ESG – Environmental, Social and Governance

Belgium's new Civil Code: Implications for tort law and sustainability

Published on 26th Mar 2024

This is the second in our ongoing series looking at the changes to Belgian law due to the recent reforms to the Civil Code (Book VI). You can find the introduction to the series here.

Industrial landscape with different energy resources. Sustainable development.

One of the new provisions of Book 6 is on the duty to prevent damages. Notably, art. 6.28 stipulates that the costs of urgent and reasonable measures taken by the injured party to avoid imminent damage or to prevent the aggravation of damage, will be charged to the person liable or the person who would have been liable, if the damage had occurred, even when these measure have been fruitless. The judge can issue an order or prohibition to the person liable, aimed at preventing the worsening of the damage that could be caused by the repetition or continuation of the harmful event.

The new Book 6 implicitly also codifies one of the leading legal principles of environmental law, the prevention principle. The latter principle implies that environmental damage should as much as possible be prevented rather than repaired. It requires preventive measures to be taken to anticipate and avoid environmental damage before it happens. The prevention principle is also codified in art. 191 TFEU.

On the other hand, the new Book 6 is criticized for only focussing on the damage compensation for personal interests (art. 6.24), and not on the compensation of collective interests. The latter would prevent an effective claim for environmental and ecological damages, especially taking into account the Belgian case-law as it now stands. In the parliamentary preparations this criticism is dismissed, referring to the fact that the right to a healthy environment is recognized in various national and international instruments. Consequently, there would be no doubt that ecological interests are protected by the Belgian legal order.

Book 6 also stipulates that a tort is determined by taking into account the state of technology and scientific knowledge (art. 6.6, §2, al. 2, 3°). Producers are specifically exempt from liability, if they can demonstrate that it was impossible to discover the existence of the defect to their products, based on the state of scientific and technical knowledge at the time the product was put into circulation (art. 6.48, al. 2, e)). This may also make it more difficult to claim compensation for certain environmental damages.

The legal liability in the field of nuclear law is not modified by the new Book 6, but remains regulated by the Act of 22 July 1985.

Considering the above, Belgian tort law has been reformed to more substantively take into account sustainability, but it has been noted that the Belgian legislator could also have gone further than it has. The new legislation will have a significant impact on the liability of contractors and the general legal position of any auxiliary, taking into account the distinct measures for dealing with environmental damages.

Lire ici en français.

Lees hier in het nederlands.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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