Op De Standaard Online: De Standaard - GDF Suez betaalt nucleaire heffing maar vecht die ook aan
Thursday 31 December 2009
De Standaard - GDF Suez betaalt nucleaire heffing maar vecht die ook aan
Wednesday 30 December 2009
Update on the current legal status of transit of natural gas in Belgium
Following the CREG’s decisions of 15 May 2008 and 6 June 2008 imposing regulated tariffs on transit of natural gas (transit meaning the border-to-border transmission of transport of natural gas), Fluxys, Distrigas and some other shippers instigated legal proceedings before the court of appeal of Brussels requesting the suspension and annulment of these decisions.
At the beginning of the summer 2008 Distrigas sold its transit subsidiary Distrigas & Co to Fluxys.
On 11 November 2008, in the procedure initiated by Fluxys, the court of appeal decided to suspend both decisions. In the court’s view:
(i) there is no legal framework allowing a different set of tariffs for transit and transport; and
(ii) the CREG does not have competence to qualify transit service contracts as regulated or exempted.
On 10 March 2009, the Belgian legislator adopted a new act amending the Belgian Gas Act, establishing a different tariff system for transit activities in Belgium and (ii) interpreting indirectly article 32.1 of the Second Gas Directive by specifying that all contracts concluded before 1 July 2004 between (i) Fluxys, Distrigas or a subsidiary thereof and (ii) transit shippers are exempted contracts in the sense of article 32.1 of the Second Gas Directive and article 15/19 of the Gas Act.
The CREG decides to seek the annulment of the Act of 10 March 2009 by the Constitutional Court. On 2 October 2009 it issues a press release that its decision was motivated by referring to “the need to clarify the legal situation of natural gas transit in the interests of the market and the end consumers".
A week later, on 8 October 2009, the European Commission opened an infringement proceedings against Belgium concerning its gas transit system because Belgian legislation would discriminate between transit and transport of natural gas.
Notwithstanding its own criticism and the arguments of the European Commission, CREG reaches a compromise with Fluxys on the new transport tariffs as from 1 January 2010. In the joint press release of 29 October 2009, CREG and Fluxys state that the new tariffs will be “highly competitive compared to others across Europe and at the same time provide a reasonable return on capital investment made by Fluxys”. In the decision of 22 December 2009, officially approving the tariff proposal by Fluxys, the CREG also approved the maintaining of the difference between border-to-border transport and internal transport.
In the beginning of December 2009, Ms Katrien Partyka, a christian-democrat member of parliament, and a few colleagues, submitted a proposal to amend the Gas Act aiming at the abolition of the Act of 10 March 2009, thus responding to the request of the European Commission. At the same time this proposal aims at lifting all exemptions for historical contracts as from 1 January 2010. This proposal is currently debated in the competent commission of the Parliament.
Wednesday 14 October 2009
Postponement of the nuclear phase out
On 13 October 2009 the Belgian federal government decided to postpone the nuclear phase out of the three eldest nuclear plants with 10 years. This would mean that in the soon to be adopted new regulatory framework all Belgian nuclear plants will close between 2022 and 2025.
As a favour in return, GDF Suez and Electrabel would have agreed to pay 170 M EUR per annum from 2010 until 2014. The other nuclear market participants (EDF Belgium, SPE and eventually E.ON) will have to pay the remaining 45 to 75 M EUR per annum (until 2014). GDF Suez will also invest in R&D on CCS and nuclear waste, in renewable energy and in energy efficiency.
At the same time, a 'Follow Up Committee' will be installed. This Committee will be composed out of representatives of the nuclear producers, the government and the social partners, and of representatives of the National Bank of Belgium. The main tasks of this Committee will be to yearly evaluate the production costs of nuclear energy and to evaluate the electricity market prices. It will also have to verify that the household prices of all suppliers will in no way be higher than the average of the prices in the neighbouring countries.
The decisions still must be transposed into formal legislation. Nevertheless, some ideas can raise concerns about the development of a liberalised energy market in Belgium and about the position of other market players (will they contemplate building new power plants? will they be able to raise their market share?). From a legal point of view, it remains to be seen whether this decision to postpone the nuclear phase out will stand the test of EU law and of Belgian constitutional law.
In any case, interesting regulatory and legal times lay ahead.
A free English translation of the relevant excerpt from the governmental declaration will be send to you at first request. Please e-mail me.
Thursday 8 October 2009
Transit and the European Commission
No further comment:
The Commission opens infringement proceedings against Belgium concerning its gas transit system
The European Commission decided today to commence infringement proceedings against Belgium as the Belgian Law of 10 March 2009 which lays down exemptions for natural gas transit contracts infringes Community law establishing an internal market in natural gas. Since 2004 under Community law the concept of transit has ceased to exist and all transmission of natural gas is now subject to the setting of tariffs to be determined by the independent regulatory authority of each Member State.
Non-discriminatory third-party access to the natural gas transmission network has become a central aspect of the opening up of the markets to competition. Community law no longer makes any distinction between transmission of gas involving transit of natural gas and the transmission of gas intended for national customers.
Article 2 of the Belgian Law of 10 March 2009 introduces exemptions from the general rules on access to the network for the transit of natural gas and provides for negotiated tariffs which apply for a period fixed by contract. In addition, the law makes it possible to set a fair profit margin for transit which is clearly higher than that applicable to other transmission activities and makes a distinction between existing and future installations.
The Law of 10 March 2009 discriminates between network users carrying on similar activities, a practice which is incompatible with Community law.
Community law concerning the internal market in natural gas provides for third-party access to the natural gas transmission market in order to enable new suppliers to enter the market in a transparent and non-discriminatory manner on the basis of tariffs negotiated between the gas transmission network operator and the regulator and published in advance. Since the markets were fully opened up to competition on 1 July 2007, alternative providers can thus offer to supply potential customers.
In the first phase of the partial opening up of the markets, Community law allowed access to be negotiated between network operators and suppliers, but this has not been possible since 2004. Since then, exceptions to regulated access have been strictly controlled under Community legislation.
Friday 2 October 2009
CREG seeks the annulment of the 2009 Natural Gas Transit Act
The CREG announced today that it has requested the Constitutional Court to annul the Act of 10 March 2009 (that, as you might recall, modified the tarifary system for new transit activities and that also excluded all pre 2004 transit contracts from the scope of the Second Gas Directive).
The Constitutional Court normally renders its judgement within a year from the lodging of the appeal.
Tuesday 29 September 2009
All concerned parties lodged an appeal against the 250M EUR nuclear tax
Tuesday 18 August 2009
New Flemish government and direct lines, closed distribution systems and private networks
Following the citiworks/Flughafen Halle-Leipzig judgement of the EC Court of Justice (Case C-439/06) and the compromise on the new directives for electricity and natural gas, allowing exemptions for closed distribution systems, the new Flemish Government in the coalition agreement agreed to "pay special attention" to these kinds of private initiatives.
Monday 17 August 2009
Flemish energy regulator consults the market on proposal for new technical code
The VREG, the Flemish regulator for electricity and natural gas had opened a public consultation on draft amendments to the Flemish electricity and natural gas technical codes.
The proposal aims at:
- Leaving out all reference to direct lines and direct pipelines, and private networks (or closed distribution systems) as these are not yet legally regulated in the Flemish region;
- Submitting all contracts and regulations of the distribution system operators to the review of the VREG;
- Giving sufficient attention to decentralised production;
- Inserting a conciliation procedure.
Wednesday 1 July 2009
Energy Undertakings Cannot Hold More Than 24,99% of the Fluxys' shares
On the basis of an act, voted by Belgian parliament last week and amending the Gas Act, at the latest on 31 December 2009 all supply undertakings, electricity producers, electricity suppliers, intermediaries, and affiliated companies of the aforementioned companies cannot hold solely or jointly more than 24,99% of the shares of the natural gas transmission system operator (Fluxys).
Moreover, the bye-laws and statutes of the transmission system operator cannot grant special rights to the aforementioned undertakings.
Wednesday 3 June 2009
CREG Examines EDF's Share In SPE
Following a question by federal representative Tinne Van der Straeten, the federal minister of energy, Mr Magnette, yesterday declared that the CREG, the federal energy regulator, is examining the take-over by EDF of Centrica's shares in Segebel, the majority shareholder of SPE. According to the minister, the CREG is looking at the consequences of the operation on the competition of the Belgian electricity production market. If the CREG would raise objections, it will propose the necessary measures to the Competition Council or the minister of energy.
Wednesday 27 May 2009
Belgian view on private networks after citiworks
Contrary to our neighbouring countries, the different competent authorities have not yet been able to formulate a vision on the consequences of the citiworks/Flughafen Leipzig-Halle judgement of the Court of Justice.
In response to a parliamentary question, the Belgian (federal) minister of energy, Paul Magnette, declared
- The federal state and the regions will meet to decide who will be competent;
- The minister will ask the CREG and the regional regulators to give their advice on the issue of private networks;
- The implementation of article 27bis of the Third Package Electricity and Natural Gas Directives on small distribution systems must also be discussed between the federal state and the regions.
Wednesday 13 May 2009
Levy On Unused Electricity Production Sites
In 2006, the Belgian federal legislator imposed a levy on unused sites for electricity generation. In 2008 the amount of this levy was approximately EUR 50M. The Constitutional Court declared that the imposition was in line with the Belgian Constitution.
The aim of the levy was to force the incumbent electricity producer, Electrabel, to sell some or all of this sites to competing energy undertakings.
In 2008, the federal legislator amended the amount of the levy. As from the entry into force, this amount would be increased with EUR 20M.
In response to a question of Katrien Partyka (CD&V), the minister of energy acknowledged that imposing the levy did not reached the goals of releasing or selling these sites to other energy undertakings. All sites are still property of Electrabel and remain unused.
Tuesday 5 May 2009
New legislation in the Flemish Region
Last Thursday the Flemish Parliament adopted four new energy related Decrees.
- A decree modifying the existing Energy Performance of Buildings Decree of 22 December 2006 (EPB Decree);
- A decree modify the system of renewable energy certificates (green electricity certificates);
- A decree coordinating all the existing decrees on energy (the “Energy Decree”), comprising a new chapter on the application of the EU Emission Trading System/ETS on aviation; and
- A decree on the deep subsoil, aiming at regulating the exploration and extraction of hydrocarbons (including Coal Bed Methane, CBM) and possible new initiatives on Carbon Capture and Storage, CCS.
Tuesday 28 April 2009
New Proposal for Gas Code of Conduct
Sunday 29 March 2009
Legal500
What does the Legal500, edition 2009, say about my practice:
Tim Vermeir has moved from Loyens & Loeff to Publius where clients include Wingas GmbH, carving out a key niche in EU energy law, as an alternative to larger practices in dealing with regulators.
Wednesday 18 March 2009
Amendments To Flemish Renewable Energy Support System
The Flemish government submitted a proposal for amendments of the Flemish Electricity Decree aiming at a modified support system for renewable energy. If this proposal will be adopted by parliament, the following system will be applicable as from the entry into force of the decree:
1. PV-installations on domestic buildings that are not properly isolated will not be eligible for green electricity certificates that can be used by electricity suppliers to fulfill their obligations to hand in a number of certificates in relation to the amount of electricity supplied in the preceeding year. Consequently, no minimum support can be given to these certificates.
2. The minimum support that distribution system operators must give to producers of electricity from PV-installations will decrease after 1 January 2010:
350€ in 2010 during 20 years;
330€ in 2011 during 20 years;
310€ in 2012 during 20 years (and an evaluation of the non-performing peak);
290€ in 2013 during 15 years (unless otherwise decided by the Flemish government);
250€ in 2014 during 15 years;
210€ in 2015 during 15 years (and an evaluation of the non-performing peak);
170€ in 2016 during 15 years (unless otherwise decided by the Flemish government);
130€ in 2017 during 15 years;
90€ in 2018 during 15 years (and an evaluation of the non-performing peak);
50€ in 2019 during 15 years (unless otherwise decided by the Flemish government);
10€ in 2020 during 15 years.
Thursday 5 February 2009
New Transit Act Almost Finally Adopted By Parliament
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