The right of retrocession and the economic expansion legislation

The right of retrocession and the economic expansion legislation

In its decision no. 132/2014 of 25 September 2014, the Constitutional Court answered a question that had been referred to it for a preliminary ruling as to whether it is constitutional for the Act of 30 December 1970 on economic expansion to have excluded the right of retrocession of lands.
 
This right of retrocession is provided for in (amongst others) the Expropriation Act of 17 April 1835 and is also accepted in connection with other expropriation acts.
 
The right of retrocession can be exercised if the government is no longer pursuing or no longer can pursue the objective for which the lands were expropriated in the first place, or has waited for an unreasonably long time without beginning to implement the expropriation objective.
 
The aforementioned expansion legislation allows the government to expropriate lands with a view to creating industrial zones. The right of retrocession is excluded in article 30 of the Expansion Act.
 
Amongst other things, the Flemish and Walloon Regions argued that the lack of this possibility in the expansion legislation was justified because this makes it is possible to build up strategic reserves that can be turned into industrial zones when the time is right.
 
In decision no. 132/2014, the Constitutional Court ruled that it is contrary to the constitutional principle of equality and non-discrimination for the expansion legislation not to include a right of retrocession for expropriated parties.
 
Although the aforementioned Expansion Act had already been repealed in the Flemish Region some time ago, the relevance of this decision is must be seen in the fact that specific statutes on the basis of which expropriation can be exercised will no longer be able to exclude the right of retrocession.
 
Thus the right of retrocession in the common law of expropriation cannot be eliminated without sound reasons in specific legislation.