1. www.vhrm.be1 Environmental Enforcement in the Flemish Region (Belgium) Prof. Dr. Michael G. Faure LL.M. Chairperson Flemish High Council for the Enforcement of Environmental Policy

2. www.vhrm.be2 Structure 1.Introduction 2.Historical background 3.Important steps in the nineties 4.Remaining problems: empirics 5.A new environmental law enforcement in the Flemish Region 6.Administrative enforcement 7.Criminal law provisions 8.New institutions 9.Concluding remarks

3. www.vhrm.be3 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

4. www.vhrm.be4 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

5. www.vhrm.be5 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)

6. www.vhrm.be6 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)

7. www.vhrm.be7 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!

8. www.vhrm.be8 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

9. www.vhrm.be9 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

10. www.vhrm.be10 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)

11. www.vhrm.be11 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

12. www.vhrm.be12 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)

13. www.vhrm.be13 6. Administrative enforcement 6.1 Administrative law enforcement consists of: Administrative measures Or Administrative fines + (in addition) Administrative removal of illegal gains

14. www.vhrm.be14 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)

15. www.vhrm.be15 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

16. www.vhrm.be16 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

17. www.vhrm.be17 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)

18. www.vhrm.be18 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

19. www.vhrm.be19 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)

20. www.vhrm.be20 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)

21. www.vhrm.be21 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!

22. www.vhrm.be22 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

23. www.vhrm.be23 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

24. www.vhrm.be24 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)

25. www.vhrm.be25 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

26. www.vhrm.be26 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

27. www.vhrm.be27 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)

28. www.vhrm.be28 8. New institutions In general, taking care of coordination of environmental law enforcement in the Flemish Region

29. www.vhrm.be29 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

30. www.vhrm.be30 8. New institutions Chair person and vice chair are lawyers, some other members non-lawyers Court is independent from government Has a permanent secretary

31. www.vhrm.be31 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

32. www.vhrm.be32 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

33. www.vhrm.be33 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:

34. www.vhrm.be34 9. Concluding remarks Change improved environmental law enforcement in the Flemish Region!