The Flemish Expropriation Decree: Ready for take-off?

by DLA Piper

DLA Piper

Since the sixth state reform, the regions have been entrusted with expropriation law in our country. Flemish Parliament used this power to adopt the new Expropriation Decree on 15 February 2017. The proposed entry into force date of this decree was 1 November 2017, but it was eventually postponed to 1 January 2018, for lack of implementing rules. On 27 October 2017 the Flemish Government eventually adopted the implementing decree governing a few practical arrangements of the Expropriation Decree. Hereinafter we will provide an overview of the new Expropriation Decree and the related implementing provisions.

Upon entry into force of this decree the (3) existing federal expropriation acts will no longer apply within the Flemish Region, except in case of expropriation by the federal government itself or by authorities mandated by the federal government concerning federal matters.

The basic conditions for expropriation remain unchanged:

  • The objective of the expropriation shall be of common interest (and can only pursue private interests on a secondary level)
  • The necessity of the expropriation: the objective of common interest can only be met through the expropriation of that specific property
  • Expropriation is only possible in exchange for prior and fair indemnification
  • The expropriating authority shall indicate on what legal basis (habilitation basis) the expropriation procedure is initiated

The Expropriation Decree contains a few remarkable clauses with regard to the expropriation procedure:

  • The Decree expressly provides that public authorities can also expropriate rights in rem other than ownership (for ex. the right of way) relating to an immovable property
  • The right to submit a request for 'self-implementation' is expressly provided by the Decree. After all, if the objective of the expropriation can be met by the owner himself and provided the owner is able and willing to meet this objective in the way the government had in mind, there is no need for expropriation. To that end, the owner needs to submit a “request for self-implementation” to the public authorities
  • Whereas in the past, municipalities and provinces used an implicit legal basis to proceed with expropriation, the Expropriation Decree now provides a general habilitation for municipalities and provinces, just like it does for the Flemish Government. To put it in other words, they can proceed with expropriation in those cases where they believe expropriation is required to elaborate infrastructure or policies with regard to municipal and provincial matters respectively
  • The Expropriation Decree provides an obligation to negotiate. The expropriating authority always needs to make a (demonstrable) attempt first in order to acquire the immovable property amicably. Expropriation is (nothing but) an ultimum remedium
  • The Expropriation Decree provides an enforceable acquisition of the non-expropriated part, under certain conditions
  • The Decree expressly provides a right of retrocession. Such a right can be exercised if the expropriated property is not used for the purpose it was initially expropriated for. In principle, it is up to the expropriating authority to notify the expropriated party of this right. However, if the project prompting the expropriation has not started within a five-year term, the right of retrocession will apply in any case
  • There will be a digital expropriation exchange platform on which the entire digital file can be consulted electronically, including all documents and all data on the procedure, and on which these documents can be exchanged

The Expropriation Decree makes a clear distinction between the administrative and the judicial phase.

The administrative phase mainly consists of the following steps:

  • Drafting an interim expropriation decision including an expropriation plan and a project fiche. This project fiche contains, among others, (i) a project plan including a description of the project and the works to be carried out; (ii) the deadlines, if any, for the execution of the works; (iii) the implementation conditions, if any, for the works; (iv) the management procedures of the public domain
  • A 30-day public investigation. During the public investigation, the owner can submit a request for self-implementation, giving rise to a new 70-day timeframe in which the owner needs to submit a justified request
  • Following the public investigation or following the additional 70 days, the expropriating authority has got 90 days to reply to the views, remarks and objections submitted and to take the final expropriation decision

Following the administrative phase, the judicial phase is initiated with the justice of the peace:

  • The justice of the peace shall rule on the validity of the expropriation within 3 months of the introductory session
  • Subsequently the justice of the peace shall appoint an expert in order to draft an advisory report about the final compensation
  • The justice of the peace shall rule on a provisional compensation. At that time, the ownership of the property is being transferred
  • Following the deposit of the expert report, the most diligent party can ask the justice of the peace in writing to evaluate the final expropriation compensation
  • Within 5 months of the request, the justice of the peace shall rule on the final expropriation compensation

Besides fine-tuning the administrative and judicial phase, the expropriation decree also provides better coordination with land-use planning procedures. As a matter of fact, the decree provides for the streamlining of the expropriation procedure with land-use planning procedures, resulting in time savings for the public authorities. The decree also makes all information available to the citizens in a single movement.

Finally, expropriation decisions can also be appealed before the Council for Permit Disputes. However, the Council for Permit Disputes shall lose authority, at least for appeals lodged by the holder of a right in rem or a right in personam to the immovable property subject to expropriation, as soon as the case is brought before the justice of the peace. This rule does not apply to a third interested party.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.