On June 5 2012 the Court of Cassation upheld a remarkable judgment of the Ghent Court of Appeal. The judgment is notable for several reasons, among which are its significant environmental law-related implications. The judgment is exceptional in that both the company itself and the members of its executive board were held criminally liable for the company's policy choices.

In this case, a company refrained from fulfilling its duties in the context of environmental law. Namely, the executive board refused to provide the necessary means and investment to maintain the environment and fulfil its legal duties regarding water purification. As to the reason why the company did not provide the necessary funds, it appeared that the executive board preferred to take cost-saving measures instead of fulfilling its legal obligations.

One of the defendants – a member of the executive board – claimed that he could not be held personally liable. He argued that only the executive board itself was responsible for its investment policy, and that the individual members were not responsible for the decisions that the executive board takes as an organ.

However, the court did not accept this argument, holding that the defendant – in his capacity as a member of the executive board – was criminally liable for abstaining from taking the necessary measures to comply with the environmental legislation. The court based its reasoning on the defendant's actual role in his capacity as a member of the executive board.

The court ruled that there was no clear indication that the defendant had protested against the executive board's poor decision making on subjects regarding environmental investment, nor was there any indication that had the defendant protested, his protest would not have been heard by the executive board as a whole.

Continuing with its legal and technical explanation, the court stated that an abstention can be considered criminal participation where the respective person or organisation has the duty to perform certain actions or prevent certain actions, and if its abstention is intentional, which renders it a criminal act. In this case, it was obvious that the executive board abstained from fulfilling its legal obligations in a systematic way, even though it had the necessary funds to fulfil the obligations. Thus, the executive board preferred to take cost-saving measures instead of fulfilling its legal obligations and the individual members had abstained from exercising their individual responsibility.

From an environmental law perspective, the confirmation of this judgment by the Court of Cassation may have substantial consequences. Since executive board members can be held personally liable, it is expected that the environmental legislation will be complied with in a more consistent and precise way. It is hoped that the present tendency of case law will entail a greater awareness of environmental legislation.

For further information on this topic please contact Dominique Devos at DLA Piper UK LLP by telephone (+32 2 500 15 56), fax (+32 2 500 65 07) or email (dominique.devos@dlapiper.com).