Title XV.
Environmental Damage


SECTION I.
Introductory provisions


Heading I.
Definitions


Article 15.1.1. Translation not available

Heading II.
Scope


Article 15.1.2.

This title applies to environmental damage caused by any business activity of the type stated in appendix IV, or to the immediate threat that such damage will occur as the result of one of these business activities.

This title also applies to damage to protected species and natural habitats caused by any business activities other than those stated in appendix IV, as well as to the immediate threat that such damage will occur as the result of one of those other business activities, provided it can be demonstrated that the operator is at fault or was negligent.


Heading III.
Relationship to other law


Article 15.1.3. This title applies, without prejudice to more stringent provisions on a business activity that falls within the scope of this title.

Article 15.1.4. This title applies regardless of the prevailing legislation on liability, the laws governing access to the courts, and laws governing conflicts of jurisdiction.

Article 15.1.5. This title does not apply in cases of physical injury, damage to private property or economic loss, and therefore, does not entitle people to compensation for environmental damage or an immediate threat of such damage.

Heading IV.
Exceptions


Article 15.1.6.

1.

This title does not apply to environmental damage, or to the immediate threat that such damage will occur, as the result of:

  1. an act of war, hostilities, civil war or rebellion;
  2. a natural phenomenon that is exceptional, inescapable and unavoidable

2.

This title does not apply to activities designed chiefly to defend the country or ensure international security.

3.

This title does not apply to activities designed solely to offer protection against natural disasters.

4.

This title does not apply to:

  1. damage, caused by an emission, an event or an incident that took place before 30 April 2007;
  2. damage, caused by an emission, an event or an incident that took place on or after 30 April 2007, if the damage is the result of a specific activity that took place and ended before that date;
  3. damage, if it has been more than thirty years since the occurrence of the emission, event or incident that caused the damage.

5.

This title does not apply to nuclear risks or environmental damage, or to the immediate threat that such damage will occur, resulting from activities subject to the Treaty establishing the European Atomic Energy Community, or as the result of an incident or activity for which liability or compensation falls within the operating sphere of one of the following international conventions, including future amendments thereof:

  1. the Paris Convention of 29th July 1960 on Third Party Liability in the Field of Nuclear Energy, as well as the Brussels Convention of 31 January 1963 supplementary to the Paris Convention;
  2. the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage;
  3. the Convention on Supplementary Compensation for Nuclear Damage of 12 September 1997;
  4. the Joint Protocol of 21st September 1988 relating to the Application of the Vienna Convention and the Paris Convention;
  5. the Convention relating to Civil Liability in the field of maritime carriage of nuclear material (Brussels, 17 December 1971).

6.

This title does not apply to environmental damage, or to the immediate threat that such damage will occur, resulting from an incident in which liability and compensation falls within the operating sphere of one of the following international conventions, including future amendments thereof:

  1. the International Convention of 27 November 1992 on Civil Liability for oil pollution damage;
  2. the International Convention of 27th November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage.

7.

This title only applies to environmental damage, or to the immediate threat that such damage will occur, if it is the result of diffuse contamination, provided a causal link can be established between the damage and the activities of individual operators.


SECTION II.
Preventive action


Article 15.2.1. If no environmental damage has as yet occurred, but there is an immediate threat that such damage will occur, the operator will immediately put the necessary preventive measures in place.

Article 15.2.2. Operators are required to inform the competent authority as quickly as possible of all relevant aspects of the situation if an immediate threat of environmental damage does not disappear despite the preventive measures put in place by the operator in question.

Article 15.2.3.

At any time, the competent authority can:

  1. oblige the operator to provide information on an immediate threat of environmental damage, or, in cases in which such an immediate threat is suspected;
  2. oblige the operator to put the necessary preventive measures in place;
  3. give the operator instructions to be followed when putting the necessary preventive measures in place.

Article 15.2.4. The Flemish Government can set further rules to assist implementation of the provisions of this section, and in particular, with reference to the content and procedure governing the operator’s obligation to provide information.

SECTION III.
Remediation action


Heading I.
Basic obligations


Article 15.3.1.

When environmental damage has occurred:

  1. the operator informs the competent authority without delay of all relevant aspects of the situation;
  2. the operator puts all restrictive measures in place;
  3. the operator puts the necessary remediation measures in place, in accordance with Articles 15.3.3 up to and including 15.3.11.

Article 15.3.2. Translation not available

Heading II.
Choice and establishment of remediation measures


Article 15.3.3. The operators establish, in accordance with Articles 15.3.11 up to and including 15.3.11, the potential remediation measures and submit them to the competent authority for approval.

Subheading I.
Remediation of damage to natural habitats, protected species and water


Article 15.3.4. When drafting the primary remediation measures, the options of returning natural resources or ecosystem functions to their reference condition in a direct and accelerated manner, or by natural generation, will be considered.

Article 15.3.5. When determining the extent of complementary and compensatory remediation measures, an approach which rests on the equivalence of the resources or functions will be considered first. In an approach of this type, measures which lead to natural resources or ecosystem functions of the same kind, quality and quantity as those affected will be considered first. If this is not possible, alternative natural resources or ecosystem functions will be provided.

Article 15.3.6.

If the approach stated in 15.3.5, based on the equivalence of the natural resources or functions, does not appear possible, alternative valuation techniques will be used.

If a valuation of the lost resources or functions is possible, but a valuation of the replacement natural resources or functions is not feasible within a reasonable period of time and at a reasonable cost, the competent authority can opt for remediation measures whose costs correspond with the estimated financial value of the lost natural resources or ecosystem functions.


Article 15.3.7.

Reasonable remediation options are to be assessed using the best available techniques and are to be based on the following criteria:

  1. the effect of each option on human health and safety;
  2. the costs of implementing the various options;
  3. the chances of success of each option;
  4. the degree to which each option will prevent future damage and in which unintentional damage can be avoided during implementation of the option;
  5. the degree to which each option benefits the various components of the relevant natural resources or ecosystem functions in question;
  6. the degree to which each option takes account of relevant social, economic and cultural issues and other relevant local factors;
  7. the time required to effectively remediate the environmental damage;
  8. the degree to which each option brings about the remediation of the location of the environmental damage;
  9. the geographic relationship with the damaged location.

Article 15.3.8. When evaluating the various remediation options, primary remediation measures can be chosen which do not entirely return the damaged water and protected species and natural habitats to their reference condition or return them to their reference condition in a shorter period of time. Such a decision can only be made if the natural resources or ecosystem functions under consideration are compensated by strengthening the complementary and compensatory measures, thereby creating a level of natural resources or ecosystem functions similar to that which originally existed.

Article 15.3.9.

Notwithstanding the provisions of Article 15.3.8, the competent authority can, in accordance with Article 15.8.10, decide that no further remediation measures be taken if:

  1. the remediation measures already put in place guarantee no significant danger of a negative impact on human health, water or protected species and natural habitats;
  2. the cost of the remediation measures to be put in place to achieve the reference condition or a similar level would not be proportional to the environmental benefits thus obtained.

Article 15.3.10. The remediation of damage to water, protected species and natural habitats also implies the removal of every significant risk of the negative impact on human health.

Subheading II.
Remediation of soil damage


Article 15.3.11. The remediation of soil damage is subject to the relevant provisions of the Soil Decree.

Heading III.
Further implementation


Article 15.3.12. The Flemish Government can set further rules to assist implementation of the provisions of this section, and in particular, with reference to the content and procedure governing the operator’s obligation to provide information and the use of the valuation techniques.

SECTION IV.
Cost of prevention and remediation


Heading I.
Obligation of the operator


Article 15.4.1.

The operator bears the cost of measures put in place in accordance with this title, without prejudice to any later application of Articles 15.5.1 up to and including 15.5.6.

Measures taken by the competent authority on the grounds of Articles 15.8.4 up to and including 15.8.7 do not affect the operator’s obligations under the terms of this title, or measures with regard to state aid.


Heading II.
Recovery of costs where multiple parties are involved


Article 15.4.2. If one and the same incident of damage or immediate threat of damage is caused by multiple parties, the parties are jointly and severally liable for the costs.

SECTION V.
Defencess


Heading I.
General provisions


Article 15.5.1.

1.

In cases in which the operator is of the opinion that he satisfies the conditions stated in Articles 15.5.3, 15.5.4, 15.5.5 or 15.5.6, he must serve his reasoned standpoint on repayment of the costs incurred to the competent authority by registered post.

He shall do this, under penalty of forfeiture, within a period of ninety days after completion of the measures.

2.

The competent authority will investigate his reasoned standpoint and assess whether or not the operator satisfies the conditions.

The competent authority will inform the operator of its decision within a period of sixty days after receipt of his reasoned standpoint.

3.

If the competent authority is of the opinion that the operator’s request for repayment is grounded, the competent authority will take the appropriate measures within the confines of the credit available in the Mina fund.

4.

In cases in which the operator invokes the defences stated in Article 15.5.3, he must recoup the costs first of all from the third- party . If it cannot be determined who the third party at fault is, or if he is not solvent to carry all or part of the costs, the operator can recover his costs or the non-collected portion thereof in accordance with the measures stated in 1, second paragraph.


Article 15.5.2. The provisions of this chapter do not apply to soil damage.

Heading II.
Third party at fault and mandatory government order


Article 15.5.3. An operator is not obliged to bear the costs of measures taken by virtue of this title, if he is able to demonstrate that the environmental damage or the immediate threat that such damage will occur was caused by a third party, despite the fact that appropriate safety measures were taken and insofar as the third party involved is not a legal predecessor, representative, appointee or agent of the operator.

Article 15.5.4. An operator is not obliged to bear the costs of measures taken by virtue of this title, if he is able to demonstrate that the environmental damage, or the immediate threat that such damage will occur, results from the following of a enforcement order or instruction issued by a government authority, unless it is an order or instruction resulting from an emission or incident caused by the activities of the operator himself.

Heading III.
Licence


Article 15.5.5.

The operator does not need to bear the costs of remediation measures taken on the grounds of this title, if he demonstrates that:

  1. he was not at fault or negligent;
  2. the environmental damage was caused by an emission or incident that is expressly permitted on the grounds of, and entirely consistent with the conditions of, a licence granted under or by virtue of prevailing federal and regional provisions and implementing orders that implement the Community legislative measures stated in appendix IV, as applied on the date of the emission or incident.

Heading IV.
State of scientific and technological knowledge


Article 15.5.6.

The operator does not need to bear the costs of remediation measures taken on the grounds of this title, if he demonstrates that:

  1. he was not at fault or negligent;
  2. the environmental damage was caused by emissions or activities or any way in which a product is used during an activity, where the operator is able to prove that, based on the state of scientific and technological knowledge at the time at which they took place, they were not considered harmful.

SECTION VI.
Request for measures


Article 15.6.1.

The following persons can, if they are aware of cases of environmental damage, submit their observations to the competent authority and request that the competent authority take measures under this title:

  1. natural persons and legal persons who suffer from or are in danger of suffering from environmental damage;
  2. natural persons and legal persons who have an interest in the decision-making process regarding the damage;
  3. legal persons, as stated in Article 2 of the Act of 12 January 1993 establishing a right of action for the protection of the environment.

Article 15.6.2. A request for measures is to be accompanied by the relevant information and data supporting the observations submitted in relation to the environmental damage in question.

Article 15.6.3. The competent authority will inform the persons stated in Article 15.6.1 as soon as possible, and in any case, within a period of thirty days of its decision on whether or not to take measures and the reasons for this.

Article 15.6.4. The Flemish Government can set further rules on the submission, processing and notification of a request for measures.

SECTION VII.
Appeal


Article 15.7.1.

1.

The persons stated in Article 15.6.1 can lodge an appeal with the Flemish Government against the decision of the competent authority stated in Article 15.6.3.

Operators, with regard to whom the competent authority took preventive measures against in accordance with Article 15.2.3, or remediation measures in the sense of Article 15.3.2, can also lodge an appeal with the Flemish Government against a decision involving this action.

2.

The appeal must be served, under penalty of inadmissibility, by registered post with proof of receipt or delivered with proof of receipt to the Flemish Government within thirty days of the date of receipt of the contested decision.

The Flemish Government will make a judgement on admissibility within a period of fourteen days of receipt of the appeal.

3.

Within a period of ninety days of being declared admissible, the Flemish Government will decide the appeal after examining it against the material and procedural rules of this title.

4.

This appeal is non-suspensive

5.

If a judgement is not given on the appeal within a period of ninety days, it is considered to be rejected.

6.

The Flemish Government can set further rules as to the way in which the appeal stated in this Article is to be submitted, announced and processed.


SECTION VII.
Competent authority


Heading I.
Designation


Article 15.8.1. Translation not available

Heading II.
Tasks


Subheading I.
General tasks


Article 15.8.2. The authority to assess the nature, extent and severity of the damage rests with the competent authority. Soil damage is established in accordance with the relevant provisions of the Soil Decree.

Article 15.8.3.

The authority to identify the operator who caused the damage, or the immediate threat of damage, rests with the competent authority.

The indication of the person required to prevent and remediate soil damage at his own expense shall take place in accordance with the relevant provisions of the Soil Decree.


Translation not available

Translation not available

Subheading II.
Preventive action


Article 15.8.4. Translation not available

Article 15.8.5. The competent authority demands that the operator take the preventive measures. If the operator does not fulfil the obligations in Article 15.2.1 and Article 15.2.3, 2 and 3, or cannot be identified, the competent authority can take the preventive measures itself.

Subheading III.
Remediation action


Article 15.8.6. Translation not available

Article 15.8.7. The competent authority demands that the operator take the restrictive measures and remediation measures. If the operator does not fulfil the obligations in Article 15.3.1 and Article 15.3.2, 2 and 3, or cannot be identified, the competent authority can take these measures itself.

Article 15.8.8. The authority to determine which remediation measures must be implemented, in accordance with Articles 15.3.3 up to and including 15.3.11, rests with the competent authority.

Subheading IV.
Establishment of remediation measures

Translation not available

Article 15.8.9. If necessary, the competent authority will work with the operator.

Article 15.8.10. Translation not available

Article 15.8.11.

The competent authority invites the persons stated in Article 15.6.1, and, in any case, the persons on whose land the remediation measures and restrictive measures are put in place and the operator in question, to give their comments. The competent authority takes this comments into consideration.

The Flemish Government can set further rules as to the method of notification.


Subheading V.
Recuperation of costs


Article 15.8.12. Without prejudice to the application of Articles 15.5.1 up to and including 15.5.6, the competent authority recuperates the costs it incurs in putting measures in place on the grounds of this title from the operator who caused the damage or the immediate threat of damage. The competent authority collects and recovers these costs on behalf of the Mina fund.

Article 15.8.13.

The Flemish Region can recover these costs by means of an enforcement order. The enforcement order will be signed and declared enforceable by the competent authority.

The enforcement order is subject to the provisions of part V of the Legal Code on the sequestering of property and means of enforcement.

The enforcement order is served on the debtor in the form of a writ of summons.

Within a period of thirty days of the date of receipt of the enforcement order, the debtor is entitled to lodge a protest with Flemish Region.

This protest suspends the enforcement. The Flemish Region can request that the court remove the suspension of enforcement.


Article 15.8.14.

The Flemish Region can recuperate the costs by, among other things, means of a business surety or another appropriate guarantee.

On the grounds of the enforcement order that has been declared enforceable, and to secure recuperation of the costs, the Flemish Region has a general preferential claim on all movable property of the operator and can take a legal mortgage out on all appropriate or registered goods of the operator located or registered in the Flemish Region.

This preferential claim takes precedence immediately after the preferential claims stated in Articles 19 and 20 of the Act of 16 December 1851 and in Article 23 of book II of the Commercial Code.

The rank of the legal mortgage is determined by the date of registration taken under the enforcement order that has been declared enforceable and served.

The mortgage is registered at the request of the competent authority. The registration takes place, notwithstanding protest, dispute or appeal, on production of a copy of the enforcement order, which is certified by the official and makes mention of the service thereof.

Article 447, second paragraph of book III of the Commercial Code with regard to compulsory liquidation, bankruptcy and deferment of payment does not apply to the legal mortgage as regards the costs of the measures. The Flemish Government can accept other forms of financial security.


Article 15.8.15. Contrary to Article 15.8.12, the Flemish Government can decide not to pursue recuperation of the costs, if the cost of recuperation is greater than the amount to be recouped or if it is not possible to establish the identity of the operator.

Article 15.8.16. The competent authority is authorised to initiate proceedings against the operator to recuperate the costs relating to all measures taken on the grounds of this title, before the expiry of a period of five years, starting from the date on which the measures are completed in full or the date on which the liable operator is identified, where this date is later.

Article 15.8.17. The Flemish Government can set further rules and procedures to establish the costs and with regard to exercising the recuperation of costs.

Subheading VI.
Processing of requests for measures


Article 15.8.18. The competent authority will consider observations and requests that make it reasonable to assume that environmental damage has occurred. Article 15.8.11 equally applies here.

Article 15.8.19. The competent authority informs the persons stated in Article 15.6.1 as soon as possible about the decision of whether or not to take measures and the reasons for this.

Article 15.8.20. Translation not available

Translation not available

Article 15.8.22. Translation not available

SECTION IX.
Financial securities


Article 15.9.1. The Flemish Government takes measures to encourage the appropriate economic and financial players to develop financial security tools and markets, including financial mechanisms for cases of insolvency, in order to enable operators to make use of financial guarantees to meet their responsibilities as subject to this title.

SECTION X.
Cooperation with Regions, the federal government and other Member States


Article 15.10.1.

If environmental damage has consequences or threatens to have consequences for one or more regions, the federal government, or other Member States of the European Union, the competent authority works with the competent authorities of the other regions, federal government, and other Member States via, among other things, an appropriate exchange of information, in order to ensure that the necessary measures are taken relating to that environmental damage or immediate threat of environmental damage.

If environmental damage of the type stated in the first paragraph occurs, the competent authority provides sufficient information for the competent authorities of the other regions, the federal government, or other Member States of the European Union.

When the competent authority identifies environmental damage not caused within its borders, it can report this to the competent authorities of the relevant regions, the federal government, or Member States of the European Union; where appropriate, recommendations on the necessary measures can be made to the European Commission and requests can be made for repayment of the cost of the measures that have been taken.

This cooperation shall have no negative effect on existing and future forms of cooperation.


SECTION XI.
Report and evaluation


Article 15.11.1.

The competent authority will report to the Flemish Government biennially, as from the date on which this title comes into effect, on the application of this title.

This report will contain at least the following information:

  1. the measures taken to encourage the use of financial security tools and the results thereof;
  2. the cases of environmental damage, the type of environmental damage, the dates on which the environmental damage occurred or came to light;
  3. the results of the remediation processes;
  4. the outcomes of the appeal procedures;
  5. the estimate of the extra administrative costs to be borne by the government on an annual basis;
  6. the evaluation of the defence resources stated in Articles 15.5.1 up to and including 15.5.6, particularly with regard to the application of the state of the scientific and technical knowledge;
  7. the non-application of the procedure for requests for measures in cases posing an immediate threat of environmental damage.
The Flemish Government can set further rules in this matter. “