The legal opinion of the law firm KWR Karasek Wietrzyk Rechtsanwälte GmbH expressly contradicts the arguments of the Climate Ministry. For example, the Federal Roads Act does oblige the construction of a road and is not just an “authorization”, as the minister said: “This claim is not tenable.” The report refers to a decision of the Administrative Court (VwGH) from 1990 regarding the Phyrnautobahn. According to this, the federal highway administration may not delay the construction of roads expressly provided for in the law. Road projects are to be implemented as soon as possible.
The Federal Roads Act contains the express legal mandate to build the S1. This is a requirement for the supervisory board of Asfinag (Autobahn and Schnellstraßen-Finanz-Aktiengesellschaft). This is not a matter of corporate discretion. In a broadcast, the Chamber therefore recommends that the Supervisory Board avert damage to the economy and people. The economy lost at least 12.7 billion euros in added value. “That is at least a third of the costs incurred so far for the pandemic,” says Ruck.
The Supervisory Board should also consider this in its own interest. According to the legal opinion, the Asfinag supervisory board members are liable “if they agree to a construction program that does not or no longer contain parts of the road that are stipulated in the Federal Roads Act. This is the case with the S1 including the Lobau tunnel, ”emphasizes Walter Ruck.
Asfinag’s construction program must be approved by the Supervisory Board. Minister Gewessler did not wait for Asfinag’s decisions at the Lobau tunnel, but reversed the specified sequence and anticipated the results by means of an announcement on December 1st. “That corresponds to an instruction. This, in turn, is unlawful because the board of directors and the supervisory board of a stock corporation are not subject to instructions by law, ”argues the chamber.
“Asfinag’s board of directors and supervisory board are well advised to move within the legal framework and thus avert damage to the stock corporation, the business location and the people in the eastern region,” said Ruck in conclusion.