CASE

Residents of a town complain about the noise from a highway nearby. Research shows that the actual noise level severely exceeds the maximum permitted noise level. The state did not take measures to reduce the level of noise. Residents have not sustained personal injury as a consequence of the exceeding of the maximum level of noise.

Residents do complain that they lost enjoyment of living in the area. Will they receive compensation from the state and, if so, for what losses? And is it possible for them to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.

DISCUSSIONS

AUSTRIA

Matthias Dangl and Georg E Kodek

Operative Rules

If emissions (such as noise) are caused by a duly licensed facility, residents are in principle entitled to demand compensation for damages (§ 364a ACC). However, the Austrian Supreme Court ruled that the government is not liable for damages caused by traffic on a highway under this provision because the usage of the highway is a matter of public law. Similarly, the Austrian Supreme Court has held that less stringent standards apply in the case of operations in the public interest such as a tram. Apart from that, there is no compensation for nonmaterial damages (lost enjoyment of living in the area) under § 364a ACC in general.

Therefore, a collective action, such as the ‘Austrian model of group litigation’ , is unlikely to be successful.

Legal Formants

According to a recent decision of the Austrian Supreme Court, official liability would not be a suitable basis for a claim either. It was ruled that the Official Liability Act (Amtshaft ungsgesetz) offers no basis for the request that the state, as the road operator, should take certain measures (such as speed controls and the construction of noise protection walls) in order to reduce the noise emissions from the road to the plaintiff’s neighbouring property.

BELGIUM

Artuur Keukeleire, Larissa Vanhooff and Britt Weyts

Operative Rules

Victims can rely on four different sources of compensation for noise pollution: (1) general tort law; (2) property law; (3) protection of privacy; and (4) administrative liability. However, the actual success rate of these actions is dubious.