Background
Administrative fine procedure
Pre-emptive sum option
Comment


Background

In 2009 the Flemish region introduced a new system to penalise violations of Flemish environmental legislation. Violations are classified as either environmental infringements or environmental crimes.

An environmental infringement is a violation of an administrative obligation and can incur only an administrative fine (a so-called 'exclusive administrative fine'). Any violation that is not an environmental infringement will be regarded as an environmental crime, which can be punished under criminal or administrative law.

An environmental crime will be subject to administrative penalties only if the public prosecutor notifies the Environmental Enforcement Department of the Flemish government that he or she will not pursue criminal prosecution. After this notification, the department will have 30 days to announce its intention to impose an alternative administrative fine of up to €1.5 million.

An environmental infringement cannot give rise to criminal prosecution. After receipt of the official report from the enforcement authorities, the department may decide to impose an exclusive administrative fine of up to €300,000.

Administrative fine procedure

In both cases the department must follow a strict procedure before imposing such fines. The procedure consists of the following steps:

  • informing the suspected offender, within a certain period, of the department's intention to impose an administrative fine (this period is 30 days for an alternative administrative fine and 60 days for an exclusive administrative fine);
  • inviting the suspected offender to file its defence in writing;
  • if requested by the suspected offender, offering it the possibility for a hearing;
  • deciding whether to impose an administrative fine within 180 days (for an alternative administrative fine) or 90 days (for an exclusive administrative fine) of notification of its intention to do so; and
  • notifying the suspected offender of the final decision within 10 days.

The offender may appeal the decision before the Environmental Enforcement Court.

This procedure is time consuming and largely useless for infringements with limited impact, resulting in a considerable workload and backlog at the department.

Pre-emptive sum option

To solve the problems inherent in this procedure, the Flemish government has elaborated on a new statute that gives suspected offenders the option to pay a pre-emptive sum instead. Earlier this year the Flemish Parliament inserted new articles in the decree that cover the basics of this new procedure.

As of August 23 2012 the department is entitled to send – before or during a procedure to impose an alternative or exclusive administrative fine – a proposal to the suspected offender to pay a pre-emptive sum in lieu of the fine. This option is available only in the following situations:

  • for a procedure to impose an exclusive administrative fine, in cases where there is no discussion of the violations or who committed them; and
  • for a procedure to impose an alternative administrative fine, in cases where:
    • it is obvious from the official report that the offender committed the environmental crime; and
    • the environmental crime caused no serious damage to the environment.

However, even if these cumulative conditions are met, the option will not be available if the official report reveals multiple environmental crimes or if the suspected offender has already been subject to a criminal conviction, alternative administrative fine or another proposal to pay a pre-emptive sum for the same environmental crime.

The amount to be paid cannot exceed €2,000 for violations that may incur alternative administrative fines or €500 for violations that may incur exclusive administrative fines.

The administrative fine procedure will be suspended from the date of the proposal to pay the pre-emptive sum. If the sum is paid within three months, the administrative fine procedure will be annulled. If the sum is not paid within this time or if the suspected offender notifies the department that it does not agree with the proposed sum, the procedure will resume.

Comment

Only time will tell whether this new system will be effective. First, it is available only for rather modest violations. Second, practice has shown that the department takes into account the theoretical risk of damage to the environment; therefore, it could easily conclude that any serious threat of damage to the environment exists. Third, the application for the proposal to pay the pre-emptive sum is subject to the department's discretion.

The preparatory works of the decree of April 20 2012 explicitly confirm that this new option can be applied to all pending cases.

For further information on this topic please contact Dominique Devos at DLA Piper UK LLP by telephone (+32 2 500 1500), fax (+32 2 500 1600 ) or email (dominique.devos@dlapiper.com).

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