Funding as an Element of Access to Justice in Environmental Protection Cases in Belgium: A Socio-Legal Analysis

Abstract

Like many other countries, in the last years Belgium has seen a rise in environmental and climate litigation. At first sight, one could argue that this proves that claimants in environmental and climate cases manage to find their way to court. Following some legislative amendments, the legal standing of litigants acting in the collective interest in Belgium seems to have improved. However, this constitutes only one part of the story, and a closer look at some high-profile environmental and climate cases in Belgium suggests that litigants acting in the collective interest often rely on crowdfunding or other forms of private funding to be able to pay the fees. This chapter investigates whether the legal framework currently in force in Belgium ensures a satisfactory level of equality when it comes to access to funding for parties acting for the protection of the environment. To establish what a “satisfactory” level of access to justice could be, we rely on the multi-layered understanding of this right as established by the relevant supranational and international legislation and case-law, as well as by the Belgian Constitution as interpreted by the Belgian constitutional court. Through a small selection of cases from Wallonia, Brussels and Flanders and semi-structured interviews with claimants acting for the protection of the environment, we offer an overview of the funding instruments and modalities used in practice to bring environmental protection cases before Belgian courts. Our contribution is meant as an exploratory study into the topic of funding for these types of cases. In doing so, we point out how the legal framework on legal aid (public funding) currently in place in Belgium proves unable to guarantee access to justice in environmental matters, resulting in litigants looking for other, often private, sources.