Ecocide as a New Offence in Belgian Criminal Law

Over the last years, ESG (Environmental, Social, and Governance) litigation has gained significant attention, particularly with the case of Milieudefensie et al. v. Shell Plc in the Netherlands. The Hague Court of Appeal affirmed in its judgement of the 12th of November 2024 that Shell has a legal duty of care to reduce its greenhouse gas emissions, but overturned the decision of the District Court, which had imposed a specific reduction obligation on the oil company. This landmark case illustrates the growing importance of ESG in corporate governance.

Besides civil ESG litigation, the rise of criminal enforcement of sustainability is expected as well, driven by two key factors: the increasing use of criminal law instruments by both national and supranational authorities, and the ability of traditional criminal law provisions to effectively address ESG-related issues.

A notable development in strengthening the legal framework to enhance sustainability, is the inclusion of ecocide as a criminal offense in the new Belgian Criminal Code, which will enter into force on the 8th of April 2026. Even though the definition of ecocide is narrow, requiring serious, widespread, and long-lasting environmental harm, this new provision highlights the increasing recognition of environmental crimes, alongside the growing enforcement of environmental infringements by the Flemish government, amongst other authorities.

Moreover, initiatives under the European Green Deal are introducing new criminal law provisions and broadening the scope of existing criminal offenses. For instance, the recently adopted Corporate Sustainability Reporting Directive (CSRD) requires European listed companies and certain other large corporations to disclose information on social and environmental issues, as well as the impact of their activities on people and the environment. Non-compliance with these transparency obligations could result in criminal fines. If the violation is committed with fraudulent intent, it may even result in imprisonment for a period of up to one year. Additionally, the crime of falsifying financial statements has recently been expanded under Belgian criminal law to include the falsification of sustainability information. This aligns with a broader trend observed in other legislative measures.

In addition to new legislative tools, traditional criminal offenses in the Belgian Criminal Code (such as general fraud, subsidy fraud, forgery, …) may also apply to companies or individuals fraudulently exploiting sustainability concerns for personal gain. While these traditional provisions offer a broad framework for classifying certain environmentally harmful behaviors as criminal offense, they typically also require proof of fraudulent intent or, at a minimum, that the violations were committed knowingly and willingly.

A particular phenomenon is greenwashing, which occurs when companies make false or misleading claims about the environmental benefits of their products. This is not directly punishable under Belgian law. Nonetheless, false environmental claims or other acts of greenwashing could be an unfair or misleading business practice under Articles VI.93 to VI.103 of the Belgian Code of Economic Law, which could lead to substantive criminal fines. EU Member States must even strengthen these rules by 2026, in accordance with Directive (EU) 2024/82, aimed at empowering consumers for the green transition, ensuring that they can make informed choices on durability. Additionally, some greenwashing acts could for instance constitute the offence of deception in sales contracts, fraud or forgery.

While civil litigation remains the primary tool for enforcing ESG principles, criminal law is expected to play a substantial role too.