Working papers & research reports

Lotte Ovaere, The choice of environmental regulatory enforcement by lobby groups, Lawforce working paper 2011/4, 31p.

Across countries and regions, we observe wide variations in the enforcement strategy that is used to reach compliance with environmental regulations. In this paper we study whether the differences in enforcement policies can be justified from an efficiency perspective, and if not, whether they favor the interests of certain lobby groups. We develop a theoretical model to derive the preferred enforcement policy, which is characterized from a global efficiency point of view, and also from the point of view of different types of interest groups. We find that, despite the regulatory costs, green interest groups generally favor more stringent enforcement strategies with high fines and high inspection frequencies, while brown interest groups prefer laxer enforcement strategies. As an illustration, we show numerically the divergence in preferred enforcement policies among different lobby groups and the efficiency costs of these deviations. Finally, to substantiate our theoretical findings, we discuss some empirical evidence on the differences in enforcement policies among EU member states for environmental regulation. Even though there are large variations between the European countries considering the enforcement of environmental regulation, we cannot conclude that these divergences are exclusively due to the impact of lobby groups.

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Carole M. Billiet, Environmental Law Enforcement in Belgium, U.Gent, EU Twinning Project Austria – Croatia, Lawforce research report 2011/2, October 2011, 15 p.

This quick sketch of environmental law enforcement in Belgium starts with an overview of the most striking common characteristics of the actual federal, Flemish, Brussels and Walloon enforcement legislation. It next discusses the sanctioning options and the use made of those in the criminal (prosecutors and judges) and the administrative (fining officers and administrative authorities competent for situational and right-depriving sanctions) sanctioning track. I.e. the low levels of the actual transactions (prosecutor’s offices) and fines (criminal courts and administrations) and the focus on individual prevention in the use of prison sentences (suspension of execution) are highlighted. Next, attention is paid to the communication between the authorities in charge of enforcement, at the level of individual cases as well as the level of case handling and strategies in general. The paper ends with a discussion of the level of specialization found with the monitoring authorities (police and administrations with monitoring tasks) and the public authorities with sanctioning competences (prosecutors’ offices, criminal courts, administrative authorities and administrative courts) and points at the current policy tendency towards higher specialization levels. The data concerning the environmental law enforcement practice relate mostly to the environmental law enforcement in the Flemish and Brussels Region.

This research report cannot be published on this webite.

Carole M. Billiet and Sandra Rousseau, Analyse en toepassing van het instrument voordeelontneming in het kader van de bestuurlijke milieuhandhaving [Analysis and Use of the Tool of Forfeiture of Illegally Acquired Benefits in the Administrative Enforcement of Environmental Law], U.Gent – HUBrussel, LNE/1MMC/2010/TWOL 201000011, Lawforce research report 2011/1, September 2011, 96 p.

The research report starts with a comparison of the competence the criminal courts have to impose a forfeiture of illegally acquired benefits with the competence the Flemish administration has to do so and gives an overview of the use the criminal courts have been making of the sanction. Then it focuses on the possibilities the sanction has in the administrative enforcement track as provided for by article 16.4.26 Flemish Environmental Policy Act (forfeiture of net benefits). Building on empirical data, we established a list of environmental offences that, at first glance, could offer fitting cases to forfeit illegally acquired benefits. We refined (shortened) this first list using the economic analysis of the forfeiture of illegally acquired benefits. Subsequently, we developed a method to calculate the net benefits that can be forfeited and detailed the steps to follow for each of the environmental offences we shortlisted, including an identification of cost categories and of information channels where to find information about those costs. Finally, we made checklists to be used when drafting notices of violation including the shortlisted offences, to help provide the information needed to calculate the net benefits in those notices.

This research report cannot be published on this website.

Carole M. Billiet, Thomas Blondiau and Sandra Rousseau, Judicial policy lines in the criminal sanctioning of environmental offences: an empirical study, U.Gent – K.U.Leuven, Lawforce working paper 2011/3, 52 p.

We analyze judicial policy lines concerning criminal environmental sanctioning using a unique European dataset of individual criminal cases, including case-specific information on offences and offenders. We investigate policy choices made by criminal judges in courts of first instance as well as the relevant court of appeal. The sanctioning policy of judges proofs to be varies as well as consistent. Judges decide to postpone convictions for cases they deem to be less important. They carefully balance effective and suspended sanctions, in general using them as substitutes, but in specific cases opting to use them cumulatively. Overall, judges in lower courts balance environmental and classic criminal law and aim at protecting individuals and their possessions as well as the environment.

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Thomas Blondiau en Sandra Rousseau, Different treatment of intentional and accidental violators of environmental law, Lawforce working paper 2011/2, 33p.

We investigate whether environmental sanctions should increase with the degree of intentionality of the violation. To this end we develop a simple model which is used to make predictions concerning the effect of the degree of intentionality, the amount of illegal gain obtained and the harm caused by the offense on the level of the optimal fine. These predictions are then used to learn more about the objectives pursued by enforcing authorities. We empirically test our theoretical predictions for firms as well as individuals using data on criminal environmental sanctions in Flanders and administrative environmental fines in Brussels. We find that judges and administrative officers aim at a mixture of social welfare maximization and regulation compliance maximization. Also, we find that in practice intentionality of a violation is always a factor which makes the sanction level increase. This is in contrast to a result from our theoretical analysis, in which we demonstrate that more intentional violations can lead to lower optimal fines.

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Carole M. Billiet, Thomas Blondiau and Sandra Rousseau, Milieucriminaliteit in het beleid van de strafrechter: bestraffen tussen Haus en Brundtland [Environmental Crime in the Criminal Judge’s Policy. Punishing Between Haus and Brundtland], Lawforce working paper 2011/1, 52p.

In Belgium and Europe there exists a growing tendency to organize environmental law sanctioning within a two-track model that combines penal and administrative sanctioning. The idea is that both sanctioning tracks should complete and support each other. But what are, in Belgium, the main policy lines that the criminal courts have been drawing within the very wide margins of discretion provided by the common criminal law and the special environmental crime law? What is the punishment policy administrative penalization has to offer a complement to? The question is researched by an econometric analysis of the 1156 judgments (1034 first instance judgments and 122 appeal judgments) that form the environmental crime case law in the years 2003- 2006 (2007) within the judicial resort of the Court of Appeal of Gent.

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Tom Vander Beken and Annelies Balcaen, Dossiervoering door de rechter: beperkingen op de discretionaire bevoegdheid van de rechter bij de straftoemeting, Lawforce working paper 2009/5

This paper focuses on the discretionary powers of judges and the limitations thereof. In principle, judges have an enormous amount of freedom when deciding on the punishment/measure and the level of punishment. The boundaries of the discretionary competence of the judge are formed by the legal maxima and minima of the punishment and by a number of legal provisions on the exclusion, reduction and the increase of punishments. Furthermore, a number of legal provisions provide guidelines for the judges and a number of procedural provisions limit their freedom of decision making. Finally, a number of general principles of justice influence the discretionary power. The most important one – in terms of the principle that has the largest influence on the discretion – is the obligation to motivate the decisions taken by judges.

Click here (pdf, 486 KB) to view the full paper (Dutch).

Thomas Blondiau and Sandra Rousseau, The Impact of the Judicial Objective Function on the Enforcement of Environmental Standards, Lawforce working paper 2009/4

Thomas Blondiau, Estimation of fine determinants for administrative sanctions, Lawforce working paper 2009/3

Tom Vander Beken and Annelies Balcaen, Discretionaire bevoegdheid van het openbaar ministerie in strafzaken: tussen rechter en ambtenaar?, Lawforce working paper 2009/2

Sandra Rousseau and Kjetil Telle, On the existence of the optimal fine for environmental crime, Lawforce working paper 2009/1

Classical theory states that the optimal fine is the damage caused by the crime divided by the probability of detection. But does such an optimal fine exist? We focus on emissions from production, and, even if we assume that the damage function is perfectly known, we still show that the optimal fine typically does not exist. Non-existence occurs as the environmental damage function is non-linear in overall emissions, meaning that there are interactions between emissions, the economy and the environment. We argue that these interactions cannot be accurately reflected in the fine imposed by the regulator in practice. Previous literature on optimal fines does not recognize the non-existence of the applicable optimal fine, basically since this literature uses discrete models where the damage caused by the crime is assumed constant. Our result reduces the attractiveness of fines and may help explain enforcement agencies’ inclination towards non-monetary enforcement instruments.

Click here (pdf, 733 KB) to view the full paper.

Sandra Rousseau, The Use of Warnings in the Presence of Errors, Lawforce working paper 2008/2

This article studies the effects of warnings, an enforcement instrument which is often used by environmental inspection agencies. Due to regulatory errors, measured emissions are uncertain and some firms are unjustly penalized. Warnings can then be used as a means to reduce the consequences of these errors. Even though the presence of warnings creates some underdeterrence of medium-cost firms, such a system reduces the overcompliance of low-cost firms caused by the uncertainty surrounding measured emissions. Further, warnings reduce the number of incorrect prosecutions in the case of measurement errors, which is also welfare enhancing, albeit at the cost of increasing the number of violators that go unpunished. For small error sizes, the use of warnings is shown to be welfare improving compared to only using fines.

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Tom Vander Beken and Annelies Balcaen, Uitvoering van strafrechtelijke veroordelingen (boeten, voordeelontnemingen en vrijheidsstraffen): stroomschema, Lawforce working paper 2008/1

The criminal law reaction to breaches of environmental law mostly consists of imposing a fine. In some cases however, the judge pronounces a prison sentence or a confiscation.

This working paper tackles the execution phase of the abovementioned sentences.

Explanation is given on which actor is responsible for the execution, when the execution can take place and which procedure is followed.

Hereto, an analysis is made of existing legislation, literature and existing data (scientific research and interviews).

Click here (pdf, 412 KB) to view the full paper (Dutch).

Tom Vander Beken and Annelies Balcaen, Strafrechtelijke sanctionering van milieurecht: stroomschema van PV tot vonnis, Lawforce working paper 2007/2

The flow chart ‘from a report of an offence to a judgement’ discusses the different stages in the criminal law procedure from the moment a report of an offence comes in at the Prosecutor’s Office until the moment a judge reaches a verdict. Particular attention will be paid to the different ways in which a case can come to the attention of the Public Prosecutor’s office, the preliminary investigation run by the prosecutor and the trial phase in which the judge comes to a verdict on the basis of the gathered evidence. For each phase of the criminal law procedure, the actors involved will be under discussion, the procedure as such will be analysed and the different decisions that can be taken will be elaborated. Furthermore, existing data on the phases of the criminal law procedure will be subject of analysis.

Click here (pdf, 1.25 MB) to view the full paper (Dutch).

Sandra Rousseau, Literature Review: Economic Empirical Analysis of Sanctions for Environmental Violations, Lawforce working paper 2007/1