Carole M. Billiet. Lappendekens in de rechtshandhaving. Naar een publiekrechtelijke sanctionering van het omgevingsrecht [Patchworks in law enforcement. Towards a public law sanctioning of environmental, land use and cultural heritage legislation], in Carole M. Billiet & Luc Lavrysen, In de roos. Doeltreffende sanctionering van omgevingsrecht, Brugge, die Keure, 2015, 1-77
2009-2010 saw a sweeping change of the environmental enforcement legislation in Flanders. The parliament opted for a sanctioning system with a fully-fledged administrative sanctioning track organized next to the criminal sanctioning track. The previously existing differences in sanctioning options between both tracks were dimmed: the criminal courts, traditionally oriented on punishing, were given new possibilities to impose remedial sanctions and the administration, traditionally oriented on remedial action, was given the administrative transaction and fine to punish. The new Decree on Cultural Heritage that entered into force on January 1st 2015 and the new Decree on land use law enforcement that will enter into force in a nearby future (probably early 2017) copied their enforcement systems on the 2009-2010 Environmental Enforcement Decree, organizing equally strong criminal and administrative sanctioning tracks, each equipped with punitive as well as remedial sanctioning tools, with a set of similar tools existing in both the criminal and the administrative sanctioning track.
Whereas the three sanctioning systems display outspoken similarities, they also have a puzzling amount of small to bigger differences. The differences exist at the level of the toolkits as a whole and in the shaping and articulation of individual tools. These differences make for different accents in enforcement strategies and create uneven possibilities and distinct limitations in tool use.
This paper analyses the effectiveness of the public law sanctioning systems created. Firstly seven criteria to evaluate the effectiveness of sanctioning systems are identified. Next follows a characterization of the rules (obligations to do / not to do) to be complied with under each decree – environmental law, cultural heritage law and land use law – from an enforcement perspective. Then an overview and first comparative analysis of the sanctioning toolkits is made. The rules getting priority in the enforcement system are identified. The division of tasks between the criminal and the administrative sanctioning track is studied, with regard to punitive as well as remedial action. The potential of each sanctioning toolkit is assessed taking into consideration the enforcement actors chosen to trigger sanctioning action, the toolkits capacity to achieve smart (cost-effective) enforcement and its amount of tool design combining punitive sanctioning with slack for remedial action.
Full publication (Dutch) here.