Considerable attention has been given recently to the environmental crime of illegal waste dumping. Belgian jurisprudence tends to extend liability for the crime to the previous owners of the site. This update provides an overview of this jurisprudence and its consequences.
Illegal waste dumping is prohibited under national and regional environmental law. According to the settled case law of the Court of Cassation, illegal waste dumping relates not only to the dumping itself, but also to the failure to remove the illegal waste after dumping. While the dumping itself is an instantaneous crime, failure to remove the waste is considered a continuous crime. The prescription of the continuous crime can start only once the illegal waste has been removed in accordance with regional waste law.
In a January 11 2011 judgment the Court of Cassation further ruled that failure to remove illegal waste constitutes a continuous crime irrespective of who owns the land on which the waste has been dumped. In a May 3 2013 judgment the Ghent Court of Appeal confirmed this jurisprudence. Even if an offender has no control over the land on which the waste has been dumped, that person should still be able to contact the new owner of the land to arrange for the removal of the illegal waste.
Pursuant to this jurisprudence, an offender cannot evade its criminal liability simply by selling the site on which waste was illegally dumped to a third party. Thus, the offender may be confronted with criminal charges years or even decades after it has sold the site (ie, the so-called 'boomerang effect').
However, an initial offender that sells the site is not the only party subject to criminal charges. The party acquiring the site can also be prosecuted as an offender if it is aware of the presence of the waste. This remains the case even if that party sells the site to another party.
In its May 2013 judgment, the Ghent Court of Appeal clarified that the risk of criminal liability relates to public order and cannot be excluded contractually. Notwithstanding this, the offender may seek to exonerate itself contractually for the civil consequences of illegal waste dumping (eg, reclamation of remediation costs). However, it will be up to the judge to determine whether such exoneration clauses remain valid in case of a criminal conviction. In this regard, much will depend on the factual circumstances of the case.
In order to avoid criminal and civil liability for illegal waste dumping years or even decades after the polluted land has been sold, landowners should investigate whether waste may be present on the site and dispose of any waste accordingly.
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 (firstname.lastname@example.org). The DLA Piper website can be accessed at www.dlapiper.com.