According to the federal minister for sustainability and tourism, "strengthening e-mobility is an essential instrument for achieving these goals".1 As such, e-mobility is a core element of the Austrian climate and energy strategy.2
One of the main strategies to reduce air pollutants (eg, nitrogen dioxide) under the Air Immission Protection Act3 is the introduction of speed restrictions on motorways and expressways to minimise air pollutant emissions from diesel and petrol cars.4The speed limits introduced under the act are based on the legal authorisation of the federal state governors in Section 14 of the act.5These actions have been taken in order to comply with the thresholds defined in the EU Air Quality Directive.6
Arguably, it seems that electric vehicles – which do not emit carbon dioxide while in operation – should not be affected by these speed limits. However, the Constitutional Court disagrees.
Constitutional Court decision
In its latest decision on this matter, the Constitutional Court dealt with a complaint by an electric vehicle owner who had exceeded an Air Immission Protection Act speed limit.7 The driver claimed that his electric vehicle emitted no air pollutants and that the emission-dependent speed limit for the applicable section of the A1 West motorway8 imposed by the governor of Upper Austria's ordinance did not apply to him. He further claimed that the ordinance was unconstitutional, since it did not differentiate between individual vehicle categories and their respective emissions.
The Constitutional Court disagreed, holding that the state governor could issue an ordinance based on the Air Immission Protection Act that set a uniform speed limit for emissions, regardless of the vehicle type. The court based its decision on a 2011 ruling,9under which equal treatment of different types of vehicle was acceptable in view of the increased safety risk associated with different speed limits for different vehicle types. In addition, it should be assumed that different speed limits for passenger cars (eg, hybrid, natural gas and electric vehicles) would not only impair the flow of traffic and thus endanger road safety, but would also lead to an uneven speed curve. According to the Constitutional Court, this would at least partially lessen the emission-reducing effect of the speed limit.10
The electric vehicle owner's complaint was therefore rejected.
In response to the Constitutional Court's decision, it was necessary to create a legal exception for electric cars.
As part of the environmental package that recently came into force in Austria (the Aarhus Participation Act),11 electric vehicles were exempted from the speed requirements set out in the Air Immission Protection Act.12 As such, vehicles powered purely by electricity or hydrogen fuel cell technology are now exempt from the speed limits set for certain sections of motorways and expressways. In future, electric vehicles will be able to drive at 130 km/h in these zones. In Austria, this applies to a total of 440km of road.
The newly added exception to the Air Immission Protection Act for electric cars applies only if the relevant section of motorway or expressway is marked with a sign indicating the exception. The electric car must also have special licence plates, which features green lettering on a white background.
From a technical standpoint, it is still questionable whether electric cars can drive longer distances at 130km/h. Thus, the welcome legal exception will likely be of greater importance in future.
In this way, the federal government has created the legal framework to enable the federal states, which are responsible for measures under the Air Immission Protection Act, to implement these exceptions. Whether all federal states will introduce an exception to the act's speed limits for electric cars is still unclear. It remains to be seen whether the governors will apply the exception. According to early statements, some federal states do not wish to do so.13
To achieve the climate targets and reduce air pollution, further incentives for participation in the e-mobility offensive are being discussed (eg, opening bus lanes and promoting free parking for electric cars).14
This article first appeared on International Law Office.
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(2) https://mission2030.info/wp-content/uploads/2018/10/Klima-Energiestrategie.pdf; Lighthouse 3: E-Mobility Offensive, Page 67ff.
(3) Published in Federal Law Gazette I 1997/115, as amended.
(4) For further information on strategic measurement programmes under the Air Immission Protection Act, please see "Right to clean air – latest developments").
(5) According to this, the provincial governors can set speed limits in their provinces for certain sections of the high-level road network (motorways and expressways), which are necessary due to the local, topographical, meteorological and air pollutant-relevant conditions for the prevention of the exceedance of thresholds for air pollutants.
(6) Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, 2008 OJ L 152/1.
(7) VfGH 23 February 2017, E 70/2017-10; the complainant had driven at 115 km/h instead of the permitted 100 km/h. Although the complainant only received an admonition, he nevertheless took legal action.
(8) Legal Gazette of Upper Austria LGBl Nr 2008/101, latest version LGBl Nr 2015/3.
(9) VfGH 26 September 2011, B165/11.
(10) VfGH 26 September 2011, B165/11, marginal digit 2.5.
(11) For further information please see "Parliament adopts comprehensive environmental package".
(12) This was done by means of a change in the plenum of the National Council against the original draft. See www.parlament.gv.at/PAKT/VHG/BR/I-BR/I-BR_10031/fname_717210.pdf, Article 2, Section 8.
(13) For example Tyrol: www.tt.com/politik/landespolitik/14876812/der-lufthunderter-fuer-elektro-autos-faellt-im-jahr-2019.