Special Expropriation Law – Blog III: Compensation Procedure in Expropriation

In this blog series, we discuss the main aspects of expropriation law.

In the first blog of this series, we discussed the change effective from 1 January 2024, whereby expropriation no longer occurs through a Crown decision but through an expropriation order and the associated administrative procedure. In the second blog, we covered the criteria for expropriation. This third blog focuses on the procedure for determining compensation.

Once an expropriation order is announced, the expropriator can request the court to determine the associated compensation. Unlike the determination of the expropriation order (which is established by the administrative court), the compensation is determined by the civil court, hereafter referred to as ‘the court.’ The expropriator can request the court to determine the compensation even before the expropriation order becomes irrevocable. Whether this is advisable is beyond the scope of this blog and will depend on the specific situation.

If the expropriation order becomes irrevocable and the expropriator does not submit a compensation request within twelve months, the expropriation order lapses (Art. 11.12 Environmental Act). In other words, the expropriator cannot delay submitting the compensation request for too long.

In the request, the expropriator specifies the compensation offered to each interested party. It provides an overview of how the expropriator intends to compensate those affected by the expropriation. In response to the request, interested parties can submit a defense if they believe the proposed compensation is insufficient.

The court then schedules an oral hearing (before the expert report), during which parties can also express their views on which experts should be appointed by the court to advise on the compensation.

The next step in the procedure is the appointment of experts by the court. Article 15.39 of the Environmental Act requires the court to appoint an odd number of experts to provide advice on the compensation. The court cannot deviate from this requirement. The court also appoints a judge-commissioner who acts as the point of contact for the experts and parties during the preparation of the expert report.

The appointed experts then visit the site (descente) to assess the location and situation of the expropriated parcels. A judge-commissioner and a clerk are also present (Article 15.40 Environmental Act).

After the site visit, the court will determine a provisional compensation for each interested party as soon as possible. This provisional compensation serves as an advance on the final compensation.

Meanwhile, the experts conduct their investigation and will produce a draft expert report with their compensation estimates. In practice, interested parties and the applicant (expropriator) are given the opportunity to respond to the draft expert report. The final expert report is then submitted to the court.

The procedure continues with the court scheduling another oral hearing where parties can further explain their positions. The experts are also present to answer any questions from the court about their report or to provide their perspective on the parties' positions.

After the oral hearing, the court issues a final decision on the compensation (Art. 15.45 Environmental Act). The previously granted advance is deducted from the compensation in the final decision. The costs of the compensation procedure are borne by the expropriator. If legal and other expert assistance costs incurred by an interested party are reasonable, they are also eligible for reimbursement.

Unlike typical civil procedures, there is no right of appeal against the court's final decision. Only an appeal in cassation is possible (Art. 15.48 Environmental Act) within three months of the court's decision.

This concludes the civil compensation procedure. However, to effectuate the expropriation, ownership transfer must still occur. This is done through the execution of the expropriation deed by the notary. The notary must always check whether all requirements for the execution of the expropriation deed have been met (Article 11.16 Environmental Act). The expropriation deed is signed by the expropriator, and the notary ensures its registration in the public registers, whereby the expropriator acquires the expropriated property.

The above outlines the compensation procedure in a nutshell. It is well known that an expropriated owner must be compensated. However, others (third parties) can also suffer losses due to expropriation. The fourth (and final) blog in this series will address this group and how expropriation law affects them.

Need help and advice on expropriation issues? Contact us.