Harm to the Environment: The Right to Compensation and the Assessment of Damages

By Peter Wetterstein | Go to book overview

8
The Compensation of Ecological Damage Belgium

HUBERT BOCKEN


1. INTRODUCTION

In the first part of this Chapter a general overview is given of the basic rules on liability for environmental damage in Belgium. In the second part, the compensation and assessment of ecological damage are examined in more detail. With regard to both subjects, we first describe the prevailing law and thereafter present the solutions proposed in a Draft Decree on Environmental Policy which was recently elaborated by the Inter-university Commission for the Revision of Environmental Law in the Flemish Region.

Belgium having become a federal state, liability for environmental damage in Belgium remains mainly governed by federal law. The regions have to a limited extent enacted legislation in this area, more particularly with respect to liability for damage caused by the pumping of groundwater1 and for the cost of soil sanitation.2 The exact scope of their legislative powers with respect to liability for environmental damage remains debatable. One can, however, safely say that the regions are competent to legislate on the matter in so far as the allocation of certain losses is an inherent or necessary part of environmental policy for which the regions are fully competent.3


2. THE BASIS OF LIABILITY; CAUSATION

2.1. Present Law

The basic rules on environmental liability are found in the Civil Code, Articles 1382 and 1383 of which establish the fault liability which remains the cornerstone

____________________
1
Flemish and Walloon Decrees of 5 May 1984 and 11 Oct. 1985.
2
Flemish Decree on Soil Sanitation of 22 Feb. 1995.
3
The Court of Arbitration, in its decision 58/94 of 14 July 1994, confirmed that the Flemish region is constitutionally competent to legislate with respect to the recovery of the costs related to soil clean-up measures taken by the Flemish Public Waste Company ( 1995) 4 Tijdschrift voor Milieurecht310-18, at 312, with note by H. Bocken, "Het arrest nr. 58 van 14 juli 1994 van het Arbitragehof en de bevoegdheid van de gewesten om aansprakelijkheidsregelen uit te vaardigen".

-143-

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