Asked for a preliminary ruling, the Constitutional Court concludes in its judgment no. 50/2026 of 23 April 2026 that article 30, § 1, paragraph 1, 2° of the Walloon decree of 1 March 2018 concerning soil management and soil remediation violates articles 10 and 11 of the Constitution, in so far as it prohibits the transferee of a permit from freeing themselves from their obligations following a preliminary investigation when the contamination is the responsibility of a solvent third party who is the transferor of the permit.
The operator as the obligation holder for the execution of a preliminary investigation
For the record: the operator of an installation or activity that poses a risk to the soil (in the sense of the decision of the Walloon Government of 4 July 2002) may be designated as the obligation holder regarding soil management and soil remediation as specified in article 19 of the decree of 1 March 2018 concerning soil management and soil remediation (the “Decree”).
One of the obligations resting on the operator is to carry out a preliminary investigation of the soil in one of the cases listed in article 24 of the Decree, namely when the operator ceases their activities or when the permit authorising these activities expires.
When the results of the preliminary investigation show that the threshold values for the analysed substances are exceeded, the operator is in principle required to carry out a characterisation study to describe and locate the soil contamination (Article 44 of the Decree), the results of which may obligate the holder to carry out a remediation project (Article 50 of the Decree).
Deviation from the obligations arising from a preliminary investigation
However, the Walloon legislator has provided in Article 30 of the Decree a series of deviations that allow the holder to be exempted from the obligations arising from the execution of a preliminary investigation.
One of the provided deviations concerns the case in which the permit holder can demonstrate that “ the pollution is the responsibility of a solvent third party, excluding the one who transfers the permit” (Art. 30, § 1, paragraph 1, 2°).
The facts and the procedure that led to the preliminary question
The preliminary question submitted to the Constitutional Court arises precisely in a procedure before the Council of State, in which the requesting party, after it had ceased the operation of activities in the field of the distribution of hydrocarbons, for which an environmental permit had been issued, was presented with a decision from the government in which its exemption from the continuation of the obligations for soil remediation was denied on the grounds that the third party who was actually responsible for the established contamination was the transferor of the said permit (i.e. the previous operator).
The spirit of the reform of the soil decree of 1 March 2018
The soil decree of 1 March 2018 regarding soil management and soil remediation is framed in particular by the objective of ensuring « a better alignment between the obligations, the potential permit holders and the exemptions », while it aims « to maintain the application of the polluter pays principles ” (Parl. St., Walloon Parliament, 2017-2018, no. 984/1, p. 5).
Strengthened anchoring of the principle ‘the polluter pays’
Although the parliamentary work does not explicitly base the exemption mechanism provided for in Article 30 of the Decree on the principle ‘the polluter pays’, it must be noted that this arrangement is in line with the said principle, in so far as it allows the obligation holder regarding soil management to be exempted if he succeeds in demonstrating that a third party is the cause of the pollution.
However, the exemption scheme appears to be incomplete, even contradictory, in that any possibility of exemption is excluded when the third party responsible for the pollution is the same as the transferor of the environmental permit, thereby allowing the actual polluter to evade the obligations for investigation and remediation.
As the Court concludes, Article 30, § 1, first paragraph, 2°, of the Decree at least creates a difference in treatment that is incompatible with Articles 10 and 11 of the Constitution between the holders of the obligations referred to in Article 19 of the Decree, depending on whether they operate their establishment as a transferee of an environmental permit or not.
In practice: legal certainty in administrative matters without prejudice to contractual mechanisms
In practice, when the transfer of an environmental permit that authorises a risky activity for the soil is accompanied by the transfer of the property in which the activity is carried out, the asset transfer agreement will often strictly regulate the rights and obligations of the parties regarding soil investigation and remediation.
That said, the agreements between the parties, given the relative effect of the agreement, are not enforceable against the administrative authority, unless the law expressly provides for a mechanism to that effect. The administrative authority will address the party it deems responsible for a contamination in application of the law and not in application of the agreement between the parties.
Based on the discussed ruling, the acquirer/buyer can, under certain conditions, compel the government to release him from the “soil obligations”, regardless of the commitments (or lack of commitments) between the parties, due to the fact that the established contamination was caused by the transferor/previous operator.
This is, in our view, the most important practical contribution of this ruling, which should strengthen legal certainty regarding the allocation of obligations concerning soil management.
Finally, it should be emphasised that this ruling does not create general immunity for the acquirer of the permit regarding the “soil obligations”. When the acquirer faces an insolvent transferor or mixed contamination, he cannot, at least partially, be exempted from his obligations.