Proposition 52K1320

Projet de loi portant modification de la loi du 12 avril 1965 relative au transport de produits gazeux et autres par canalisations.

General information ¶

Submitted by

CD&V Leterme Ⅰ

Submission date

July 3, 2008

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Regulation natural gas energy supply gas single market liberalisation of trade pipeline transport

Voting ¶

Voted to adopt

CD&V LE PS | SP Open Vld MR

Voted to reject

Groen Vooruit Ecolo N-VA LDD FN VB

Party dissidents ¶

• David Geerts (Vooruit) abstained from voting.
• Meryame Kitir (Vooruit) abstained from voting.
• Willem-Frederik Schiltz (Open Vld) abstained from voting.

Contact form ¶

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Discussion ¶

Dec. 16, 2008 | Plenary session (Chamber of representatives)

Full source

This is not an innocent bill. It will have a number of significant implications for a number of gas partners in our country. We have been talking about this in the committee for a very long time. I urge the Minister responsible, Mr Magnette, to be present at this discussion.

I propose that we call Mr. Magnette, who is not yet present here, but that in the meantime we give Mrs. Partyka the opportunity to present her report.

Mrs Partyka, you have the word for the report.

I am honored to have the time to speak.

Colleagues, we have spent a lot of time on the current design, so I would like to remind you once again how hard we worked on it.

The draft law was submitted by the Minister to the Chamber on 3 June 2008 and the committee discussed the draft on 2 October, 4, 18 and 25 November. Previously, on 10 June 2008, hearing was held on the topic “Transit Tariffs for Gas”, with representatives of the CREG, Fluxys and Distrigas.

During the discussion in the committee, a request for hearing with the Directorate-General for Energy and Transport was also submitted, which was rejected with 8 against 4. A request was also submitted to seek advice from the Legal Service of the Chamber on the impact on the draft judgment of the Court of Appeal of 10 November. This request was rejected by 9 against 4 votes.

The Minister explained the draft and began to explain the difference between the two separate activities gas transport and gas transit. The draft law applies to the last activity: gas transit or gas transit.

In his explanatory note, the Minister clarified that it is important that the applicable rules are clear not only for the network operator Fluxys, but also for the suppliers who should be able to enjoy maximum visibility in the light of a stable and credible Belgian market.

The draft law is about clarifying two elements. First and foremost, the status of the transit contracts and, secondly, the tariff system applicable to gas transit. As regards the tariff system for the tarification of transits, Article 15/5,quinquies had to be amended. The purpose is that the rate is based on the traveled and certain distance on Belgian territory. For this purpose, three methods are developed that can be used alone or in combination.

First, the project methodology that provides for a specific regulated scheme. That scheme shall apply to the expansion of installations or to new installations for the transport of natural gas for the volume intended for transit. The second method is a cost-plus method whose main parameters have been established. The third or last method is the market price. Under no circumstances should that approach result in a rate lower than the rate resulting from the cost-plus method.

The second part of the draft law concerns the status of the transit contracts and more specifically the recognition of the historical contracts or the so-called “sanctiality of contracts”, which is anchored in article 15/19 of the Gas Act.

In order to give a useful effect and to preserve the existing historical transit contracts, an interpretation clause is inserted in the text of Article 15/19, in so far as the Minister's explanation.

In the general discussion, I think, there are a small hundred questions asked by the committee members. I will not list them all. I take the freedom to take the most important out, but I don’t want to make the colleagues too short. We have made a lot more. I am asking a few questions.

What is the Minister’s answer to the questions raised by DG TREN in a letter, including who is the actual successor of Distrigas.

One question that came back several times is the following. Should the law be amended and what is inadequate in the current legislation on transit rates? Is this amendment of the law legal?

Is the transit activity a competitive activity since there is only one operator in Belgium?

What is the effect of this bill on the price for the consumer?

Is this modification of the law consistent with the European directives?

Who is interested in this bill?

What will happen to the historical agreements?

What tariffs will be applied?

How is a combination of tariff methods achievable?

What about the criticism of the Council of State in connection with the interpretation of European legislation, which the Belgian legislator is taking here?

What will be the consequences of the judgment of the Court of Appeal of 10 November 2017 on the present draft and the tariff structure in Belgium?

That was a grip from the questions. I also give the Minister’s reply. He said it is not up to the government to intervene in disputes between regulatory authorities and operators or operators among themselves. The purpose of the design is to clarify a number of points. The Minister also emphasizes that it is up to the European Court of Justice to interpret European legislation and not to a national minister or a European Commissioner.

The second element of the answer is as follows. Since the share of Gaz de France-Suez in Fluxys will be less than 25%, and the presence of Publigas will be greatly promoted, that is a sort of nationalization of Fluxys. The Government wants to guarantee Fluxys an optimal legal framework for the performance of its tasks and strategic role.

Third, on the question of whether it is a competitive activity, the Minister of Competition answers that the relevant territory to determine whether or not there is competition is the European territory and not the national Belgian territory. In this context, the transit activity is indeed competitive. The double legislative amendment aims to ensure tariff stability, transparency and predictability.

Regarding the tariff methods, the Minister says that there is no change in the tariff for the existing installations. For the new installations, the three tariff methods can be used or combined. It is up to the CREG to ensure that the methods used are in accordance with the law and that the rates are established correctly.

The Minister also specified that Fluxys nv is the legal successor of the former Distrigas. Fluxys nv also acquired the activities of the company Distrigas & Co on 1 July. These are now 100% controlled and they have become Fluxys & Co.

The minister also said that the CREG made the decision to make only 4 of the 36 contracts comply with the principle of sanctity of contracts. He said that decision of the CREG is based on a literal and textual interpretation of the Transit Directive, which according to the Minister does not correspond to the reality of the organization of the transit activity in Belgium. The draft law aims to end the uncertainty arising from this situation.

As regards the network operator, the interpretation clause concerns Fluxys and the former incorporated Distrigas, which succeeded it in relation to the transport activity, as well as the new Distrigas or a subsidiary or one of those companies specialising in the commercialisation of transit capacity and the export of the transport services concerned. It follows that the agreements concluded by Distrigas & Co – today Fluxys & Co – and SEGEO will be entitled to that sanctity contrary to what could have arisen from the CREG’s point of view.

As regards the network user, the interpretation clause clarifies that both entities responsible for a large high-pressure gas pipeline network and entities responsible for the import and export of natural gas, as defined in the Transit Directive, are eligible. The explanatory note clarifies that it is intended to guarantee the continuity of foreign operators’ past transit contracts. The Minister also confirms that for the Belgian consumer nothing will change since gas transit and gas transport are two clearly distinct activities.

This bill guarantees Belgium’s position as an international natural gas transit country. The Minister considered it important that the concluded agreements are not arbitrarily challenged. The Minister also explicitly confirmed that all existing transit contracts will be analyzed so that the principle of sanctity or contract can be applied.

Different tariff methods are possible at a given time, provided that this leads to a uniform, transparent and non-discriminatory price. If the market price is higher than Cost+, the additional revenue may be used for investments or cost savings in gas transport, under the close eye of the CREG which monitors the implementation of the tariff principles.

On the question of whether or not such a European regulation should be transposed or applied automatically, the Minister confirmed that a European regulation should not be transposed but applies unshortedly. This bill is not intended to transpose the directive as such but to clarify and clarify certain elements.

Finally, the Minister did not want to make decisions on the suspension arrest of the Court of Appeal. He pointed out that this judgment does not decide on the conformity of this draft law with European law. The draft law was compared to the European legislation. A European directive is binding on the result to be achieved. It is therefore not necessary to transpose the directive as a text, but the text of the directive must be interpreted. Finally, the Minister said that a State should make laws respecting the principles of European law. If those principles are not unambiguous, questions for a preliminary ruling may arise. This is of course a legal issue.

During the article-by-article discussion and the vote, 24 amendments were submitted. A first amendment by Mr. Tobback wants to allow only the cost+ for transit. Mr Tobback’s second amendment aims to exclude the subsidiaries of Fluxys or Distrigas. Ms. Van der Straeten and Mr. Henry want to remove Articles 2 and 3 of the bill. There were also a number of amendments by Mr Schiltz and Mrs Staelraeve concerning the transposition of the European Directive and a supplement to Article 2. The deletion of the word contractual is contained in amendment 6. Amendment 7 concerns the rate of yield and its reduction from 7 to 6 percent. Amendments 8, 9 and 10 of the same applicants aim to limit the possibilities of tariff setting by not allowing market action. Amendment 11 limits Article 3 to Fluxys and Distrigas.

The amendments 5 to 11 were, unfortunately, withdrawn before the vote, but were subsequently re-submitted by Mrs Van der Straeten and Mr Henry and Tobback, who re-adopted all those amendments.

Then there is the 14th amendment by the ladies Lalieux and Partyka and the ladies Schiltz and Clarinval. This is a technical change, if I am not mistaken.

Amendments 20 to 26 by Mr. Logghe and Mr. Laeremans also take on amendments 5 to 11.

Only Amendment 14 was adopted with 10 votes in favour, 4 against and 1 abstinence.

Finally, the whole draft was voted. Article 1 was adopted with 10 votes in favour, 4 against and 1 abstinence. Articles 2 and 3 were adopted with 9 votes for, 4 against and 1 abstinence. The whole was adopted with 10 votes for, 4 against and 1 abstinence.

Mr. Speaker, colleagues, there is a smell of this gas. You have just heard from Mrs Partyka very carefully the report of the work in the committee. Well, I can assure you that there was a bitch fight in the commission. Mr. Tobback witnessed this in part.

You have heard that I have submitted amendments which I then, out of loyalty to the government, have withdrawn and which, as is customary in the political strategies that this hemisphere is rich, have been re-served by the opposition. I will briefly recite what my problems are with this bill.

It has its merits, let that be said. I am very pleased that the minister is actively engaged in working on the country’s energy policy, a term that in recent days and weeks is taken into the mouth more by mayors and other local potentates than by the competent minister.

In the design there is a very special and original tariff method. The Minister uses the Cost+ principle as the basis for a regulated rate. However, if there is a competitive activity, then he adds another piece that can then fluctuate depending on the market. In a European context, this comes to me, not only as a lawyer, but also as a politician, as very problematic. Either there is competition and then the tariffs are released as it should be in a liberal market economy, or there is no competition and then the regulator and/or government intervenes to impose and fix prices.

Mr. Minister, in this case the mosquito is neither fish nor fish.

Furthermore, the design, especially in the field of transport, still creates a flagrant distinction between the gas and energy markets, while in my opinion transport is transport. In both cases, it is the transport of an energy source through a monopolistic network.

The distinction is made not only between electricity and gas, but also between the transit of gas – in other words gas that comes from the Netherlands, must go to France and passes through Belgium – and the transport. According to the same high-speed network, gas is supplied in Belgium.

Colleagues, I understand that today is a special meeting and that the draft government may not be able to touch you. However, I would like to point out that this is a ⁇ strategic sector. It is a sector that will keep us awake many times in the coming decades, ⁇ not today, then ⁇ in the future. That is why I would like to get your special attention. There is more to the present draft legislation.

It has become sufficiently clear that the liberalization of the energy market has gone far from smooth. There are childhood diseases that need to be addressed now. Mr. Minister, as a socialist, it may not be a grateful task to put together the loose ends that were left behind by what, especially on the left side, is often called the bad policy of blue. Of course, I do not even agree with this.

You have heard me in the committee also suffice the praise trumpet about the steps that have already been taken and about the path you are continuing on. Nevertheless, I call on you again from the speech stand to be cautious. Indeed, the interests in the present case are so intertwined and opaque. I am sure that my colleague Bruno Tobback will say a nice word on this subject.

There is the evaluation made of the contracts transferred to Fluxys in which Suez has so many interests. Mr. Minister, by the present draft you make our regulator, which is our chance to finally make a working whole from the curvature of opaque and difficult or poorly transparent energy markets, a wing lamb.

Mr Partyka rightly argued that the directive cannot be interpreted. You have never denied that conclusion. You say you need to supplement it.

Mr. Minister, by the supplement and by the way you conceive the clarification, you are organizing a rape of every opportunity for an integrated, European energy policy.

That is why I am not happy with your bill. My amendments, which I naturally withdrew and which were repeatedly submitted by the opposition, have forced me to abstain. After all, I cannot reject my own amendments, which I firmly believe would have made your design better.

I highly appreciate your fairly courageous attitude in this case. You were in the committee, and rightly, also very critical of this design. What remains a little unclear for me is whether you speak on behalf of yourself or on behalf of your group? Will your group abstain or vote against or approve the amendments that may be submitted? Or is it a purely individual expression of your individual emotion that we have heard here?

Mr Laeremans, I am pleased to answer your question for clarification. I have said to the good supporter that I support the initiatives of the minister, that I have been loyal to the government and that I will do so now. I talked about myself. I have submitted amendments where I am behind and which I will not reject. Of course, my group is solidary with the majority. Especially in these times of crisis, she still wants to participate in the government. Nevertheless, I personally wish to give a signal, I who followed the dossier from a little more closely, by remembering me at the vote on the amendments and the whole draft.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker has delivered a thorough report. I think there has been really hard work. It may be an understatement, but hard work, however, is a matter, it has ⁇ not always been fruitful. After countless hours in the committee, I can still say that there are still a lot of frustrations. Frustrations that only increase when I hear here the explanation of Mr Schiltz, who, in his personal title, may break the whole draft, but rely on the opposition to be able to refrain. It is because the opposition has re-submitted its amendments with other signatures under them, that he has been able to abstain and that he can come here on the floor to say that it is a bad draft but that he is still loyal to the government.

I am very sorry that a strategic sector such as the gas sector has to move into political games, as you have said, Mr. Schiltz.

In many cases, political games are played. You should know that terminology is not needed in this file. You know very well what my personal belief is here. You also know very well how difficult we are in. I will also talk about my group. You say I count on the opposition, but you don’t know what I would have done if you didn’t submit my amendments. Please do not give any interpretations of my position on this subject.

One would almost feel pity, Mr. Schiltz, had it not been that the bottom line of this bill is that one particular energy group, in particular GDF-Suez, thanks to this bill that has been made on its own scale, is going on. Then submitting amendments, not agreeing but ultimately abstaining when we submit them again, I do not find that immediately testifies to political courage.

This is not the only reason for frustration. Mrs Partyka said that many critical questions were asked, including by members of the majority, but that the answers to these questions were not always as complete. It is sufficient to look at the questions and answers in the report and to summarize the cases in order to conclude that not all questions were answered.

The following is very frustrating to me. We had agreed to work in writing and to communicate the questions we already had in writing. I have asked you several times, in writing and orally, what the advantage for GDF-Suez was with this bill. You did not answer, witness the list of written questions attached to the report.

I think most of the debates are behind. We will not overdo it here. I do not think this is necessary either. I would like to talk about two other points, namely the tariff system and the interpretative article.

As far as the tariff system is concerned, there has been much cheating with terms such as “gas transit” and “gas transport”, often becoming a semantic game of what exactly was meant. In fact, it is not so complicated. I would like to make the comparison with a taxi company.

Suppose I am a taxi company and a monopolist. I am a taxi company with two divisions that have nothing to do with each other and that have separate accounts and separate buildings. The first division of taxis runs within the country and carries only passengers who move within Belgium. The second division of taxis runs abroad. These two divisions have nothing to do with each other – at least I pretend that – and the passengers of the first division who travel only in Belgium, I charge a regulated rate because I am a monopolist. As colleague Schiltz has said, monopoly activities are regulated, so in my case. What do I do as a taxi company? I submit to the regulator a list of costs of purchase and maintenance of the cars, of the installation of a calling system, of the restoration of any scratches. On top of that, I get a fair profit margin that I may possibly use to improve my fleet.

For passengers travelling with the second division, i.e. passengers travelling abroad, a different tariff applies. This is a free rate. I have had to accept that passengers who frequently sail with me have concluded a long-term contract and have also concluded a contractual rate. At the same time I have to swallow – the law of the strongest – that the rate is quite low.

For me, this is an interesting opportunity. Since that second division is tariff-free, there can be made very much profit there. So, what do I do? All the costs I have are the same for all my taxis. A calling system costs the same for each taxi, whether that taxi runs in the home country or abroad. I charge such charges for my first division taxis, which only operate within the country. So my costs will be reimbursed anyway, thereby reducing my costs. This way I make extra profits.

That was the situation with gas in our country. A distinction was made between transport and transit gas, gas that was transported inside the country with the destination of ourselves, for the cooking of food and the like, and gas that was destined to go through our country to other places.

Europe has taken a very clear position on this. Europe has repeatedly stated – and this has been repeatedly pointed out in our work – that it is not legal to make a distinction according to the final destination. Whether the final destination is in the home country or abroad, it does not matter. Commissioner Piebalgs has clarified this in response to a parliamentary question from European Parliament member Bart Staes. Questions and answers are included in the opinion of the State Council, which is also referred to in the judgment of the Court of Appeal on this subject.

So putting a European position of that order aside seems to me actually quite striking.

Second, there is a judgment of the Court of Appeal of 10 November on this matter. The verdict added something. The judgment states that it is not only unlawful to make a distinction according to the final destination, it is also necessary to use a single tariff. Both activities should be regulated on the basis of Cost+. Whether it is transit or transportation, the same tariff must be used.

In other words, the CREG can actually mix all costs, can throw everything together and create one rate, regardless of the final destination.

So, Mr. Minister, the topic we are talking about today has actually become very simple. We no longer need to spell with terms like transit or transport, or discuss with each other about what we actually mean. If we put the European texts and the judgment of the Court of Appeal side by side, the conclusion is as follows. Transit or transport, gas transport for domestic or foreign purposes: no distinction shall be made between the two, the tariffs shall be regulated for both activities and shall take the form of a single uniform tariff.

So I still have not understood, dear colleagues, why the draft law, on which we will vote today, provides for a complex system in which the tariff system can be regulated but also operate on the basis of market prices. Both can even exist side by side. I think this is flagrantly contrary to the European regulation on the subject.

Mrs. Lalieux may say it is a political disagreement. It is not just a political disagreement. I am based on the decisions of the European Commission, the Court of Appeal and the Council of State.

Mr. Minister, at the very end of our work we all received a letter from StatoilHydro. That means that it is an important gas partner, transporting gas through Belgium and that it is very concerned about the tariff system installed in this text. It says that discrimination will work hand in hand and that it will not ensure equal treatment of all shippers on the Belgian market.

Second – if possible, this is even worse – there is the interpretative article, the last article of the bill. I think that was ultimately what the government had to do. The tariff system was subsequently upgraded to submit a bill that contained more articles than just an interpretative article.

What is the interpretative article about? Mr Schiltz has already explained it. The entire discussion arose following the merger between Suez and Gaz de France. One of the remedies imposed was the sale of Distrigas. Before Distrigas was sold, the daughter of Distrigas, Distrigas & Co., had to be removed. Distrigas & Co, among other things, has a number of lucrative transit contracts in its portfolio, the value of which was estimated between 900 million and 1.2 billion. Depending on the source, the estimates differ slightly.

The CREG had taken a decision to impose provisional transit tariffs, regulated tariffs. As a result of that decision of the CREG, the values of those contracts have decreased by EUR 300 million. That was, of course, out of value, because who were the beneficiaries of all that money: the municipalities and the Suez group itself. Our Belgian government, which can sometimes be very effective, has quickly drafted a bill with an interpretative article, in which it says that the annex to the European Union transit directive should be read as follows: also the subsidiaries now fall among the companies that conclude transit contracts.

Mr. Magnette, I have taken over my Handbook European Law. You will apologize to me that this is a book by the professors Koen Lenaerts and Van Nuffel. I don’t have a book from your hand in my library. I will probably buy it again if you can give me a good title. I have limited myself to the book of Professor Lenaerts. When it comes to the interpretation of a European directive, as you have said, only the European Court of Justice is competent. So why did you include an interpretative article in a Belgian bill? I think that we are on the edge of the legal balance.

You said that although we should not interpret the Directive, we can always clarify it a little. If you add something, Mr. Minister, it is no longer a clarification. It is an analogue interpretation. No matter how beautiful it may be, we are not competent to do so. I am always ready to help you, if necessary. You know I can be very constructive. Therefore, I will submit my amendment again. This is not an amendment by Mr Schiltz, so he does not have to abstain. It is an amendment by myself and my colleague Philippe Henry, in which we have made an attempt to clarify what is in the article. You can also find it in the report. We submitted it to the committee meeting, so I will not read it again. In essence, it follows that in our amendment we do not speak of subsidiaries. I think that is the pain point. You will refer, Mr. Minister – as you have done in the committee – to the judgment of the Court of Appeal, which considers that the CREG may have incorrectly applied the Annex to the Transit Directive.

I would like to say something more about that. If we leave the provision as it is, it does not prevent CREG from doing what the Court of Appeal imposes on it, in particular that the subsidiaries could still fall under it. In my view, an analysis should be made of whether the subsidiaries are fully controlled by a parent company. It should not be questioned whether the subsidiaries are or are not covered. However, the question must be asked, as the DG TREN has put it and as Mrs Partyka has cited it in her report, who is the legal successor of Distrigas. I think that is Fluxys. You have said it yourself too. In that sense, I do not believe that an adaptation of the Annex to the Transit Directive is necessary.

We have worked hard but the result is not there. It is an understatement to say that there is some bitterness – ⁇ with me personally but I think also with my group – because of the fact that we are being asked here today to vote on it.

Yesterday in Terzake there was an interesting interview with a professor following the Fortisarrest. In fact, it is somewhat similar. There is an action, in this case of the CREG – at Fortis of the government – that is challenged before the court. The court makes a judgment, in this case a suspension arrest of the decision of the CREG, in the case of Fortis a sale that is frozen for 65 days. The professor said there yesterday in Terzake that one should not actually look at it negatively, because in fact the government buys time with such a judgment. This is also the case here today. The professor said yesterday in Terzake that one can complete political leadership in two ways. Either one stubbornly holds to one’s own right, or one puts it aside for a moment and repairs some mistakes that one may have made.

I think you made a mistake. You may be perfectly of the opinion that you did not make a mistake, that is not what we are talking about today. However, the judgment of the Court of Appeal points out a number of things. So why not take the time to look at a number of matters that emerge from the judgment of the Court of Appeal, even if it is just a suspension order, and to check whether we have correctly transposed the European directives applicable at all times. The Court of Appeal says that the CREG could not have applied the Belgian Gas Act because it was not transposed correctly. Such a determination, even if it is only a suspension arrest, should still encourage us to be somewhat cautious. We should review the bill again to see if it is consistent.

A blatant comment, such as the one you made in the committee, namely that you are absolutely convinced that everything you do complies with European law, is not relevant here. This is not important here. It is all and nothing to say at the same time. Where does it come down? It is proposed here as a general law, a general amendment to the Belgian Gas Act, a law with a general purpose. However, it is not. If you read the law correctly, it is actually a law made at the head of the client, tailored to GDF-Suez, which ensures that one player, especially GDF-Suez, will have to pay 400 million less for transit for 15 to 20 years. We have done nothing about competition in this strategic sector. We have done nothing about transparency in this strategic sector. The result is that what we take with one hand, the 250 million, we return with the other hand, namely for 400 million reduction of the transit tariffs.

I will vote against the bill, together with my whole group; it is not a personal point of view, but a point of view of our group. We give each other an appointment, Mr. Minister, probably in a few years when there will be judgments from the court or others who will call us to perform a repair of the law.

Mr. Speaker, Mr. Minister, Colleagues, I would like to begin with the regrettable finding that both drafts, the Gas Act and the Law on the Price Observatory, which are being discussed today after the drafts of the Court of Justice, are interconnected, while they actually have nothing to do with each other and, on the contrary, they deal with completely different subjects. Nevertheless, the mistrust between the majority parties is ⁇ great when we have to establish this kind of artificial links. Not only in the committee, the drafts were artificially linked, but also in the plenary session.

The mistrust is ⁇ high between the majority parties; this government is tied to each other with loose sand. This is once again abundantly confirmed today. In fact, it is strange, however, that a design that aims to keep prices within the limits for the benefit of the consumer is inexpensively linked to a design that aims to ⁇ the opposite purpose: in fact, it must ensure that gas prices for consumers remain indirectly artificially high. In fact, all of this is very contradictory.

It is a very complex design. I can confirm that we have worked hard on this with the committee and discussed it for many hours. It makes no sense to thinly discuss all those debates today and fall into technical details. I would like to limit myself to a few general comments.

First, we cannot go down there, the present bill is the basis for a giant transfer of our country to France. A gift of at least 900 million euros is being made to Suez, while that is actually unresponsible. The activities had to be transferred to Fluxys anyway, as this is the regulated activities. Consequently, the CREG had rightly decided to reduce that immense amount to a much lower amount, as only four of the thirty-six contractors complied with the exceptional provisions. By still paying out the immense amount, Fluxys not only puts its own future investment policy at risk for many years, with all its effects on the limited turnover that will result, and on consumer rates. Furthermore, an additional competitive advantage will also be granted to Gaz de France, which itself will be able to work at preferential rates compared to the other operators.

Gaz de France passes through the box twice. Why is it that we, especially in energy records, are repeatedly put in the clothes of France, that we are repeatedly playing the water carriers of the French interests?

The law itself also raises a lot of questions. A lot of comments can be made. I will limit myself to two comments.

First, with this legislation, our country is – according to our information – the only country where a combination of market rates on the one hand and, on the other hand, rates based on a Cost+ system will be allowed. This does not exist anywhere else in practice in the European Union. The question remains whether this is in accordance with European legislation. In any case, this will lead to very disparate rates, and therefore there will remain major questions regarding the application of the principle of non-discrimination.

This latter is much more the case with regard to the distinction, the high fence built between, on the one hand, the tariffs for transport and, on the other hand, the tariffs for transit. However, the current European regulation on this subject clearly states that no distinction should be made between the two forms because this impedes the normal functioning of the market.

This interpretation was recently confirmed by the European Commission and this position was also clearly and correctly adopted by the Council of State in its opinion on this draft and by the Court of Appeal in its judgment of 28 October.

It is precisely because of the incompatibility with European law that the likelihood is ⁇ high that this legislation will eventually never be applied in its current form, either because the law can be abolished by the Constitutional Court – which ⁇ cannot be excluded, there are plenty of people, shippers and firms, who suffer disadvantage from this legislation – either because Europe itself will declare this law out of application, as in fact already suggested by the Court of Appeal in the judgment of 28 October.

In this context, one question remains crucial, Mr. Minister. I want to repeat it to you today. What if this scenario really happens? What about the 900 million that Fluxys will have paid to Suez? I assume that this has not happened yet, but that it will happen soon. Is there any basis for Fluxys in that case to recover that wrongly paid amount from Suez or will our country remain with the financial barrier?

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, I would like to make a few comments on this interesting and important matter. I would like to remind you of the framework in which it falls.

A few days ago I had the opportunity to say this on behalf of my group. It is primarily about the will to maintain energy independence in our country, to maintain affordable prices for our consumers, not to produce more CO2 in the current climate. It is also the role of public power which must also take into account its strategic role in our economy. Behind actually similar provisions, there is a strategic interest that should be taken into account.

It is not about who is right or who is wrong. Because in force of saying this, we will obviously in terms of ideology be suspicious of each other. I believe that it is especially important to be careful not to do anything because when you do nothing, you let do and when you let do, others do something.

In this case, the government submitted a preliminary bill that has been the subject of many discussions within our committee. Opinions were exchanged around this project. I would like to remind you of a few elements that I find indispensable for the proper understanding of the issue that was submitted to us.

First, the situation of transit and transportation. As I said in the commission, the Belgian market is not a market in itself and it is ⁇ not in one of the two aspects that I have just exposed to you here a few moments. We are open to the world and to the center of Europe. The market we are facing is a market at the European level.

This is the first observation that seems interesting to me, especially since I have had the opportunity, since the meeting of the committee, to go to check what was happening in other countries facing the same reality as ours. This also seems to me ⁇ interesting. This is the situation of the Netherlands, the situation of Austria, the Czech Republic and Poland. In these four countries, transit activity is important. This is not the case in other European countries. But in all those countries where a transit activity is very important or important, especially old contracts, historical contracts are practically always preserved. This seems to me an element that is also interesting when one is in competition with those activities developed in those other countries that experience the same problem.

The second thing I would like to say is that there has been a lot of reference to Europe, a little like the Oracle of Delphi by saying “The Commission says this, the Commission says this.” It is up to parliament to make the law, maybe tomorrow to a judge to say the law but, at this stage, the only judge who will eventually be able to say the law is the Court of Justice.

I remind you that in another issue that we had to know recently in one of our committees – it is the bonus-malus in insurance – the committee had taken a different position. States have aligned or some of them have aligned. When the Court of Justice was brought to judgment, it found that the insurance bonus-malus system was not contrary to the rules of competition.

It should be remembered: in fact, "prima facie", we can say everything. I can even tell you that by observing the jurisprudence – just recently, one speaker cited a work of Mr. Lenaerts whom I have well known, having studied together –, I find that the number of suspension stops not followed by cancellation stops is also ⁇ high. When considering a decision taken in suspension, it should also be done "prima facie".

With regard to this decision, I would like to make some observations already raised at the meeting of the committee. You will see in particular that the Court of Appeal deviates both from the interpretation given to the device set up and subject to the tariff, both from the position of the CREG and that of Fluxys, thus taking the form of a third way. Hence the delicate nature of the situation that is submitted to us.

Depending on this, as we are in the heart of Europe and as a very important transit activity has developed on our territory, we must ensure its strategic interest, while constantly keeping in mind the priorities that I have set from the beginning: energy independence, the minimum price for consumers and the fight against global warming.

The established device does not let go, it does not remain passive in the face of a known situation, but it can also lead to certain observations and criticisms. The worst thing, I think, would be to do nothing. Doing nothing would lead to worsening the situation in the medium term for our consumers and, ⁇ in the short term, for operators working in our territory.

Let us keep things in mind, and let us also observe the actions of our French or Dutch friends: they speak of community law, which is preeminent to a certain point, beyond which they come to consider rather the strategic interests of their nation. We may not have the same national feeling as our neighbors, but it is important that, in such cases, we are vigilant about measures to be taken, likely to have unwanted consequences.

My group will vote on the bill.

Of course, it will still be necessary to think about how to see things in the future: this right is under construction. We will have to observe the reactions to the device that will be put in place, but we must keep in mind the role of strategist of the state, that of a parliament that makes the law, even if the judge then says that right. And it is also up to us to take guidelines, in my opinion, extremely important for our country.

I would like to start with a statement from the Prime Minister. Last week, in the newspapers with a lot of apple, as it is his own, he said that according to him, the liberation of the energy market in Belgium has failed. I agree with the Prime Minister.

He is, by the way, supported, also this week or in recent weeks, by the European Commission in a report on the socio-economic situation in Belgium and by the IMF, also in a report on the socio-economic situation in Belgium. They all point out that the lack of control over the evolution of energy prices in Belgium is responsible for the inflation we stand for, is responsible for the so-called wage cost disability and is responsible for the surplus price that the citizens in our country pay.

How does that come? This is so for the simple reason that in our markets the monopolies have remained too strong after the liberation. Does the government do anything about it? Actually not .

Mr. Schiltz, I must say that I applauded for you after your first presentation when you tried to leave the speaker. I agree with you. It is only regrettable that the rest of your group does not fully agree with you and that this government does not agree with you.

There is no agreement on energy policy. Every week it happens that a minister from one majority party launches an initiative that is then opposed by ministers from the other majority parties.

Last week it was, after a few times Mr. Magnette, the turn to Mr. Van Quickenborne, whom I fully support in this. By the way, I offered him to realize this immediately. However, Mr Van Quickenborne was held back within the government by several parties that form part, at least in name, of his majority. I find that very funny. We have already experienced very funny moments in the committee.

Colleagues, do you really think that in this way one will ever be able as the Belgian government to form a counterweight against those monopolies, against the economic power that currently in our country leads to very negative consequences for the population?

It is not the socialist who says that. It is the IMF and the European Commission who say that. It is in this for me very suspicious, but for many of you undoubtedly undoubted sources that agree with me in this.

What does this government do? This government succeeds in submitting this draft, on which it still does not agree, to Parliament. Does this draft give a fundamental contribution to Belgian citizens, to Belgian consumers, to Belgian gas customers, even though they are small ⁇ ? and no.

The irony of the draft is that we got it to be discussed in the committee on the day we were all shouting that the banking crisis was the result of too lax regulators. What we bring the same day in the committee of the Federal House of Representatives: a bill that only serves to screw back a decision of the regulator in the energy sector.

There will be some logic in it, but during the whole discussion, Mr. Minister and colleagues of the majority, no one has succeeded in bringing that logic to the surface. Mr. Schiltz is still searching, but in the meantime he is so good at approving the design together with his entire group.

Does it have negative consequences for all of us? of course . It is harmful to the competition on gas pipelines by our country. Again, you don’t have to believe me. The judgment of the Court of Appeal, which came just before our final vote, says literally the same thing: by concrete and guarantee those old contracts, one not only transfers hundreds of millions, away from Fluxys, besides, one reserves an incredibly large part of the capacity of transit through our country for one particular party to very favourable conditions, in other words, for all others one closes the market.

It is unique in the energy sector, or even elsewhere, that one was so worried that one went so far to send a letter to the Chamber. This has never happened. If there is a sector where one arranges his affairs with one another, and does not bother too much public, it is still this one. Nevertheless, a company like Statoil finds it necessary, out of concern for competition in the market, to send a letter to the MPs saying: Please do not approve the draft, because it is detrimental to the competitive position of others, including Statoil, against the major monopoly in that market.

Has that changed the attitude of the majority parties or the government? I almost have to say: of course not. It has been read over there. They did not look at it. They were not attracted. It was approved in the committee. Ladies and gentlemen, let us not argue with each other and agree on one thing. We will probably vote here soon about the fact that this government will give 30 euros to families to compensate for the rising energy price. We can say a lot about it and we will do it. We will say that this measure comes too late and is only symbolic. Getting the price down 10% after getting it up 30% does not suggest much.

Let us agree, colleagues of the majority, if you approve such laws, if you thus hinder competition in that market, and if you thus continue to guarantee that the monopoly remains monopoly forever and three days, never come again with an outstretched face to say that liberalization has failed and that we must urgently do something about it, or that it is a shame that the people must pay more for their energy and that we as the government cannot intervene. After all, it is you all together who do this with great enthusiasm.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. We lived it for very, very long hours in the commission. We can still see this now. That is what makes the richness of the parliamentary debate. So we can see that our Parliament and the Economy Committee are not useless. A great deal of work has been done by all the Commissioners. In fact, the Minister was submitted to dozens and dozens of questions. The text has been searched to try to break through its great complexity and try to understand the option taken by the government.

Despite these very long hours of debate in committees, there are still some misunderstandings about the preferred direction of the government. Given some delicate points pending, some will abstain.

I remind you that on 10 June last year, in the Economy Committee, we conducted hearings of the CREG, on the one hand, the management of Fluxys and Distrigaz, on the other. We witnessed an unpleasant show, for a strategic sector, of actors of a regulator who were in complete war not only with operators but also with public authorities. An enormous controversy arose from these hearings within the CREG following the new effective transit rate, which advocated a reduction of the order price by 75%, unilaterally decided by the CREG.

At that time, not only Fluxys but Distrigaz criticized this decision. They warned the political authorities that this drastic decrease in the price of the transit rate could undermine all investments in Belgium. We know how developed our country is and is at the forefront of all gas transportation.

During the hearings, we observed fundamental differences. We never reached a common position, but if the divergences existed, they were due to the divergence of interpretation in the legislation in force at the time. The regulatory framework was manifestly unclear and the interpretations were very little convergent in view of this existing regulatory framework.

Due to this diagnosis of serious shortage for future investments and contracts on our territory, the government has taken its responsibilities and presented us with a text that has the will to establish stability, transparency in the field of the transport tariff, that is, legal certainty necessary for investments in economic matters, in a strategic sector above all.

In this sector, competition is very developed in the European countries. If the gas does not pass through Belgium, it will pass through another country, Mr. Tobback, without any problems. The government has therefore taken its responsibilities with regard to this transparency and this desire for security in the interpretation of legislative texts.

We have heard many say, in the committee, that this text goes against the interests of Belgian consumers, “end customers” as they are called. Some said it would increase the price of gas for the final customer. I think that the minister has answered on this subject: we should not confuse the transport tariffs, which have a consequence for the Belgian customer, and the transit tariffs, which obviously have consequences only for the different operators who will pass their gas through Belgium, be it Norwegians, Russians or others. I will therefore repeat to this tribune that, under no circumstances, the Belgian consumer will be the dindon of the farce of this bill. Such consumers will not suffer any consequences from the determination of transit tariffs.

I would like to emphasize that, contrary to various claims heard here and there, this project will not bear the weight of the revaluation and sale price of Distrigaz by Belgian consumers through an increase in transportation rates. The CREG is a regulator whose powers we have strengthened. There must be a separate accounting; cross-accounting cannot be accepted in the field of transport tariffs, on the one hand, and transit tariffs, on the other.

This text will improve investment conditions, clarify the situation and also allow stability for operators, who will enjoy legal certainty. That is why we will vote this text with great conviction, Mr Schiltz. The future will tell us whether, yes or not, we will experience problems, whether at the European level or at the level of a Belgian court. As recalled by Mr. George, it’s not because Europe says certain things that Europe is always right. Sometimes it can refer to decisions that, in other words, are contrary to competition, but that, in reality, improve competition and the situation of consumers in a country.

I would like to respond to two points mentioned by Mrs. Lalieux. The first is about investments in the gas network. The question is more than legitimate. Regardless of the tariff system, there must be a guarantee that sufficient investment can be made in the gas network and that the fair profit margin is sufficiently high in a regulated system.

During the hearings, we asked the representative of Distrigas if he could say how much of the profit was invested in the gas network. His answer to that was: “Nothing.” They paid it fully. The system as it was and as it is ⁇ ined is not a guarantee for more investments.

Second, you said that transit has nothing to do with consumers. I have to contradict that. Since the CREG regulates both activities, both transport and transit, the CREG has been able to move to a correct allocation of costs: costs for transit on transit, costs of transport on transport. As a result, the transport price for consumers has dropped and the average consumer pays 20 euros less on an annual basis. So there is a link. This decision was also suspended today. If this draft is approved, it means that those 20 euros, which we all would have paid less, are also gone.

It has already been said enough and during the long discussions many questions have been raised. I will ⁇ not repeat this, I would like to refer to the discussions in the committee. I remember, however, that there are apparently two truths, and that it was not too clear which truth was the true truth.

I also remember that there are not always adequate or conclusive answers to the questions asked. I also note that not all answers can be given, as some important questions can only have a legal answer. Mr. George has already mentioned this. To introduce new elements, it is to wait for the final judgment of the Court of Appeal or, where applicable, the judgments of the European Court of Justice.

Mr. Speaker, I will provide a few brief answers because, as everyone has said, the discussions have been extremely long and thorough. We have been able to hear all stakeholders in this discussion, which is strongly marked – whether we like it or not – by the accents of a broader debate on the regulation of the energy market. This debate began almost ten years ago and is ⁇ not about to end.

I didn’t talk about “bad liberal politics,” Mr. Schiltz. In any case, I have no memory of it. In order for it to be bad, even if it had to be one – if you allow me this trait. I believe that the government defends clear guidelines, in particular in favour of “unbundling”, as evidenced by the government statement. It is in this direction that we are going, as we are going to file a bill that will force the dominant operator to drop below 25% in Fluxys and at the same time encourage Publigaz to enter the majority in that company. We believe that we need to strengthen our presence as a strategic public authority in certain assets such as transport facilities.

On the other hand, I do not see where – since there has been a lot of question of interpretation – you can find something similar to this manichean view opposing the regulated and the unregulated. There is not on one side the angel of liberal freedom and on the other the demon of regulation. There are sectors – transport, distribution, production – that are subject to varying degrees of regulation. But I remember that your group voted, with the one to which I belong, a reinforcement of the powers of the CREG extending to the control of producer prices, which does not fall under "stricto sensu" of regulation. I am somewhat surprised that, from the point of view of liberal freedom, you defended the idea that in such a sector market prices cannot be applied and that "cost plus" must be made at all costs.

What did we want to do here? In the article on the mechanism for fixing transit tariffs, we simply wanted to establish principles. It is not the government that sets the tariffs. They will be determined on the basis of a proposal from the GRT after agreement from the CREG. We specify these principles only for new installations by offering the possibility of blending three methods: the "cost plus" method, the project-by-project method and the market-by method.

Some are surprised that we would introduce a market pricing element in this segment by telling us that it is not competitive. As Mr. Mr. said well. George, we think the relevant market for transit is the European market because it is very competitive. Just look at the list of projects that could compete with this system.

Therefore, since this market is competitive, a market logic must be considered to fix the transit. This is not contrary to European law. In fact, there is nothing that prevents us from doing this. Moreover, this is not discriminatory since, of course, the same tariff will be applied to all shippers and it will be perfectly transparent and uniform.

Can transport and transit be treated differently? That is what we think. Ms. Van der Straeten used the metaphor of taxi. If I wanted to proceed like her, as I know she loves public transportation, I would rather keep the metaphor of trains. Thus, trains depart from Ostende to the south of Belgium. These are domestic trains, which are part of transportation. There are also other trains that depart from the Netherlands to France and pass through our territory, this falls within the logic of transit. We believe that these are two different situations that can be treated differently. This is happening in the railway sector as well as in this sector. There is no legal objection in this matter and there is a real logic in this sense.

Some say that one slides from the legal argument to the economic argument by saying that if one does so, one will be discouraged. I recall that the GRT is allowed to consider using a market component in the overall transit tariff and to make a proposal to the CREG which has yet to approve it. It is not as if it was given the full faculty to freely exercise a market price. It is simply possible to incorporate a market logic in the calculation of the tariff. And why not? Simply because some shippers might agree to pay a given rate, simply because they feel that the infrastructure is interesting and that the cost has the merit of being transparent, clear and stable over time. This may constitute, for a shipper, an economic advantage at least equivalent to a very low but less certain tariff. We can therefore consider that some trains from the Netherlands prefer to pass through Germany to go to France by bypassing the Belgian territory, regardless of the price and that others prefer to pass through Belgium because they admire and appreciate the quality of our railway facilities, the beauty of the landscape, etc. There is therefore a logic that allows us to say that not only does nothing legally prohibit doing so, but that it can also be useful from an economic point of view.

The only thing that matters to us in this matter is Fluxys. We wanted to make it independent and to ensure that, through the majority presence of Publigaz, the public authority can control this strategic instrument. It is therefore necessary to give this important company, which is Fluxys, the means to make sufficient profits to reimburse its investments or to make other expenses. We also outline the type of use that can be made with a profit margin between the "cost plus" and the market price. In the case of a small additional margin, it could be used to build a new railway line or to remunerate the shareholders of the railway company or even to better remunerate the railroads, to finish with the metaphor of transport.

This is logical in terms of legal coherence, visibility, clarity and economic profitability.

The other article of this bill that, too, makes a lot of ink flow, is an article that is also in a pure logic of legal stabilization since it is said: "This is, for us, the successor of Distrigaz in all these contracts to be discussed between the buyer and the seller." We do not say which contracts are valid because, in order for a contract to be valid, both parties must be recognized. We simply say which is the Belgian part that can be recognized. It is not our responsibility to decide on the other side.

Those 900 million stories are therefore more of fantasy and political fiction than of real calculation.

Ms. Van der Straeten says I refuse to say what is the advantage for GDF Suez. I do not refuse to say it. I am technically unable to say that. It will depend on the co-contractors and, as soon as we know them, we will be able to estimate the value of the contracts. It is so true that both sides themselves fixed a price, not 900 but 350 million, and that they estimated that this price was revisable, up or down, depending on what would ultimately be the recognition of different historical contracts.

All this to say, Mr. Speaker, that there are two short articles, ⁇ a little technical because it is a subject that is ⁇ , but simple. The sole will of the government in this project is to legally clarify things to create a context of stability that avoids this type of controversy and the concerns that some international operators may have about the Belgian market which is a moving market. The well-conscious national interest is not to fantasize about the desires of French imperialism as some do, but to establish a clear and stable legal framework.