Environmental Enforcement
in the Flemish Region (Belgium)
Prof. Dr. Michael G. Faure LL.M.
Chairperson Flemish High Council for the Enforcement of
Environmental Policy
www.vhrm.be
1
Structure
1.
2.
3.
4.
5.
6.
7.
8.
9.
Introduction
Historical background
Important steps in the nineties
Remaining problems: empirics
A new environmental law enforcement in the
Flemish Region
Administrative enforcement
Criminal law provisions
New institutions
Concluding remarks
www.vhrm.be
2
1. Introduction
• Environmental enforcement in the Flemish
Region has been a source of worry
• Silent revolution on 1st May 2008
• Interesting new integrated enforcement
model, combining administrative and
criminal law enforcement
• Of course, experience very “fresh”, still too
young for final judgment
www.vhrm.be
3
2. Historical background
• Environmental enforcement started with
one prosecutor in the 1980s
• Clean-up Antwerp harbour
• But results were (somewhat)
disappointing, many acquittals:
– No criminal liability of legal entities
– Legislative framework not sufficient/unclear
– No specialized prosecutors or magistrates
– But: behavioural change with industry
www.vhrm.be
4
3. Important steps in the nineties
• Interuniversity commission for the revision of
environmental law in the Flemish Region
(Bocken)
• Draft decree environmental policy 1995
• Lead to a modernization of Flemish
environmental law and policy: soil sanitation
decree etc.
• Already earlier: entry into force of new
environmental permitting decree (September
1991)
www.vhrm.be
5
3. Important steps in the nineties
• Important: 4 May 1999: introduction
criminal liability of legal entities
– Necessary for law enforcement
– But also for industry
– Still, perhaps not perfect
• Now: increasing specialization of public
prosecutors and magistrates (but strong
regional differences)
www.vhrm.be
6
4. Remaining problems: empirics
• Pollak, Billiet and Rousseau (textile
industry 2005):
• Only in 20-30 % of inspections:
enforcement (notice of violation,
consultation or warning)
• Probability of being controlled: once in ten
years
• But: targeting!
www.vhrm.be
7
4. Remaining problems: empirics
• Billiet-Rousseau: average fines (Ghent):
– For legal entities:
• € 14,569 in first instance
• € 10,733 in appeal
– For natural persons:
• € 3,787 in first instance
• € 7,061 in appeal
– Average expected sanction (p x S) low:
• € 87.7
• € 167
• € 181
www.vhrm.be
8
4. Remaining problems: empirics
• Yearly reports of environmental inspectorate
confirm this:
• Prosecution before courts only 10 %
• Dismissals on average 62 % (however, these
contain also technical dismissals)
• Results:
– Probability of control statistically very low
– Average criminal fine (and resulting expected
sanction) low
– Large differences between provinces
www.vhrm.be
9
4. Remaining problems: empirics
• Dismissals high
• As such, this is understandable (targeting
by prosecutors, given limited budget)
• However, some cases, worth of being
prosecuted are dismissed (because
lacking alternative for criminal law)
www.vhrm.be
10
5. A new environmental law
enforcement in the Flemish Region
• Decree of 21 December 2007
• Interuniversity commission as basis
(started in 1990)
• Core points:
– Harmonization of inspection rights
– Harmonization of environmental criminal law
– New relationship between criminal and
administrative law
www.vhrm.be
11
5. A new environmental law
enforcement in the Flemish Region
– Creation of new institutions
– Flemish High Council for Environmental Law
Enforcement (coordinating tasks)
– Environmental court (administrative court)
www.vhrm.be
12
6. Administrative enforcement
6.1 Administrative law enforcement consists
of:
• Administrative measures
Or
• Administrative fines
+ (in addition)
• Administrative removal of illegal gains
www.vhrm.be
13
6. Administrative enforcement
6.2. Administrative measures or
administrative fines: only for facts that
violate legal provisions (principle of
legality)
• And in proportion to the facts to which the
measure of fine is a reaction
(proportionality principle)
www.vhrm.be
14
6. Administrative enforcement
6.3. Administrative measure: prevention or
restauration (for example an
injunction/order to stop certain works,
partial or total shutdown of an enterprise,
aiming at ending the environmental
offence or crime)
• Not revolutionary
www.vhrm.be
15
6. Administrative enforcement
6.4. Environmental fine: the duty imposed
upon the perpetrator to pay a specific sum
of money
+ inflation correction is applicable (x 5.5)
+ removal of illegal gain
6.5 Exclusive administrative fine: foreign
environmental offence max. € 50,000
Offences are those established on a list by
the Flemish government
www.vhrm.be
16
6. Administrative enforcement
• Alternative administrative fine: for
environmental crimes: max. € 250,000
6.6 Imposition of the exclusive
administrative fine
• By the regional administrative authority
after a notice of violation
• Against the decision of the regional
authority appeal is possible with the
environmental court (not suspensive)
www.vhrm.be
17
6. Administrative enforcement
6.7. Imposition of the alternative
administrative fine
• After the establishment of an
environmental crime: inspector sends a
notice of violation to the prosecutor
• Inspector requests the prosecutor to
indicate whether he wants to prosecute
the crime or not
www.vhrm.be
18
6. Administrative enforcement
• Prosecutor has 180 days + in addition max. 180
days for a motivated decision
• In this period: imposition of administrative fine
impossible
• When prosecutor decides for criminal
prosecution: imposition administrative fine
impossible
• If the prosecutor fails to decide: administrative
fine impossible! (contrary to Walloon Region)
www.vhrm.be
19
6. Administrative enforcement
• When the prosecutor decides that no
prosecution will take place: right to
prosecute fails
• Alternative administrative fine: again,
administrative procedure, imposition by
regional authority and
• Possibility of appeal to environmental
court (not suspensive)
www.vhrm.be
20
7. Criminal law provisions
7.1. General provision 16.6.1.
• Any intentional or negligent violation of the
law: one month to two years and/or € 100 € 250,000
• But: not applicable to environmental
offences: there, only exclusive
administrative fine!
www.vhrm.be
21
7. Criminal law provisions
7.2. Intentional acts against administrative
measures, fines or other measures:
one month – one year and/or € 100 –
€ 100,000
7.3. 16.6.2.: intentional and unlawful
emission: one month – five years and/or
€ 100 - € 500,000
• In case of negligence: one month – three
years and/or € 100 - € 350,000
www.vhrm.be
22
7. Criminal law provisions
7.4. Intentional and unlawful disposal of
waste: one month – five years and/or
€ 100 - € 500,000
• In case of negligence: one month/three
years and/or € 100 - € 350,000
7.5. As safety measure, the judge can
impose the prohibition to run the
installation that constituted the basis for
the violation
www.vhrm.be
23
7. Criminal law provisions
7.6. Weakness: no autonomous
environmental crime, but administrative
dependence (contrary to the proposals of
interuniversity commission)
Hence: only crime and prosecution possible
when administrative duties are violated
(weakness)
www.vhrm.be
24
8. New institutions
8.1. Flemish High Council for the Enforcement of
Environmental Law
• Has a permanent secretariat of three persons
• Chair person, vice person, which form with
secretariat the bureau (daily management)
• Many members, representative of all
environmental enforcement organizations
(prosecutors, police, local and provincial
authorities, waste authority, regional entity etc.)
+ replacement
www.vhrm.be
25
8. New institutions
• General meetings with entire committee
every month
• Specific subcommittees to make
agreements on specific points e.g.
– How to establish a crime?
– Who visits which type of entities?
– Coordination between administrative and
criminal law enforcement
– Information exchange
www.vhrm.be
26
8. New institutions
– Data collection
– New developments e.g. better regulation, smart
environmental law enforcement
• Task: determine core lines and priorities for the
environmental enforcement policy in Flemish
Region
• Publish an environmental law enforcement
programme (for the coming year)
• Publish an environmental law enforcement
report (on the past year)
www.vhrm.be
27
8. New institutions
• In general, taking care of coordination of
environmental law enforcement in the
Flemish Region
www.vhrm.be
28
8. New institutions
8.2. Environmental Court
• It is an administrative court
• Important task: judges take decisions
(judgements) on appeal against decisions
of the regional authority
• Six members + replacements
www.vhrm.be
29
8. New institutions
• Chair person and vice chair are lawyers,
some other members non-lawyers
• Court is independent from government
• Has a permanent secretary
www.vhrm.be
30
9. Concluding remarks
9.1. New decree important revolution:
• General introduction of administrative law
enforcement
• Shift of emphasis towards administrative
enforcement
• Important harmonization of environmental
crime
• Important possibilities for coordination
administrative-criminal law, but also
www.vhrm.be
31
9. Concluding remarks
• Possibilities to coordinate environmental
enforcement policy generally via High
Council
9.2. Evaluation: on paper looks positive
• Introduction administrative law
enforcement can increase effectiveness
law enforcement
• Advantage: criminal law can focus on
important issues
www.vhrm.be
32
9. Concluding remarks
• Of course, effectiveness will eventually
depend upon practice
• Important coordination task for High
Council
• Notwithstanding many uncertainties, this
important revision can potentially lead to:
www.vhrm.be
33
9. Concluding remarks
• Change improved environmental law
enforcement in the Flemish Region!
www.vhrm.be
34