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Environmental Enforcement in the Flemish Region (Belgium)

Prof. Dr. Michael G. Faure LL.M.Chairperson Flemish High Council for the

Enforcement of Environmental Policy

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Structure1. Introduction2. Historical background3. Important steps in the nineties4. Remaining problems: empirics5. A new environmental law enforcement in the

Flemish Region 6. Administrative enforcement7. Criminal law provisions8. New institutions9. Concluding remarks

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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

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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

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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)

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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)

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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!

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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

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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

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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)

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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

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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)

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6. Administrative enforcement

6.1 Administrative law enforcement consists of:

• Administrative measures

Or

• Administrative fines

+ (in addition)

• Administrative removal of illegal gains

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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)

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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

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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 gain6.5 Exclusive administrative fine: foreign

environmental offence max. € 50,000Offences are those established on a list by

the Flemish government

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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)

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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

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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)

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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)

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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!

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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

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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

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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)

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8. New institutions8.1. 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

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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

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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)

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8. New institutions

• In general, taking care of coordination of environmental law enforcement in the Flemish Region

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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

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8. New institutions

• Chair person and vice chair are lawyers, some other members non-lawyers

• Court is independent from government

• Has a permanent secretary

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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

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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

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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:

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9. Concluding remarks

• Change improved environmental law enforcement in the Flemish Region!