BELGIUM Law and Practice Contributed by: Pieter Puelinckx, Yves Moreau, Melissa Verplancke and Gauthier Callens, Linklaters
Asset Deal Structure Asset deals are a triggering event in all regions. The seller must perform at least a soil survey prior to closing if specific listed activities likely to cause soil contamination are or have been carried out on the asset. If further surveys or soil remediation works are necessary, the clos - ing will, in principle, need to be postponed and may also require an undertaking to remediate the soil, backed by a financial guarantee, typically provided by the seller but potentially assumable by the buyer. Share Deal Structure Share deals do not constitute a triggering event and soil surveys or soil remediation works are, in principle, not required by law prior to closing. This may create information asymmetry as the buyer may not have (full) knowledge of contami - nation at the time of closing but the company it will acquire will keep its existing environmental liabilities. 2.8 Permitted Uses of Real Estate Under Zoning or Planning Law Information on the authorised use/destination of land plots is available on the websites of public authorities and through urban planning informa - tion from municipalities. Generally, urban plan - ning information must be provided to the buyer before closing an asset deal. Regional legisla - tion incorporates public-private co-operation aspects for development projects, with the Flemish region using an integrated permitting and planning process for complex projects, and the Brussels Capital and Walloon regions provid - ing urban planning certificates outlining condi - tions for building permit approval.
addresses the financially responsible party for pollution-related costs and damages). Regulatory Framework Each region has enacted soil legislation defin - ing the party responsible for soil surveys and remediation. • Flemish region – first on the operator of a listed activity, then the user (through personal or real rights), and finally the landowner. • Brussels region – the responsibility varies with the contamination nature and may fall on the current operator, the polluter, or the holder of real rights (including the owner). • Walloon region – the responsibility falls upon the volunteer to perform the obligation, then to the polluter the operator, real rights hold - ers, and, lastly, the landowner. Legal obligations under the soil legislation (eg, providing a soil certificate and performing soil surveys or remediation), are triggered by events such as real rights transfers, corporate restruc - turing, permit requests, etc. Civil Liability In all regions, the person carrying out soil sur - veys and remediation – whether voluntarily or following a legal obligation – can seek damages from the polluter under general civil liability law. Additionally, specific strict liability rules for pol - luters under the soil legislations may apply in certain scenarios. Whether a buyer, upon acquiring a real estate asset, will be legally obliged to perform soil sur - veys and soil remediation works depends on the structure of the deal.
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