There are two laws which primarily govern the Austrian response to oil supply shortages in emergency situations: first, the more general 2012 Energy Intervention Powers Act (EIPA) and second, the more specific 2012 Oil Stockholding Act (OSA). The EIPA provides for a general legal framework aimed at the protection of Austria’s electricity supply. Beyond provisions governing energy supplied by solid and liquid energy products (Part II, articles 7-13 EIPA), it also includes provisions concerning electricity (Part III, articles 14-25 EIPA) and natural gas (Part IV, articles 26-35 EIPA) supply.
The OSA implements the European Union’s Directive 2009/119/EC and lays out a specific legal framework concerning the protection of Austria’s energy supply by stockholding oil and other petroleum products.
According to article 4(1)(1) of Austria’s EIPA, the provisions of the EIPA can be utilised in order to “avert imminent or overcome actual disruptions of Austrian energy supplies insofar as these...do not represent seasonal shortages...and cannot be averted or overcome at all, in a timely manner or at reasonable cost by means of market-based measures” irrespective of whether a given disruption affects “only parts of federal territory” (article 4(3) EIPA). Article 4(1)(2) also provides that EIPA measures can be taken to implement “emergency measures pursuant to decisions by governing bodies of international organisation” in discharge of obligations under international law.
The Austrian OSA does not itself specify under which conditions stocks held by stock holders may be utilised.
For the purposes of the EIPA, it is the Federal Minister for Sustainability and Tourism who possesses the competence to take measures under the EIPA (article 5(1) EIPA). Orders of the Federal Minister must be preceded by the assent of the Main Committee of the National Council. However, in case of urgency, orders may be enacted simultaneously with an application for the Main Committee’s assent. Orders the Main Committee does not assent to or does not assent to within one week must nonetheless be revoked (article 5(2) EIPA). Orders based on the EIPA must be published (article 5(4) EIPA), they must be reported to the National Council by the Federal Minister for Sustainability and Tourism (article 5(5) EIPA) and they may remain in force no longer than 6 months. In the case of an energy supply disruption which has already come about, an extension of up to six months is possible, subject to the assent of the Main Committee of the National Council. Upon the cessation of the circumstances giving rise to the orders, the latter shall be revoked forthwith. (article 5(3) EIPA).
The Federal Ministry for Sustainability and Tourism is advised by the Energy Intervention Council (article 36(1) EIPA) which must be consulted before measures based on the EIPA are taken. The Energy Intervention Council consists inter alia of representatives of numerous federal ministries, the Federal Chancellery, of Austrian industrial chambers, trade unions, political parties represented in the Main Committee of the National Council and energy experts (article 36(2) EIPA).
Austria’s Central Stockholding Entity is the Erdöl-Lagergesellschaft m.b.H. (ELG). The OSA stipulates that the ELG is an incorporated company (article 9(1)(1) OSA). Under the provisions of the OSA, the ELG itself is merely a residual third-party stockholder (article 9(1) OSA). While the ELG is entitled to assume stockholding obligations for compulsory stockholders (see below), the ELG itself is merely obliged to hold such quantities of emergency stock which are not otherwise held by compulsory stockholders (article 9(7) OSA).
Compulsory stockholders under the OSA are importers of crude oil, petroleum products, biofuels or feedstocks directly used to produce biofuel (article 4(1) OSA). Importers of such fuels and not the ELG are the primary addressees of the OSA and must hold specified quantities of crude oil, petroleum products, biofuels or biofuel feedstocks directly used to produce biofuels (article 4(1) OSA). Apart from holding the compulsory emergency stocks themselves (article 7(1)(1) OSA), compulsory stockholders may hold stocks jointly with other compulsory stockholders (article 7(1)(2) OSA), they may have recourse to a private law contact obliging the counterpart to hold stocks (article 7(1)(3) OSA) or by delegating the stockholding obligation to a third party stockholder or the ELG (articles 7(1)(4), 8, 9(1)OSA).
Finally, the OSA also obliges operators of fossil fuel fired power stations to maintain sufficient levels of stock for a certain period of time (article 28(1) OSA).
According to article 5 OSA, compulsory stockholders must hold 25% of their previous year’s imports of crude oil, individual petroleum products, biofuels and feedstocks used directly to produce biofuels as emergency reserves in Austria. The level of 25% can vary in accordance with particular circumstances (e.g.: replenishing exhausted reserves after an emergency (article 5(3) OSA).
With respect to the ELG, the Federal Ministry for Sustainability and Tourism informs the ELG of the quantities of emergency stock that must be held(article 9(7) OSA).
With respect to power stations, operators of fossil fuel fired power stations shall maintain stocks equal to the amount required for the continued supply of electrical energy at maximum capacity for 30 days (article 28(1) OSA).
Availability of stocks
According to article 14(1) OSA, all stocks must be stored in such a manner that they are available at all times. Storage facilities must be equipped with vehicle loading systems (article 13(2) OSA) and storage obligations cannot be discharged by oil stored in road tankers, oil tank wagons, filling stations or pipeline systems (article 14(3) OSA). Stocks that are, for technical reasons, unavailable even in severe emergency situations, cannot be credited towards compulsory emergency reserves (article 14(3) OSA).
Article 9(1)(3) OSA stipulates that the ELG shall consider regional supply considerations in its choice of locations for storage facilities. Stocks held by power station operators must be located on the site of the power station (article 28(2)(1) OSA).
If it has been determined that the provisions of the EIPA have been triggered, the EIPA authorises the Minister for Sustainability and Tourism to enact orders creating “rights of disposal, access and requisition” (article 7(2)(1) EIPA), “regulations governing production, transportation, storage, distribution, sale and purchase, import restrictions and export obligations” (article 7(2)(2) EIPA), “transport restrictions” (article 7(2)(3) EIPA); “reporting duties” (article 7(2)(4) EIPA) and “changes in required specifications” (article 7(2)(5) EIPA).
Property rights regarding energy products with respect to which EIPA measures are enacted are extinguished to the extent that they conflict with the objects of the measures taken (article 7(2) EIPA) unless such rights relate to energy products held for the purposes of safeguarding public energy supplies (article 7(3) EIPA), for military purposes (article 7(5) EIPA), or they are held by final consumers to meet their personal needs or the needs of their own business (article 7(5) EIPA).
Moreover, according to article 8 EIPA, the regulation of rights of disposal, access and requisition may also extend to means of transport, storage facilities and distribution systems for energy products if this is found to be essential. Further, regulations on production and use may provide for restricted sale, purchase and use of oil for specific time periods, locations or quantities, for purposes of satisfying the needs of priority supplies or to comply with international legal obligations (article 9(1) EIPA).
Neither the EIPA, nor the OSA, contain detailed provisions governing the possibility of releasing stocks in times of emergency. The EIPA merely acknowledges that EIPA measures may pertain to rights of disposal, access and requisition and may concern the production, transportation, storage, sale and purchase of fuel (article 7(2)(1-2) EIPA).
The OSA merely refers to the possibility of reducing mandatory reserve levels with respect to stocks held by power station operators in order to prevent impending or to overcome existing electricity supply difficulties related to particular power stations (article 28(5-6) OSA).
According to article 10(1)(1) EIPA, EIPA measures can be used to prohibit the use of all or specific types of road vehicles, powered water craft and aircraft for specific time periods in the entirety or in parts of Austria. Further, the EIPA can be used to prohibit exceeding certain speed limits with respect to all or certain classes of vehicles on all or certain types of roads and to all or certain classes of powered water craft on all or certain types of water (article 10(1)(2) EIPA). The use of vehicles may also be limited to certain purposes or events (article 10(1)(3) EIPA). Exceptions to these restrictive measures are available in certain cases available when necessary to protect significant economic, social or cultural interests, or the public interest (article 10(2) EIPA).
According to article 4(4) EIPA, emergency measures may not remain in force longer than necessary to “avert or overcome supply disruptions, or to fulfil obligations under international law”. Further, property rights and the freedom to practice a trade or occupation are permissible only if the objectives of averting or overcoming supply disruptions or to comply with international law cannot otherwise be achieved (article 4(4) EIPA).
Compensation for pecuniary losses as a result of measures relating to “rights of disposal, access and requisition” (article 7(2)(1) EIPA) and “regulations governing production, transportation, storage, distribution, sale and purchase, import restrictions and export obligations” (article 7(2)(2) EIPA) may be payable (13(1) EIPA).
Austria’s emergency regime is monitored and enforced on the domestic, regional and international level. Each will be considered in turn.
Entities that produce, treat, process, consume, store or otherwise hold, or trade energy products can be ordered to report inter alia their requirements, production, treatment, processing and information on their operating facilities as is necessary for the enforcement of the EIPA (article 11(1) EIPA). The Federal Minister for Sustainability and Tourism may inspect such reports or order their preparation when respective entities have failed to do so (article 11(2) EIPA).
Further, the ELG is obliged to publish regular reports concerning its activities and stockholding capacity (article 9(1)(11) OSA). Similarly, compulsory stockholders must annually notify the Federal Ministry for Sustainability and Tourism concerning their imports during the previous year (article 15(1) OSA) and concerning their annual storage capacities and locations (article 17 OSA). On a monthly basis, they must notify the Ministry concerning their monthly imports (article 15(2) OSA) and they must report the level of their emergency reserves (article 16 OSA). Similar provisions exist with respect to operators of fossil fuel fired power stations (article 28(7-8) OSA).
Additionally, compulsory stockholders shall maintain records indicating the levels of their overall stocks and stock levels must be checked at least once a month (article 18 OSA).
Provisions enacted pursuant to EIPA are primarily implemented by the Federal Minister for Sustainability and Tourism, but also by various specialised federal and local agencies (article 7(6) EIPA) depending on the nature of a given violation (article 43 EIPA and article 31 OSA). Relevant inspection bodies of the state must be granted access to the operating and storage facilities of any entity subject to reporting duties (specified in article 11(1) EIPA) and to premises and records knowledge of which is essential for the implementation of EIPA measures (article 11(3) EIPA). Article 23 OSA provides for similar powers concerning inter alia the verification of the levels of compulsory emergency reserves.
Specifically, with respect to Austria’s fulfilment of international obligations, the Federal Ministry may direct that such surveys relating to oil companies (as defined by article 26 IEP) are carried out as are necessary to ensure that Austria complies with its international obligations (article 19(1) OSA).
The EIPA envisions that any person who commits, or attempts to commit (article 39(2) EIPA) an offence under the EIPA not constituting a criminal offence shall be punished by the district administrative authority by a fine of up to EUR 72 660 if such a person fails to comply with prescriptions imposed pursuant to article 7 EIPA in so far as such conduct is not related to the use of a vehicle, reporting duties, inspections or speed limits (article 39(1)(1) EIPA). A fine of up to EUR 2 180 is payable by persons contravening orders under article 7 EIPA relating to contraventions of orders concerning the use of vehicles, reporting duties or inspections (article 39(1)(2)(a-c) EIPA). A fine of up to EUR 726 is payable for exceeding speed limits by at least 30km/h imposed under article 10(1)(2) of the EIPA (article 39(1)(3) EIPA). In case a fine cannot be collected prison terms ranging from six weeks to two weeks are available (article 39(3) EIPA).
Persons contravening their stockholding obligations imposed pursuant to article 4 OSA may be fined up to EUR 58 120 (or six months’ imprisonment) (article 24(1) OSA). Negligent offences against OSA stockholding obligations attract a fine of up to EUR 29 060 (or three months’ imprisonment) (article 24(1) OSA). Additional fines of up to EUR 2180 are available for various less serious offences (article 25(1-12) OSA). Power station operators contravening their OSA obligations incur fines up to EUR 7000 (article 28 (9-10) OSA).
In their efforts to enforce the provisions of the OSA, relevant public authorities can enlist the services of the Federal Police (article 27 OSA).
As a Member State of the European Union, Council Directive 2009/119/EC obliges Austria to maintain a minimum volume of emergency oil stocks corresponding to 90 days of average daily net imports or 61 days of average daily inland consumption, whichever of the two quantities is greater. The Directive also imposes strict requirements concerning the composition and location of the emergency oil stocks, so as to guarantee their availability and accessibility in case of need, among other provisions.
Austria’s compliance with the provisions of the directive is monitored and enforced by the European Commission. If a Member State is deemed not to be compliant with the EU Directive, the Commission might decide to initiate an infringement procedure, which might ultimately lead to refer the case to the Court of Justice of the European Union (articles 258-259, Treaty on the Functioning of the European Union).
As a Member of the IEA, Austria is obliged, pursuant to article 2 of the Agreement on an International Energy Programme (IEP), to maintain oil reserves equal to 90 days of net imports of the previous year. IEA Members are obliged to submit information concerning their emergency measures to the IEA secretariat (article 32 IEP) on a continuous basis and the IEA monitors Member countries’ compliance with the IEP.