Nature restoration update – more flexibility in the system of compensatory measures

Authors: Mario Laimgruber, Maurizio-Damiano Stoisser

Following lengthy negotiations at the EU level and extensive debate in Austria surrounding the approval granted by the then Federal Minister in the Council, the Nature Restoration Regulation finally came into force a little less than a year ago. Its stated aim is to contribute to the long-term and sustainable recovery of ecosystems, support climate protection, and improve food security in the EU through area-based (restoration) measures, improvement requirements, and deterioration bans, among other things. In doing so, it aims to ensure coherence between these goals and other legal acts relevant to renewable energy and climate protection.

However, the specific contribution Austria will make toward achieving these goals – in particular, which measures will be implemented in which areas – cannot be gleaned from the regulation itself, but will largely be determined in the national Restoration Plan. This plan is currently being drawn up by a working group consisting of representatives from the federal government and the federal states and requires an enormous amount of research in a wide variety of specialist areas. Moreover, the fact that the Nature Restoration Regulation, as a European legal act, does not take into account the distribution of national competences entails a complex coordination effort within the state structure. In addition, the Nature Restoration Regulation obliges Member States to give the public – including all relevant stakeholders – the opportunity to participate in the development of the plan at an early stage and in an effective manner. All of this must take place within a very tight timeframe, as the drafts of the national Restoration Plans must be submitted to the Commission by September 1st, 2026.

As part of the “implementation” of the Nature Restoration Regulation – which is in fact directly applicable – Austria recently exercised the option granted to Member States (available until February 19th, 2025) to expand the geographical scope of a “restoration instrument” (deterioration ban) granted by the regulation by notifying the Commission. In doing so, Austria secured the opportunity to establish a more flexible system of compensatory measures for significant deterioration. The exercise of this flexibility was (initially) made without further justification. The specific manner of application and the system of compensatory measures will need to be explained (only) in the national Restoration Plan.

When it comes to the question of how the EU Nature Restoration Regulation will actually “play out” at the national level, only a general framework can currently be outlined based on the above. This understandably leads to uncertainty. In the agricultural sector, there have been fears, particularly in light of the rewetting of soils addressed in the regulation, that such measures could amount to an intervention in property ownership tantamount to expropriation. In the energy sector, the question arises as to how to deal with conflicts arising from the tension between the desired “restoration” and the simultaneously promoted expansion of renewable energy and the associated infrastructure – both at the national and European levels.

The concerns expressed by the agricultural sector have already been addressed by a clarification in the regulation itself, according to which “farmers and private landowners [… cannot] be required to rewet their land.” However, the question of how the Nature Restoration Regulation will affect agriculture cannot, of course, be reduced to this one explicitly regulated point.

With regard to the energy industry, it is worth noting that the legislative process for the Nature Restoration Regulation already took into account the interests of the (renewable) energy industry. This ultimately led to numerous privileges and a dedicated article in the regulation. This article grants the planning, construction, and operation of renewable energy generation facilities – as well as their network connection, the relevant grid itself, and storage facilities – the status of an “overriding public interest” as defined by law. It is also undeniable that the EU is pursuing an overarching strategy of interlinking climate and nature conservation legislation (European Green Deal). Accordingly, the regulation must aim to ensure coherence between its own objectives and other legal acts relevant to renewable energy and climate protection (including RED III and the Governance Regulation). Against this backdrop, the regulation also contains explicit words, namely “that the functioning of these [nationally designated acceleration areas], including the permitting procedures applicable in these renewables areas foreseen by Directive (EU) 2018/2001, as well as the functioning of grid projects that are necessary to integrate renewable energy into the electricity system and the respective permitting procedures, remain unchanged.” Naturally, this presupposes that the national legislator designates such acceleration areas.

Would you like to read more about the Nature Restoration Regulation? Xaver Meusburger and Thomas Baumgartner have already reported on the topic in RdU in an article titled “EU Nature Restoration Regulation: Milestone or Own Goal?“

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.