Crime and Punishment in soil law

More specifically, the Constitutional Court checked article 58 of the Soil Ordinance of the Brussels Capital Region against the constitutional right to a reasonable compensation for the expropriated people and the principle of equality and non-discrimination. This judgment clarified the status of the so-called ‘innocent’ expropriated person. It concerns someone whose property has polluted soil, but who is not responsible for it.

The Constitutional Court ruled that the financial consequences of the soil pollution cannot be counted when deciding on the expropriation compensation, in case the soil pollution was not caused by the expropriated person and in case the expropriated person is not subject to remediation obligation.

An opposite opinion would not be in line with the principle of equality and the mandatory reasonable compensation for the expropriated person. To justify this, the Constitutional Court refers, amongst other things, to the mandatory nature of the expropriation.

In other words, the Constitutional Court deviates from the required market-based expropriation compensation, as soil pollution naturally exercises a downward pressure on the market value of the disputed property.

With the articles 119 and 119bis of the Soil Decree the Flemish soil legislation provides a similar regulation of its own. In accordance with these regulations, the remediation obligation legally passes to the expropriating government in case of expropriation of polluted soil. It is explicitly provided that the estimated soil remediation costs are of no influence when determining the interim expropriation compensation, in case the expropriated person is not subject to remediation obligation. When the occasion arises, the expropriating government has to appeal through civil way to those responsible for remediation.

In the end, due to this regulation, it is the pollutant who pays. For the expropriated people, the ‘no crime, no punishment’-principle applies.