Proposition 50K1052

Projet de loi portant modification de la loi du 29 avril 1999 relative à l'organisation du marché de l'électricité, de la loi du 12 avril 1965 relative au transport de produits gazeux et autres par canalisations et du Code des impôts sur les revenus 1992.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Jan. 22, 2001

Official page

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Status

Adopted

Requirement

Simple

Subjects

direct tax electrical energy single market corporation tax

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo PS | SP Open Vld N-VA MR FN VB

Abstained from voting

LE

Party dissidents ¶

• Richard Fournaux (MR) abstained from voting.

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Discussion ¶

May 23, 2001 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, this bill aims primarily to enable the execution of various measures adopted on 5 April 2000 by the Council of Ministers in the context of the liberation of the electricity market, the legal framework for this liberation being fixed by the law of 29 April 1999.

The important measures brought by this project are: 1. The maintenance of separate accounts at the level of the production activity, between the production lines of nuclear origin and those of fossil or any other nature. Therefore, it is not a matter of establishing profitability studies for each sector separately, including that of renewable energies, as suggested by Mr. Poncelet, as this would then involve incorporating waste management costs into the costs of producing nuclear electricity, the costs of the greenhouse effect into the costs of producing fossil electricity, and compensating for the current surplus cost of renewable energy by its positive environmental effects. The object is therefore here limited to the identification of the accounting relating to electricity produced from nuclear energy.

2nd Control of the accounts of companies active on the regulated market, on the one hand, and liberalized, on the other. This is to prevent captive consumers from bearing the costs to be borne by eligible consumers, thus allowing CREG to have a precise idea of the possible existence of cross-subsidies between the different sectors. The cost of electricity produced by nuclear energy should be included in the overall accounting of nuclear power plants and the funds injected into the nuclear industry should not be used to finance other energy-producing industries. These measures are further justified by the fact that the nuclear power plants located in Belgium have become in part owned by international groups, as a result of the opening of the electricity market. It is worth reminding here that there is no cross-subsidy in the field of alternative energy since any incentive to promote renewable energy can only be public.

3 of 3. The inclusion in the general council of the CREG of representatives of environmental associations specializing in energy. They must be representative and willing to work constructively. It is worth remembering that the addition also planned of representatives of wholesale and small consumers as well as representatives of electricity producers from renewable energy and quality cogeneration does not require modification of the law. They are not forgotten in this bill.

4 of 4. The placing at the disposal of the CREG of judicial police officers dependent on the Ministry of Economy for the investigation and finding of violations of the law or arrests taken in execution of the law.

This bill also aims to establish the legal basis that will ensure the collection of data necessary for the preparation of energy balances of our country. Belgium will be able to comply with its international commitments to the European Union, the International Energy Agency and the United Nations. The opening of a market, now liberalized, will no longer allow, in fact, to obtain the necessary information on a voluntary basis from operators as it was so far.

The relations between the CREG, which has an autonomous status, sui generis, and the energy administration must both respect the specificity of each without hierarchical links being established and without one depending on the other for access to information and the fulfillment of its tasks. This was clarified by the adoption of an amendment by Mr. and Poncelet.

Finally, this bill provides for the limitation of imports from a country for which there is no reciprocity and which closes its market. It empowers the Minister to hang a safeguard measure in the event of a crisis in the electricity market and provides for an annual report of the CREG for 1 April of each year. During the examination of the bill, the government submitted various amendments. Thus, a first amendment by the government allows the transmission system operator (the GRT) to conclude a cooperation agreement with the regions in order to eventually entrust it with the management of local transport or distribution networks at a voltage level of 30 to 70 kilovolt.

It appeared that the differentiation between these two terms – “local transport” and “distribution” – was imperative, inasmuch as the Walloon Region and the Flemish Region differently designate the same reality. This was explained in the sub-amendments. Schalck and Mrs. Creyf.

This government amendment has triggered a long technical debate, aimed at verifying that this authority granted to the GRT would in no way affect the regional competence in the management of distribution to individual customers.

It is therefore a question of balanced integration of the "electric wire" management of the mesh transport network in balance with the entire mesh transport network under federal jurisdiction. It is important to avoid the problems that are currently faced in California.

Distribution networks that come to the consumer are, on the other hand, "branch networks" that can be managed by several operators independently.

For these various reasons, Mrs Creyf’s sub-amendment to characterize the local transport network in Flanders in terms of distribution networks starting from 20 kV instead of 30 kV was rejected.

Finally, several articles were added in order to establish, in the Corporate Tax Code of 1992, a tax neutrality regime for any partial splitting operation, in the event that Electrabel or any other company active in the electricity market would resort to a partial splitting.

The provisions of tax neutrality in the event of total division already affect all companies. Since 6 February 2001, the transactions referred to in the amendments deposited are included, in the new Corporate Tax Code, in the transactions assimilated to merger or division.

Therefore, the amendments under review tend to clearly clarify all the tax consequences induced by a partial splitting operation.

The aim of this introduction of tax neutrality for partial splitting is to prevent the end consumer from having to assume the indirect effects on the cost of the transmission of electricity.

These amendments were accepted without seeking the opinion of the State Council, insofar as they were drafted in close collaboration with the Ministry of Finance and insofar as they resemble those introduced during the previous legislature when the tax status of electricity distributors was amended.

The bill was adopted unanimously in the committee and sparked a discussion on the state of progress of the work on public service obligations, the maintenance of municipal income, the composition of the transmission system operator and the timetable for market liberalization.

The report covers all these elements and I invite you to refer to them.

Mr. Speaker, Mr. Secretary of State, colleagues, a number of amendments to the Electricity Act of 29 April 1999 were needed, especially to regulate a number of technical matters. In addition - and this is not insignificant - the Code of Income Taxation is being thoroughly amended in the context of the division of the shareholders of the transmission network of electricity. On this point that is a fiscal construction, Mr. Leterme will go deeper into it. Mr. Secretary, I would like to address 4 points. First, the present bill is an implementation of the decision of the Council of Ministers of 5 April 2000. That is more than a year ago. The aim was to accelerate the liberation of the market. Mr. Secretary of State, you know my position and I know your answer. However, I would like to point out once again that so far the liberalization of the market is no more or no less than a theoretical construction, a fiction because the operator for the Belgian high-voltage network has not yet been appointed. The appointment of the network operator is repeatedly delayed. The appointment was scheduled for the spring of 2001. The spring is here, but it is still waiting for the independent network administrator. Producers and municipalities have concluded a draft protocol. However, it all takes a very long time, two and a half years after the passing of the law.

European Commissioner for Energy Loyola de Palacio wants an agreement on accelerated liberalization for the EU summit in Barcelona in March 2002. This means that the Commission relies on the Belgian Presidency to help advance the matter. It is a little cynical to know that Belgium is one of the bad learners in terms of liberalization of the electricity market.

The way in which the liberation of the market takes place in our country is little transparent and is a procession of Echternach. Only very large companies can freely negotiate their purchase of electricity and its price. According to Ms. Vanderveren of the CREG, both companies and foreign electricity companies would hesitate to buy or sell freely because of the current legal uncertainty. Their

For the CVP, it is not the release itself that matters, but the consequences it must have for consumers and SMEs. The free market should lead to cheaper prices for families and SMEs. The uncertainty about market organisation, the unclear legislation and all kinds of regulatory bodies at regional and federal levels make us ask more and more questions about the future price change. To date, the government has hidden itself too much behind the CREG, the control committee, the producers, although the group of experts appointed by this government has already formulated concrete proposals for a faster and better opening of the market. However, there is nothing moving and the politicians are clearly lacking in this.

The second point of the bill provides for the accounting separation within the production activities between the production of nuclear origin and the production of fossil or other origin. Since 60% of the electricity production is of nuclear origin and there are still many remaining nuclear liabilities to be covered by the industry, this separation is ⁇ meaningful and relevant.

Mr. Secretary of State, will this accounting separation also give us advantages in terms of nuclear liabilities and will the separate accounting eventually bring the financing of BP2 a little closer? You know that in this case we are allies.

Third, Article 8 of the draft amends Article 9, 1° of the Electricity Act of 29 April 1999, which primarily formulates the tasks of the network operator. The responsibilities of the network administrator are extended to include local transport. This is motivated by technical reasons, as networks below 70 kV must be able to be managed together with networks of higher voltage. You know that we have submitted an amendment because we did not fully agree with the way local transport is defined in your bill. We then amended that one could actually better refer to the regional powers and the regional decrees. The majority submitted a different proposal. We continue to regret this because the amendment submitted by the majority could still cause problems in the future.

The fourth point concerns the assistance of officials of the Energy Administration. I would like to emphasize again the need for clear and clear relationships. As everyone knows, the Federal Energy Administration is struggling with a shortage of skilled personnel. In addition to the problem of the hierarchical relationship between a parastatale on the one hand and a government that works directly under the minister on the other hand, we are confronted with the paradox that the members of the CREG, an autonomous parastatale with a statuut sui generis, can recruit officials of the lower Energy Administration, while several officials of this Administration have moved to the CREG through promotion. After all, due to the statutory and pecuniary differences between the ad hoc organization, such as the Control Committee for the Regulation of the Gas and Electricity Market, the CREG, the FANC and even the regional governments on the one hand and the Federal Energy Administration on the other, the latter administration becomes very unattractive to the staff.

The same problem will also arise in the effective transposition of Article 7 on the collection of energy data. I have also addressed this issue in the committee, Mr. Secretary of State. You then minimized the problem and said there would be no problems. I would like to draw attention once again to the fact that the problems associated with the various organizations could greatly hypochondrate the effectiveness of the proposed texts.

As mentioned above, the fifth point is followed by the amendment on the separation of the network operator, but I will leave this subject to colleague Yves Leterme.

Mr. Speaker, dear colleagues, I would like to emphasize above all the advance that constitutes the bill amending the law of 29 April 1999 on the organisation of the electricity market and which is intended in particular for the establishment of a collection of energy data.

Belgium has in fact signed a number of international commitments with the International Energy Agency, with the European Union, with the United Nations in order to establish energy balances of our country. This membership requires it to transmit within binding time the constituent elements of these balances. by

A little different from Mrs. Creyf, I think that the liberalization of the electricity sector is now experiencing a real acceleration in Belgium, which compels me to advocate for a strong regulator, at the national as well as European level. This opening to competition can only be achieved in accordance with a number of rules and with appropriate framework, if one wants to avoid repeating what is happening today in California, where there are significant shortages and price increases due to the dysfunctions of market liberalization.

Certainly, we want a price reduction as part of this liberalization, but not on any condition and ⁇ not at the expense of employment or the quality of consumer services. As socialists, we will take care of this in subsequent discussions.

In this sense, the conclusions of the Stockholm summit appear to be quite nuanced. If we see there a confirmation of the willingness to accelerate the opening of the market, there is no fixed deadline for this new electricity market.

The above reflections lead me to refer to the debates currently taking place in the Committee on Infrastructure, Communications and Public Enterprises on the universal service in the postal and telecommunications sectors. The high content of this debate proves that the problem of universal service is a major issue and that it might be useful to extend this discussion to the electricity sector, within the framework of the Economy Committee.

Dear colleagues, I thank and congratulate Mr. Campstein for his maiden speech. (Very vivid applause on many banks)

Mr. Speaker, Mr. Ministers, Mr. Secretary of State, colleagues, at the Council of Ministers of 5 April 2000, a number of decisions were taken in connection with the further liberalization of the electricity sector. The Secretary of State gave in the committee an overview of the current state of affairs. A total of nine topics are covered, and the present bill deals with three of them, namely some measures relating to the regulatory authority, the CREG, measures relating to nuclear energy, in particular the formation of separate accounts, and some provisions on transmission management.

The VLD fully supports the measures related to the CREG and nuclear energy. However, I will take the opportunity to make a few comments about the transmission network management.

It is an open door to enter when I suggest that the appointment of a transmission system operator is the key prerequisite for leading the liberalization of the electricity market in good course. It is therefore in this perspective that the European Commission has initiated a procedure against our country for non-compliance with the relevant European directive. Our country must put things in order by 1 June 2001. This implies, inter alia, that before 1 June 2001 clarity should be given as regards the network operator.

Through a protocol between the current owners of the transmission network and the municipalities, it was decided to establish a new company that will be responsible for the network management, with a significant participation for the municipalities. A framework was also created for a stock exchange.

I have a few questions about this protocol. First and foremost, does the protocol meet the requirements of the European Commission, or does a network administrator really need to be appointed before 1 June 2001? Second, what is the percentage of participation of municipalities? Tomorrow is expected a 30 percent participation. Is it right? Third, what part of the capital will be introduced to the stock exchange? Fourth, is there a concrete timing agreed?

Then I would like to know what the share of the current owner Electrabel and SPE is. What share do they retain in the newly established society? The VLD has repeatedly advocated that electricity producers may hold up to 25% of the capital of the transmission network. The question is what percentage the government intends. Electrabel has stated that it must be adequately compensated if it must give up its majority stake. Is there a regulation in the protocol?

The network manager is responsible for guaranteed supply and the development of the network. It is therefore of great importance that the integrity of the entire transmission network remains guaranteed. The transmission network does not stop at 70 kV, even though the networks under that standard fall under the jurisdiction of the regions. A number of amendments submitted to the committee aimed precisely at ensuring integrity by introducing the possibility of a single network operator for the entire transmission network. I therefore hope that those amendments will be sufficient to enable an integrated management of a transmission network. Agreements with the regions should be made as soon as possible.

Finally, I have a concern regarding the technical code of the network administrator. The royal decree in this regard must also be approved before 1 June.

How far are you with this? After all, I notice that there is a report in the press about a rough relationship between the Secretary of State, on the one hand, and Electrabel and CPTE, on the other. On the one hand, we can consider that as a positive news, as it contradicts Mrs. Creyf’s claim that this government plays the interests of the electricity producers. On the other hand, it is clear that in terms of the technical code, the role of the current network administrator, the CPTE, cannot be ignored. Any tensions between the various parties should not prevent the rapid and correct designation of the network operator and the approval of the technical code. A breakdown by the European Commission in this important sector can be missed as a jaw pain on the eve of the European Presidency.

Mr. Speaker, Mr. Minister, colleagues, I would like to speak about one aspect of the legislation that is being proposed. I could have done so well during the article-by-article discussion, but it is now happening during the general discussion.

I will be speaking in particular about some fiscal aspects of this draft that have yet to be added on a late look at the discussion. If I am not mistaken, the Government submitted a number of amendments on 23 March 2001. As far as we are concerned, and as far as the government does not contradict us, these amendments are a major innovation in the tax treatment of social assets to be divided. In the committee, the problem of these important fiscal aspects has been pointed out. Mrs Creyf, Mr Poncelet and Mr Dehu have already cited it. The latter even invoked the opinion of the State Council. However, it is regrettable that the Committee for Business has not decided to submit the draft law for advice to the Committee for Finance. Of course, we also take partly responsibility for this.

Specifically, it is about the figure of the partial division that is inserted here. Let me explain that understanding for a moment. An ordinary split under the Company Code results in a transfer of the entire social assets of the divided company. According to our current tax legislation, this means that the tax burden in a taxable split can be quite high. Partial splitting or merger, on the other hand, limits this tax charge because there is only a transfer of a part of the social asset. Therefore, only the part of the transferred social assets is subject to taxation, in accordance with the general rule of Article 210 of the Income Tax Code 1992.

The present bill clarifies the intention of the legislator and the scope of Article 677 of the Company Code. The proposed tax provisions, introduced through the amendments — if I am not mistaken — 10 to 16 of the Government, clearly envisage the arrangement for a transfer of part of the social wealth through the partial splitting, which is added specifically for the electricity sector. However, there is no indication that this may not apply to all cases.

The draft also does not make any reference to certain industries or to a general set of goods; it only speaks of the transfer of a part of the social wealth. To remind you of the importance of what we will later vote on through the government amendment, I remind you that my highly respected colleague Dirk Pieters in the autumn of 1998 asked a verbal question to the then Minister of Finance.

The question concerned the regulation of the tax statute of the partially divided social assets. The Minister then made it clear that the partial division "cannot be considered as a contribution of a branch of business or a generality of goods within the meaning of Article 46 §1, 1 e paragraph, 2 of the Income Tax Code 1992. The Minister then replied — at the end of 1998 — that he would have his administration investigate whether the partial split after a possible legislative change could effectively be included in the tax-free transactions as mentioned in Article 211 of the Code of Income Taxation. However, the tax treatment of partial mergers or splits has not yet been regulated by law. The Government’s amendments to the present draft law – which are expressly aimed at the electricity sector and which we have nothing against in principle – incorporate the partial merger and splitting into the in principle taxable transactions in accordance with article 210 of the Code of Income Taxation to submit them then, on the example of the ordinary splitting, to a tax neutral system, read a system in which no tax is levied at the moment of realization of the partial splitting. Amendment 10 which introduces a new article 14 into the bill was submitted to the Committee on Business on 27 March. By this amendment, a second paragraph is added to Article 213 of the WIB, which reads as follows: "In the case of a transaction equivalent to a splitting as referred to in Article 211 of the WIB" — read the partial splitting used here — "for the purposes of the Code of Income Tax, the transferring company shall be considered, as the case may be, either as a split company or as an acquiring or acquiring company". This addition equalises the partial split in legal fiction under Article 213 of the WIB for the various provisions with the ordinary tax neutral split.

Given the fact that the amendment is drawn up in general terms, this means that the introduction of these provisions through this bill in the WIB can ensure that the figure of the partial splitting - given the tax neutral treatment of the assets that are the subject of the partial splitting - becomes a very useful working instrument for all taxpayers, companies and companies. I do not want to express myself ironically. We thought that it could not be the intention to carry out such an important amendment to our tax law with an amendment "and steaming". In the committee, Ms. Creyf, among others, rightly asked for attention to this problem. I regret that this bill was not the subject of a reasoned opinion of the State Council, nor of a discussion in the Committee on Finance. We therefore ask the Secretary of State to specify very clearly what the exact purpose of Amendment 10 and the new Article 14 of the draft law is. In particular, we ask him to express his opinion on the application of this article to all partial divisions, whatever activity it may concern.

I would like to respond to the various speakers.

First of all, I would like to tell Mr. Campstein that, like him, I want the opening to competition to take place in compliance with certain rules and with a regulation aimed at preventing chaos and enabling the guarantee of public service obligations. Please be assured that I share your concern.

Mr Lenssen, the protocol that was signed between the municipalities and Electrabel is a public document. I will deliver it to you next week. In this protocol you will find the different answers to the questions you have asked.

We are constantly in contact with the committee regarding the last two elements that need to be addressed, namely the designation of a transmission system operator and the technical code. The committee understands our willingness to strive for a real and transparent opening of the market. We have regular contact with the committee. In addition, we met with the committee members this week in connection with this protocol.

The technical code will be ready in early June. In this regard, I want to be sure of two things. First, the technical code must be technically in order. The royal decree that counts 300 pages is very complicated. Second, the text should not contain any hidden obstacles to the opening of the market. There must de facto be no monopoly situation because devils hide in the details of the text. We must therefore be very careful. Several operators and university professors are working on this. The text is expected within a few days.

Mrs Creyf, it is intended to have a clear accounting on nuclear activities. It is intended to check and avoid that there is no cross-subsidy in this activity. You know that the government has asked the CREG for a report on the availability of nuclear energy commissions. This report is public. In the coming weeks, I will make a proposal to the government on the availability of these provisions.

Finally, as regards tax aspects, it has been very clearly and very longly explained in a committee that the object of the amendment is to extend what currently exists in terms of tax neutrality from complete splitting to partial splitting. by

During the previous legislature, on the occasion of the discussion on the gas bill, a series of tax amendments were introduced by the previous government with regard to intercommunal. On this occasion, neither the majority nor the opposition requested the opinion of the State Council or the consultation of the Finance Committee. I do not know the rules of the room. You are entitled to request the State Council’s opinion on this amendment. I am trying, for my part, to advance the liberalization of electricity. If you want it to take a few days or a few extra weeks, it’s your right.

I have taken note of the response of the Secretary of State. I say that somewhat ironically, because I didn’t get so many answers to the comments I made.

I would like to say the following. Mr. Secretary of State, it does not matter to me so much whether or not we ask for the advice of the Council of State. According to the report of Ms. Gerkens, that advice has been requested but not allowed, which could nevertheless be normal.

I really wanted to clarify the following. This purple-green government is currently implementing tax neutrality for the partial split by voting on the new article 14, in the draft inserted on the basis of the government amendment no. 10 of 10. Your reference to the previous legislature, when indeed some fiscal and general measures were taken in the gas sector and other sectors, is not relevant here.

In 1998, Minister Reynders’ predecessor, in response to a parliamentary question from colleague Dirk Pieters, confirmed that there was no fiscal statute. At the end of 1998, there was no clarity about the tax treatment of the partial split.

It is, of course, your responsibility, but you are going to introduce tax neutrality for the partial splitting for all companies and for all companies. This is an innovation that we take note of. I am not speaking about this further. In my opinion, it would have been better to obtain clarity on this issue and, for example, to carry out a debate in the Committee on Finance.

Mr. Speaker, I would like to react to what the Secretary of State just said in the last part of his speech because he referred to the past. First, the adage "comparison is not right", has no meaningful scope. What is interesting is the comparison or reference that the minister makes to the past since he explicitly referred to the government of the time, to the majority and to the opposition of the time. It is true that during this period, there were amendments introduced to a bill deposited and they were not without legal and fiscal scope. by

I take note of what the minister said, namely that the procedure of the time seemed to be appropriate to him, hence that the majority of then did the right work and that the opposition was reasonable. I never doubted it. I would like to be sure that we can reverse analysis and simulation. I will not comment on the seriousness of the current government but, as far as the opposition today is concerned, I would like to confirm that it has worked very seriously, very reasonably and very thoroughly.

I would like to comment on the form. When we discussed these articles in committee, several members questioned whether it was appropriate to seek the opinion of the State Council or the Finance Committee. After hearing the answers of the Secretary of State and the Reynders cabinet representative — who participated in the drafting of the amendments — there was no official request from the committee. There was no vote, but observations, suggestions and discussions. I am surprised that this request comes now in plenary session.

Mr. Speaker, I can assume that Mrs. Gerkens knows her report. On page 19 of the report-Gerkens it says: "Mr. Maurice Dehu (PS) asks for further explanations regarding the fiscal consequences of the amendments numbers 6 to 12". Mrs. Gerkens, why are these amendments not submitted to the State Council for advice? Your own report confirms that not only from the opposition, but also from the majority, the opinion of the State Council has been justified.

For me, this is not even the main point, as I have just said. The point is that in all openness and clarity it must be stated that through the new article 14, the then amendment no. 10, a tax-neutral scheme for partial division for all companies is introduced.

Mr. Speaker, as I said, on page 19, some members of the committee have asked this question. A response was given and, as a result, the articles were adopted unanimously.

General discussion is closed. The general discussion is closed.