In a criminal case pending before the Criminal Court of East Flanders, Ghent Division (Belgium) concerning illegal hunting practices, a bird protection organisation (Vogelbescherming Vlaanderen) is acting as a civil party on the basis of the case law of the Belgian Supreme Court (see BELGIUM: PP and PSLV v. Gewestelijk Stedenbouwkundig Inspecteur and M vzw) and is claiming 1.900 euro for material and moral damages. That Court has established case law according to the fact that it is impossible to award the bird protection organisation a sum per bird killed as they belong to no-one. In the absence of statutory law, the moral damage of an environmental NGO can, according to the Court, only is compensated symbolically by awarding 1 euro compensation.
The Bird Protection Organisation argued that in doing so, it was discriminated in comparison with other legal and natural persons that are entitled to receive full compensation of their moral damages. The Court referred that constitutional issue to the Constitutional Court for a preliminary ruling.
The Constitutional Court comes indeed to the conclusion that the provision of the Civil Code (Art. 1382) concerning fault based liability is violating the Arts. 10 and 11 of the Constitution if it is interpreted in such a way that Environmental NGO’s can only claim one symbolic euro as compensation for moral damages. The Court argues that the moral disadvantage an environmental NGO may suffer due to the degradation of the collective interest in the defence, of which it is established, is in several respects special. In the first place that disadvantage does not coincide with the ecological damage caused, since ecological damage constitutes damage to nature, so that the whole of society is harmed. The damage concern indeed goods such as wildlife, water and air, belonging to the category of res nullius or res communes. Furthermore, the damage to non-appropriated environmental components can as a rule not be estimated with mathematical precision, because it involves non-economic losses. Under civil liability judges must assess the damage in concreto and they may base it on equity if there are no other means to determine it. The compensation must as much as possible reflect reality, even in case of moral damage. It should be possible that in case of moral damage of an environmental NGO the judge estimate the damage in concreto. He should take into consideration the statutory objectives of the NGO, the extend of its activities, its efforts in view of realising its objectives and the seriousness of the environmental damage at stake. Limiting the moral damage to one symbolic euro is in that respect not justified. It would harm in a disproportionate manner the interests of environmental NGOs that play an important role in guaranteeing the constitutional right of the protection of a healthy environment. So the Court is promoting another interpretation. And the Court to conclude that “Article 1382 of the Civil Code does not infringe Articles 10 and 11 of the Constitution, whether or not read in conjunction with Articles 23 and 27 of the Constitution and Article 1 of the First Additional Protocol of the European Human Rights Convention in the interpretation that it does not preclude to grant to a legal entity pursuing a collective interest, such as the protection of the environment or specific components of it, a compensation for moral damages to that collective interest, that goes beyond the symbolic sum of one euro.” That interpretation, that is consistent with the Constitution, is binding for the referring judge and in fact also for other judges confronted with similar cases. The judgement should put an end to diverging approaches in the case law. Some Courts have awarded in the past already full compensation for moral damages of environmental NGOs (see e.g. CITES crimes - Court of Appeal, Ghent, 7 May 2015)
(Contribution: Prof. Dr. Luc LAVRYSEN, Judge at the Belgium Constitutional Court)