The responsibility of the legislative power and the injunction to legislate in environmental law : presentation of recent developments in Belgian case law

In Belgian law, the extra-contractual responsibility of the State in its legislative capacity is the result of a case-law developed over the years and which allows courts to say that Parliament has used its normative power in a wrongful manner.

In a judgment of December 15, 2022, the Belgian supreme court has added another piece to this picture, in judging that this wrongful normative action can have its origin in the “failure to comply with the legislator's general obligation of prudence”. This decision raises numerous questions, in particular whether is it up to a court to determine what constitutes, in the capacity of the legislator, a “normally prudent and diligent behavior”.

This recent case law finds particular resonance in matters of environmental protection. Indeed, on November 30, 2023, the court of Appeals of Brussels handed down its judgment in the Klimaatzaak case, the Belgian counterpart to the Dutch Urgenda case, in which the Court noted that by not respecting its climate commitments, the Belgian state did not behave in a normally prudent and diligent manner, and ordered the administration to take measures to bring an end to this infringement.

We would be very interested to discuss this with colleagues from other countries and to learn from their respective experiences on similar cases.