoltaic and wind power plants. This is intended to offer municipalities—which are often strapped for cash—a financial incentive to pursue such projects. Section 57a of the EABG grants municipalities the right to make proposals to the state government regarding the designation of priority areas.

… will it finally turn out well?

The government bill is currently under parliamentary review and, following a favorable vote in the relevant National Council committee (with the governing coalition voting in favor and the opposition voting against—the opposition arguing that the bill either goes too far or not far enough)—it is awaiting debate on the floor of the National Council, where constitutional approval is required; in the absence of a constitutional majority for the government, political compromises may be necessary to secure this approval. Whether the new law will succeed in bringing us significantly closer to the “magic square” of energy supply resilience, climate neutrality, the removal of bureaucratic hurdles, and the strengthening of the economy and competition—and whether Austria will achieve the EU climate target—will become clear by 2030. This leaves about 3.5 years to prove that squaring the circle is possible.