Belgium is revising its Civil Code, which poses a rare opportunity to include updates to address liability issues.
The Belgian Civil Code is currently under revision with various parts having recently been submitted for public consultation. Because France already changed its own Civil Code in order to address claims to redress "pure" ecological damage, the least that was expected in Belgium was the possibility to open a public debate on the issue. But the draft revised Code remains silent on that aspect. This provoked a fierce reaction of the environmental law community that in turn delivered a Joint Declaration aimed at introducing a provision similar to the French model that “[a]nyone liable for ecological damage is obliged to redress it”.
Most specialists expected that revision of the Civil Code would prompt a discussion about the need to address environmental damage (i.e. to nature and ecosystem services beyond individual damage caused to persons) and to provide redress. However, the proposal postponed the issue citing the foreseen complexity of such reforms in the Belgian legal context. This rare opportunity of revising the Civil Code was considered not to be missed and a large group of lawyers therefore presented an answer to the public consultation process in the form of the "Joint Declaration for the Inclusion of an Environmental Liability Regime in the Civil Code" (Déclaration commune en faveur de l’inscription d’un régime de responsabilité civile environnementale dans le Code civil). The result was delivered to Belgian Minister of Justice Koen Geens, and two collective op-ed articles were published in French and Dutch newspapers.
The main point made by the group is that it has now become a necessity - for the sake of clarity to all actors including the judiciary, industry, and the society at large - to address the issue of ecological damage in a text that governs the essential relations between people and their surroundings. Current specific, and sophisticated, liability and responsibility regimes could benefit from a paradigm shift since they only fix parts of the issue in Belgium. The core question remains if we still accept that, legally speaking, there is a freedom to pollute the environment and to consider nature as a big garbage bin? The Joint Declaration makes evident that the least that should be done now is to discuss the issue to confront the current ecological crisis.
by Charles-Hubert Born, Member - Seminary of Environmental and Land Use Planning Law (SERES), Faculty of Law and Biodiversity Research Centre (BDIV), Université Catholique de Louvain; and Delphine Misonne, Director - Centre d'étude du droit de l'environnement (CEDRE), Université Saint-Louis Bruxelles.