New rules on transit of natural gas published in the Belgian official journal

On 29 April 2010, parliament adopted a majority proposal to amend the Gas Act and to withdraw the Act of 10 March 2009. This Act is published in the Moniteur belge/Belgisch Staatsblad of today.

The 2009 Act provided for a different tariff regime for transit activities compared to transport activities. Following fierce reactions from the Belgian energy legislator CREG and letters from the European Commission, parliament decided to withdraw this differentiation.

The 2010 Act also abolishes the interpretation of article 15/19, reiterating the exemption of article 32.1 of the Second Gas Directive for historical transit contracts, concluded on the basis of the Transit Directive 91/296/EEC.

Finally, the 2010 Act stipulates that the exemption for those historical contracts expires on 2 March 2011. The executive can decide on an earlier date. Given the resignation of the federal government and the upcoming elections and coalition talks, this appears unlikely.

New rules on transit of natural gas published in the Belgian official journal

Decision on Belgian internal burden sharing agreement postponed

The resignation of the federal government also has consequences for the agreement of the internal burden sharing agreement between the federal state and the three regions in view of reaching the EU climate targets. This decision (and the communication of this decision to the European Commission) had to be reached on 30 June 2010. The European Commission accepted a postponement until 30 December 2010.

Decision on Belgian internal burden sharing agreement postponed

The postponement of the nuclear phase-out postponed

Due to the resignation of the federal government the legislative decision to amend the Act of 2003 that set the phase-out of the nuclear power plants is postponed awaiting the result of the general elections on 13 June 2010.

In October 2009, the federal government reached an agreement with GDF Suez on the postponement of the nuclear phase-out for the three eldest nuclear power plants (Doel I, Tihange I and Doel II). By way of compensation it was agreed that the nuclear operators (GDF Suez and EDF-SPE) would be a yearly contribution of 215-245 million euro until 2014. As from 2014 the yearly contribution would be set by a special follow-up committee. GDF Suez also promised to maintain employment in Belgium and to invest in renewable energy.

Earlier this year, the European Commission send a five pages long questionnaire to the Belgian government, raising substantial questions on the agreement in principle. The Belgian minister of energy responded to this questionnaire beginning of April.

Although the minister invoked a force majeure situation (insufficient production capacity if the three plants would shut down in 2015) and thus seemed to head for a prolongation of the life cycle by means of a simple royal decree, the minister clearly indicated in its response to the European Commission that the agreement in principle would have to be translated into a formal legislative text, adopted by parliament. The minister was preparing a draft text.

The resignation of the government makes that the resigning minister cannot propose such legislative text to its colleagues in the resigning government. The issue of the nuclear phase-out will be part of the negotiations in view of the formation of a new government.

Some political parties (amongst others the Flemish social-democrats and the Flemish and Walloon green parties) have indicated that they will oppose the execution of the agreement between GDF Suez and the resigning government. From their side, the nuclear sector indicated that the agreement would be binding in principle and that a new government cannot alter the principle of postponement engaged upon by the former coalation.

The postponement of the nuclear phase-out postponed

European Commission bombards Belgian government with questions on nuclear deal with GDF Suez

On 13 October 2009 the Belgian federal government decided to postpone the nuclear phase out of the three eldest nuclear plants (Doel I, Doel II and Tihange I) with 10 years. This would mean that all Belgian nuclear plants will close between 2022 and 2025.

As a favour in return, GDF Suez and Electrabel (hereinafter 'GDF Suez') would have agreed to pay between 215 and 245 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 neighboring countries.

During a meeting in March 2010 between DG Energy's representatives and the cabinet of the Belgian minister of energy, DG Energy handed a long list of questions on the agreement between GDF Suez and the Belgian state. Amongst a lot of others, following questions appear to have been asked: Did the Belgian government contact other energy market participants? On which basis the contribution of 215 to 245 M EUR per annum was calculated? Is there a link with the profits of GDF Suez as a result of the postponement? Did the Belgian government calculate the value for GDF Suez of such a postponement? What were the results of such calculation and the eventual studies on which it was based?

The Belgian government must respond by 8 April 2010.

European Commission bombards Belgian government with questions on nuclear deal with GDF Suez

Council of State decides that non-Flemish green electricity certificates cannot be used in the Flemish Region

In different decisions of 1 February 2010 the Council of State dismisses the argument invoked by electricity suppliers that the Flemish energy regulator VREG has to accept non-Flemish green electricity certificates (groenestroomcertificaten) allowing the suppliers to comply with their obligation to hand in a certain amount of those certificates in relation to the electricity they supplied the preceding year.

The Council of State explicitly refers to article 25 of the Flemish electricity decree. According to the Council of State, the Flemish government only has to accept such non-Flemish green electricity certificates if the underlying non-Flemish regulation gives the same guarantee as the Flemish regulation.

Council of State decides that non-Flemish green electricity certificates cannot be used in the Flemish Region

Fluxys finally appointed as system operator

By ministerial decrees of 23 February 2010 Fluxys has been appointed as definitive transport system operator and as operator of the storage facilities in Loenhout. By ministerial decree of the same date, Fluxys LNG has been appointed as operator of the LNG terminal in Zeebrugge.

All three ministerial decrees were published in the Moniteur belge/Belgisch Staatsblad of today.

Fluxys finally appointed as system operator

Congratulations

I warmly congratulate colleague and energy law expert Prof. Marc Van der Woude with his nomination by the Dutch government for the post of Judge at the EU Court of Justice.

Congratulations