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Environmental Law GLOBAL PRACTICE GUIDES Definitive global law guides offering comparative analysis from top-ranked lawyers Environmental Law Belgium Ariane Brohez, Julien Lecler and Atdhe Krasniqi Loyens & Loeff practiceguides.chambers.com 2020 BELGIUM Law and Practice Contributed by: Ariane Brohez, Julien Lecler and Atdhe Krasniqi Loyens & Loeff see p.15 Contents 1. Regulatory Framework p.3 10. Contractual Agreements p.8 1.1 Key Environmental Protection Policies, 10.1 Transferring or Apportioning Liability p.8 Principles and Laws p.3 10.2 Environmental Insurance p.9 2. Enforcement p.3 11. Contaminated Land p.9 2.1 Key Regulatory Authorities p.3 11.1 Key Laws Governing Contaminated Land p.9 3. Environmental Incidents and Permits p.4 12. Climate Change and Emissions Trading p.10 3.1 Investigative and Access Points p.4 12.1 Key Policies, Principles and Laws p.10 3.2 Environmental Permits p.4 12.2 Targets to Reduce Greenhouse Gas Emissions p.10 4. Environmental Liability p.5 13. Asbestos p.11 4.1 Key Types of Liability p.5 13.1 Key Policies, Principles and Laws Relating to Asbestos p.11 5. Environmental Incidents and Damage p.6 5.1 Liability for Historical Environmental 14. Waste p.11 Incidents or Damage p.6 14.1 Key Laws and Regulatory Controls p.11 5.2 Types of Liability and Key Defences p.7 14.2 Retention of Environmental Liability p.11 6. Corporate Liability p.7 14.3 Requirements to Design, Take Back, Recover, Recycle or Dispose of Goods p.11 6.1 Liability for Environmental Damage or Breaches of Environmental Law p.7 15. Environmental Disclosure and Information p.12 6.2 Shareholder or Parent Company Liability p.7 15.1 Self-Reporting Requirements p.12 7. Personal Liability p.7 15.2 Public Environmental Information p.12 7.1 Directors and Other Officers p.7 15.3 Corporate Disclosure Requirement p.12 7.2 Insuring Against Liability p.7 16. Transactions p.12 8. Lender Liability p.7 16.1 Environmental Due Diligence p.12 8.1 Financial Institutions/Lender Liability p.7 16.2 Disclosure of Environmental Information p.13 8.2 Lender Protection p.7 17. Taxes p.13 9. Civil Liability p.8 17.1 Green Taxes p.13 9.1 Civil Claims p.8 9.2 Exemplary or Punitive Damages p.8 9.3 Class or Group Actions p.8 9.4 Landmark Cases p.8 2 BELGIUM Law AND Practice Contributed by: Ariane Brohez, Julien Lecler and Atdhe Krasniqi, Loyens & Loeff 1. Regulatory Framework These acts determine the framework for issuing permits in the environmental domain. In the Flemish and Walloon Regions, 1.1 Key Environmental Protection Policies, several aspects of one project or facility have been integrated Principles and Laws into a single permit. Article 23 of the Belgian Constitution enshrines the right to live a dignified human existence, which includes the right to protec- General, sectorial and specific environmental conditions are tion of a sound environment. This article has no direct effect but determined by implementation decrees and orders, as follows: entails a standstill principle. This was confirmed by the Council of State in an arrest of 20 February 2019. • For soil protection: (a) the Ordinance of 5 March 2009 relating to the manage- Belgium is a federal country. The competencies are divided ment and sanitation of contaminated soils applicable in between the Federal State and, notably, the three Regions: the the Brussels-Capital Region; Brussels-Capital Region, the Walloon Region and the Flemish (b) the Decree of 1 March 2018 relating to management Region. and soil sanitation applicable in the Walloon Region; and Competencies relating to environmental protection have been (c) the Decree of 27 October 2006 concerning soil sanita- attributed to the Regions. The Federal State remains compe- tion and soil protection applicable in the Flemish tent for the establishment of product norms and for protection Region. against ionising radiation (including radioactive waste), as well • For waste management: as for specific matters in the North Sea. (a) the Ordinance of 14 June 2012 relating to waste applica- ble in the Brussels-Capital Region; The regulatory framework governing environmental protection (b) the Decree of 27 June 1996 relating to waste applicable is thus divided between the Federal State and the three Regions. in the Walloon Region; and (c) the Decree of 23 December 2011 concerning the Environmental policies and principles are mainly implemented sustainable management of waste applicable in the from European and international regulatory frameworks. It is Flemish Region. therefore necessary to consider supranational regulatory frame- works and to refer to them where and when appropriate. Non-compliance with the environmental protection regulations may lead to criminal, civil and/or administrative sanctions. The most important environmental legal regulations for general environmental principles are as follows: 2. Enforcement • the Code for Air, Climate and Energy of 2 May 2013 applica- ble in the Brussels-Capital Region; 2.1 Key Regulatory Authorities • the Environment Code of 27 May 2004 applicable in the Environmental policy and enforcement are applied at national, Walloon Region; and regional and local levels. • the Decree of 5 April 1995 containing general provisions on environmental policy applicable in the Flemish Region. At the national level, the most important regulatory authori- ties are the competent federal minister(s), the Department for The most important environmental legal regulations for the Public Health, Safety of the Food Chain and Environment sup- environmental permit policy are as follows: porting the competent minister(s), the Directorate General for Environment taking care of the co-ordination and collaboration • the Ordinance of 5 June 1997 relating to environmental between the different parties involved, and the Federal Inspec- permits applicable in the Brussels-Capital Region; tion for Environment in charge of enforcement, as well as the • the Decree of 11 March 1999 relating to the environmental public prosecutor when it concerns criminal sanctions. permit applicable in the Walloon Region; and • the Decree of 25 April 2014 concerning the environmental At the regional level, besides the competent ministers the most permit applicable in the Flemish Region. important regulatory authorities are as follows: 3 Law AND Practice BELGIUM Contributed by: Ariane Brohez, Julien Lecler and Atdhe Krasniqi, Loyens & Loeff • in the Brussels-Capital Region: Brussels Environment, an and installations with a more substantial environmental impact integrated environmental body, responsible notably for the are required to operate under an environmental permit. Other granting of permits and for control and inspection; less environmentally sensitive activities and installations can be • in the Walloon Region: the Department for Agriculture, operated without any environmental permit, or are only subject Natural Resources and Environment, including the Depart- to a notification obligation. ment for Soil and Wastes; and • in the Flemish Region: the Department of the Environment The classification of the activities, the competent authority for and the OVAM, which is the Flemish agency ensuring the the granting of an environmental permit and the procedure management of waste, materials and soil contamination. depend on the Region in which the activities are operated. At the local level, provinces and municipalities are also entrust- Brussels-Capital Region ed with the granting of permits as well as control and inspection. In the Brussels-Capital Region, the installations subject to authorisation are classified in four main categories: 1A, 1B, 2 and 3. The installations classified 1A, 1B and 2 are subject to an 3. Environmental Incidents and environmental permit, while the installations classified 3 are Permits subject to a notification. The regional authority – Brussels Envi- ronment – is competent to decide on an environmental permit 3.1 Investigative and Access Points application in class 1A and 1B (and on certain class 2 permit Each competent authority establishes its own surveillance applications). The College of Mayor and Aldermen of the rel- regime for the enforcement of environmental protection regu- evant municipality is competent to decide on the vast majority lations, including investigative and access powers. In addition to of environmental permit applications in class 2. specific environment-related competencies, the judicial author- ity has extensive investigative and access powers, based on the The granting authority assesses the permit application within general criminal law. the following time periods: In general, specific officers (also called the reporting author- • 450 days for a class 1A permit application; ity) are appointed by authorities in order to monitor the proper • 160 days for a class 1B permit application; and implementation of environmental regulations. They act as • 60 days for a class 2 permit application. judicial police officers and their key investigative powers are as follows: These time periods are subject to extension and run from the date on which the application is ruled complete and admissi- • accessing facilities, premises and lands; ble. In the absence of a decision, the environmental permit is • carrying out examinations and investigations, and collecting deemed to be refused. all kinds of information with relation to their duty; and • collecting samples and analysing them, whenever needed. The (absence of a) decision of the authority can be appealed by the permit applicant, any authority and any person concerned Within the
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