Project 2007-2011

The subject of the research project is the enforcement of environmental law, and more particularly a comparison of enforcement practice in the criminal and administrative tracks.

Enforcement is one of the essential duties of the state. It is the cornerstone of every legislative policy: legislation is ineffective without enforcement. Practical examples show how elementary this is. Speed limits are pointless if no checks are carried out and no penalties are imposed; the spectacular decrease in illicit waste dumping in the streets of Brussels is attributable to the thousands of administrative fines that have been imposed and collected there since 2000; action taken by the Antwerp public prosecutor’s office in 1985 forced Dutch and German toxic waste dumpers to transfer their activities to the south of the country; the total lack of enforcement in that part of the country soon (in 1990) resulted in 8,800 illegal dumping sites (the toxic waste site in Mellery being a sad eye-catching example) (Morrens, 1990); the fireworks disaster in Enschede and the pub fire in Volendam are partly due to inadequate enforcement; moonlighting thrives if there is no labor inspection, etc.

In Flanders, enforcement of environmental law began to develop from the mid-eighties of the last century, first in the criminal track (with the exemplary action taken by the Antwerp public prosecutor’s office), and a few years later in the administrative track (driven by the establishment of a Flemish Environmental Inspectorate).

In the past twenty years or so in which we have seen a development of environmental law enforcement, the possibilities for penalization have evolved accordingly. The range of instruments available to the courts and the administrative authorities to control environmental crime has changed significantly with the introduction of new instruments (e.g. the power to seize unlawfully obtained financial benefits) and by a radical extension of the applications of existing instruments (as a result of the introduction of criminal liability of legal persons). Consequently, we can see a convergence of the instruments of the courts and the administrative authorities (e.g. first experiments with administrative fines). 

A typical feature of all these penalization instruments is the high level of discretion which the law grants to the enforcers. A simple example is the setting of a fine that is imposed within the range of 550 to 55,000,000 euros that is provided for in the law (Waste Decree). Due to this ample degree of discretion, the use that is made of the available instruments in practice is at least as crucial to the quality of the enforcement as the choices which the legislator has made and has translated into legislation. So far, the use which the courts and the administrative authorities make of the instruments at their disposal to combat environmental crime, and in particular the way in which they put the wide discretion they have been given into practice, has not (administrative authorities), or only fragmentarily (the courts), been investigated.

As the debate on the instruments at the legislative level has matured (see for instance the Flemish Enforcement Decree), the development of the range of instruments available to the courts and the administrative authorities has now reached a crucial point, with socially significant opportunities as well as risks of undesirable developments. (1) A major challenge ensuing from the developments in legislation is that the Flemish environmental authorities will have to learn to use instruments with which they have no experience whatsoever, experience which the criminal courts do have. For the sake of environmental policy and citizens’ confidence in this policy, it is necessary that this learning process unfolds swiftly and thoroughly. (2) Since we are seeing a convergence between the instruments of the criminal courts and of the administrative authorities, there is a real risk of an enforcement practice developing where similar instruments are used in different ways, for example where the same offences are fined much less heavily by the criminal court than by the administrative authority, or the criminal court and the administrative authority, when imposing identical penalties, evolve a different policy depending on whom the penalty is imposed. This is a most undesirable development, since it runs counter to the principle of equality before the law and undermines citizens’ confidence (industries and individuals) in the rule of law. (3) As regards the innovation in instruments referred to above, a practice has been built up over the last five to fifteen years, so that this precise moment where the consistency of enforcement is at stake and one of the two key enforcement bodies is due to embark on an important learning process is a good time to start an investigation into the way the various instruments are used. Such an investigation represents an ideal opportunity to improve environmental law enforcement (both as regards legislation and use of instruments).

The research project offers a positive response to the challenges facing environmental law enforcement: it makes it possible to use the opportunities being offered and to avert the undesirable developments. (1) With regard to the use of penalty instruments, the project brings together all the knowledge that is currently lacking and is needed to optimize legislation and practice. Crucial in this respect is the construction of a database covering the whole penalization pathway (from official report of violation to the decision to enforce execution of a penalty, encompassing discretionary dismissal or tacit toleration and the decision to impose a penalty) within both the criminal and the administrative track. The data collection procedure has been designed in such a way that discrete choice moments can be described and analyzed (using quantitative analysis techniques, among others). (2) We can find out, starting from the database and a study of the relevant legal and economic framework, whether there are ways to optimize the current use of the different instruments and whether certain aspects of current practice call for adjustments to legislation. (3) At the same time, we can lay the foundations for the development of a public (criminal and administrative) environmental law enforcement that is internally consistent and is able to opt at least in a conscious and well-considered manner for a differentiated policy implementation. (4) At the same time, we can also lay the foundations for the learning process which the environmental administrative authorities will have to go through on how to use various new instruments that are already known to the criminal courts.

It is a multidisciplinary research project: law (with internal transdisciplinarity between environmental law, administrative law and criminal law), economics (in particular environmental economics) and law and economics. The interdisciplinarity between law on the one hand and economics and law and economics on the other is essential to the investigation (description and analysis) into the discrete choices that are made in the use of the different penalization instruments (such as quantitative analysis methods). The conventional legal research methodology is inadequate in this respect.

The database that is being constructed for the study of enforcement practice differs substantially from conventional case-law surveys. (1) It also covers administrative penalty decisions which do not appear in case-law surveys and are not published anywhere else either. (2) It is not limited to judgments, rulings and penalty decisions: as was mentioned earlier, it documents the entire penalization pathway. 

The convergence of administrative and criminal law enforcement and the social challenges that accompany it are not typical of environmental policy. A general trend can be discerned in this respect in the most diverse policy areas and at all levels of government, from the federal level (e.g. the Act of 5 February 1999 on the quality of agricultural products, which has instituted five new administrative fining systems in the areas of agriculture, public health and animal welfare) to the local level (e.g. municipal nuisance penalties) (see also a decree of 2004 introducing a uniform administrative fining system to enforce Flemish regulations in matters of social law) (e.g. Put, 2005). These trends and challenges also manifest themselves in other countries, in environmental policy (e.g. Faure and Heine, 2005) (see for instance Comte, 2005, for the underlying deficiencies in practical knowledge) as well as in other policy areas (see for instance the case-law of the European Court of Human Rights in the area of administrative fines).

Hence the very wide range of potential applications of the research outcomes (see also the various expert opinions).

F. Comte, “Crime contre l’environnement et police en Europe: panorama et pistes d’action”, Revue européenne de droit de l’environnement, 2005, 381-447; M. Faure and G. Heine, Criminal Enforcement of Environmental Law in the European Union, The Hague, Kluwer Law International, 2005, 181 p., e.g. 65; P. Morrens, De golf en de zwemmer. Bedenkingen bij de leefmilieuproblematiek, Antwerpen, Standaard Uitgeverij, 1990, 136 p.; J. Put, “Naar een kaderwet administratieve sancties”, Rechtskundig Weekblad, 2005 – 2006, 321-336.