Proposition 52K2191

Projet de loi portant confirmation de divers arrêtés royaux pris en vertu de la loi du 29 avril 1999 relative à l'organisation du marché de l'électricité et de la loi du 12 avril 1965 relative au transport de produits gazeux et autres par canalisations.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Oct. 8, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

electricity supply energy supply gas

Voting ¶

Voted to adopt

CD&V LE PS | SP Open Vld MR

Voted to reject

VB

Abstained from voting

Groen Vooruit Ecolo N-VA LDD FN

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

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Discussion ¶

Nov. 12, 2009 | Plenary session (Chamber of representatives)

Full source

There is a very difficult legislation with the above-mentioned draft. It is about the ratification of three types of royal decrees.

The first type is the royal decrees on federal contributions whose ratification period was slightly exceeded by law. The second category includes similar royal decrees on federal contributions whose term had not yet expired. The third category concerns the multiannual rates on the distribution market.

Colleagues, the federal contribution to the electricity bill is used to finance various, social and public service obligations. A discount on that contribution shall be granted for the supply of green electricity.

There has been some discussion in the committee about the possibility of retroactively approving the aforementioned royal decrees. The Minister explained that there are no objections in this regard, as there is a general interest at stake, namely the creation of legal certainty. After all, following the aforementioned royal decrees, some controversy has arisen, inter alia, before the Court of Appeal in Brussels.

In the committee was also heavily debated on the content of the respective royal decrees. Among other things, the opposition, with Ms. Plasman and Ms. Van der Straeten at the head, noted that the content is subject to discussion, which was acclaimed by a number of majority parties.

Colleagues, nevertheless, the majority has opted to support the Minister in this matter and to address the legal uncertainty that currently prevails in connection with the topics in question.

A private question addressed to the Minister from the various ranks concerned the allowance of the reduction for green electricity, in particular whether it now hit the product. In other words, colleagues, if you ask a supplier to buy 100 percent green electricity, are you completely exempt from the aforementioned federal contribution? On the other hand, is the federal contribution per supplier calculated on the total fuel mix? If the supplier concerned has 20 percent green electricity in his total portfolio, he receives a 20% discount in the aforementioned case.

Discussions have arisen about the above question, because the current regulator CREG has changed its interpretation in the middle of the original texts and the text that now precedes. We asked the Minister what the intention might have been. He answered our question that, in his opinion, the intention of the legislature, which is the government, was to ensure that it was really about a discount on the product, that is, for the delivery to the individual consumer.

Finally, Ms. Plasman has submitted amendments to change the injection tariffs for green electricity. However, its amendments were not adopted by the committee.

As I mentioned, we ended up supporting the Minister in his request for more legal certainty. He also pressed us to the heart that further discussions will take place on the content of the royal decrees, ⁇ on the distribution rates, also in the system of federal contributions. He now wants to organize a consultation to give clear wine on the subject matter.

Personally, I can add to the above that my concerns about the royal decrees, ⁇ with regard to the multiannual rates, were stirred up, because the matter was now re-examined.

Mr. Minister, you may be reassured, in this my legistic heart follows you a little. I would like to inform my colleagues that legal certainty in this troubled matter must indeed be a first step. There were a lot of comments. I remember the debates that preceded the adoption of the texts and which were very intense. But, Mr. Minister, in the committee I have invited you to promptly proceed with your consultation and take over the global distribution and transit market, and I want to do so now.

President: Patrick Dewael, President

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, Mr. Speaker. All publications of the forum are listed above in the name of the public interest and the legal certainty. The opinion of the State Council is therefore not minor.

The fact that no one knows how it is all together was very illustrative. This was noted during the discussion of Article 20 in the committee. It was just about the impact of the replacement of two words and there was hilarity widespread. I am referring to Article 24 on the exemption from the federal contribution for the purchase of green energy. Uncertainty at all! Mr Schiltz has recently confirmed this.

I think we are here to deliver quality-good laws, and not to blend into tricks, which instead of legal certainty give even more uncertainty.

As Mr Schiltz said in his report, there were also discussions by colleagues from the majority. They have not forgotten that, but in the meantime they of course support the minister in the vote. Nevertheless, I would like to call on them to support our amendment on the abolition of the injection rates. I think that fits perfectly in the context of the government’s climate policy and energy policy – and I have reviewed Mr. Magnette’s policy note.

Why should we further tax green production, renewable energy and cogeneration with additional tariff contributions, while those are easy to eliminate? Since Mr Magnette has not formally requested the opinion of the CREG, we propose that he do not do so anymore and that we approve the amendment at a later vote so that those contributions are deleted.

Why is there no advice from the CREG? Mr Magnette also did not ask the CREG for advice to include the injection rates in it. They can also simply be removed.

Another reason to support this is that there was a consensus in the committee, but also in the Consultation Committee. That is an additional argument. No one is against removing. The only argument concerned that opinion of the CREG. I think that we can drop that measure given the current situation and accept the amendment.

Mr. Speaker, as Mr. Speaker said. Schiltz, this bill aims to obtain legislative confirmation of various royal decrees taken under the Law of 29 April 1999 on the Organization of the Electricity Market and the Law of 12 April 1965 on the Transport of Gas Products. The absence of legislative confirmation leads to serious legal uncertainty since, from now on, any decision of the CREG approving or rejecting tariff proposals submitted by network or distribution operators is likely to be annulled.

Mr. Minister, you do not ignore that there is a small concern in the approval of Articles 24 and 34, which determine the modalities for exemption from the Kyoto components and denuclearization of the federal contribution for electricity produced from renewable energy sources or quality cogeneration units. The way the text is worded poses an interpretation problem that needs to be clarified.

In fact, the law of 29 April 1999 organizes a federal contribution and provides for an exemption for certain parts of that contribution for customers who have "green contracts". The parts of the federal contribution thus exempted concern, on the one hand, the contribution of a fund for the denuclearization of nuclear power plants and, on the other hand, the establishment of a support fund for policies aimed at achieving the Kyoto objectives.

It was logical that customers who chose green electricity would be exempt from participating in the creation of these two funds. The law speaks very correctly of “exemption based on the share of electricity supplied to final customers and produced from renewable energy sources or quality cogeneration units”. In other words, a consumer who has a 100% green contract is entitled to a 100% tax exemption and a consumer who has a 30% green contract is entitled to a 30% tax exemption.

The exemption is therefore proportional to the amount of green in the customer’s contract, which is quite logical and consistent. All suppliers acted in this way to grant the exemption. Article 24 of this bill speaks of exemption based on the total proportion of primary energy sources, which was not the will of the legislator when drafting the 1999 law on the organisation of the electricity market.

This would imply that the same consumer would only be entitled to an exemption based on the percentage of green included in the overall fuel mix for all supplies for the entire customer base of that same supplier, rather than the percentage of green included in the fuel mix of the product supplied to him individually.

The CREG accepted the exemption of the Kyoto and Denuclearization components from the federal contribution per product supplied until the end of 2007. However, it informed at the end of 2008 that it changed its interpretation of these terms for reporting since 1 January 2008 and that it accepted exemption only based on the overall fuel mix of each supplier and not based on the fuel mix of the product supplied to the customer concerned. This would require suppliers to correct all their invoices.

We believe that this interpretation is discriminatory because it would involve differences in exemption for the same product among different suppliers. A customer with a 100 % green contract with a supplier who also sells non-exclusively green contracts would no longer benefit from a 100 % exemption since, according to the CREG, that supplier must grant an exemption based on its overall fuel mix to its entire customer base. Conversely, this would also mean exempting customers who have a grey contract.

A customer who has a green contract with a new supplier would not benefit from any exemption because the latter does not yet have a global fuel mix approved by the regional regulator. A customer with a 100% green contract with a supplier that only makes green would benefit from the 100% exemption.

The origin of the modification of the interpretation of the CREG is likely to lie in the finding of a significant difference between what it had estimated for the Kyoto and Denuclearization Funds and the real income.

Mr. Minister, in committee, together with other colleagues, in particular Mrs. Partyka, Mrs. Van der Straeten and Mr. Schiltz, we asked you in this regard and you were very clear in your answer. Despite this, the next day, the CREG persisted in interpreting this text differently and even urged suppliers to execute themselves. I find that this process is limited and it is incredible that your interpretation is challenged so by the CREG.

So I come back today in the plenary session, on the one hand, with the same question and, on the other hand, to ask you for which years this interpretation is valid? In other words, what about 2008 and 2009?

Furthermore, can we hope that a concertation between the protagonists, the CREG, the suppliers and your office, can be set up as soon as possible in order to put a quick end to this problem that could become very unpleasant for green electricity consumers?

Mr. Speaker, before discussing this draft, I would like to refer to the committee’s report, on which we exchanged views extensively. I would like to join the colleagues on the demand for a solution to the problem of reducing the federal contribution on green electricity.

Mrs. Tinne Van der Straeten has registered, and also Mr. Van Noppen.

Mr. Speaker, colleagues, a debate like this often leads people to the conclusion that energy debates, when it comes to the electricity law and the gas law, are a complex, technical and difficult matter.

It is my opinion that the electrical or gas matter as such is not technical or difficult or complex, but that today we have a law of electricity and gas that is very complex at once and that contradicts itself in various points. I look forward to the Minister’s commitment. He said this week in the committee that his intention is to coordinate both laws, make them coherent and remove the contradictions in them.

The design presented here today in the Chamber introduces a number of new contradictions. In the committee we have noted a number of technical issues. What we are asked to do here today, namely to proceed to a legal ratification of various KBs, is a very brutal technique in which we miss the opportunity to correct a number of errors that have been made in both laws.

The technique of legal validation is a very unusual technique, especially if it is used to cover up any irregularities that have been broken into the various KBs. This is not the case for some KBs, in particular those KBs that relate to federal contributions, where the Electricity Act itself provides that a legal ratification must follow within 12 months. However, for the last two KBs of the design, this is absolutely not the case.

The last two KB of the draft are two KB relating to the multiannual distribution rates for both gas and electricity. There is absolutely no legal ratification registered in the law. That legal validation is requested from you today because there are large discussions about the content of the relevant KB.

It is about multiannual tariffs for distribution, both for gas and for electricity. Distribution accounts for about one-third of your invoice. Techniques to control the distribution rates, not to force the pan out, are extremely important.

We have several conflicting interests. On the one hand, there are the distribution network operators, who, of course, must be able to finance the investments they make in their networks, their costs must be reimbursed. On the other hand, there are the shareholders of the distribution network operators, the municipalities, who have an interest in high rates for their income.

These are two things that can be conflicting. Hence the importance of a good regulator who can balance both interests in a good way against each other, who can especially very strongly monitor the costs submitted by the different distribution network operators and who can eventually reject costs.

Mr. Minister, we have been standing in the committee for a long time, in various hearings. It is my opinion that the KB leaves a lot of possibilities there, especially in connection with cost management. Your two KBs have also resulted in drastic increases in multiannual rates, especially in the south of the country, up to 30 percent in certain municipalities.

I regret this. I also think that there is still some fat in the distribution tariffs that we can cut off. The CREG has demonstrated this convincingly in Parliament. I am not talking about reimbursement of costs for pension funds or investments in the networks. It is obvious that this is in the tariffs. However, it is equally obvious that the regulator in the KB is given the necessary powers to assess the costs on their actuality and can incur the excessive costs there.

This KB has caused a lot of discussion, including before the court, because of the way it was made. The regulator has made a proposal as provided for in European Community law. Subsequently, the King in the proposal of the regulator changed a number of things. This was pointed out by the State Council, and this was repeated in its opinion to this draft, that it is not up to the King to amend a tariff proposal of the regulator. It is only up to the King to accept or reject it, but not to make its own changes, even if this happens at the request of the CREG itself. This is a mistake that the CREG has admitted in Parliament itself.

I think it is a great shame that that illegality here today is covered by law, especially if we know that Belgium was condemned by the European Commission last week because of a similar provision. It was about article 12novies of the Electricity Act and the establishment of distribution and transport tariffs for interconnection capacity for projects of national and international interest. You said in the committee that you would use the same words in the new article to meet the judgment of the European Court of Justice, namely that a KB is adopted on the proposal of the regulator. Just in relation to that KB, we have identified how something that may not be contrary to EC law juridically-technically can be misused in practice. With the multiannual rates, it has been abundantly proven that it was misrepresented in practice.

For the same reason, Mr Plasman, I can hardly support your amendment on the injection rates. Basically, I totally agree with you. I think that what is contained in the KB regarding the injection rates for a part belongs to the competence of the Regions and then especially with regard to the support mechanism for green electricity. The various regions have a system to support green electricity. If an injection rate is imposed simultaneously in the KB, this is contradictory and will ⁇ not promote green energy.

However, colleague Plasman — to be coherent with myself — it is up to the regulator to establish the rates and at least the tariff methodology. I was against the Minister or the King to make changes to the Royal Decree. I also think it is not up to the legislator to change these things. It is up to the regulator, and only the regulator, to change the rates and the tariff methodology.

Following the discussion that arose during the consultation committee, initiated by the regional ministers Mrs. Van den Bossche and Mr. Nollet, it was also decided that the CREG will come up with a new proposal on the injection rates. I hope that the outcome of that new proposal will indeed be that those injection rates, as they are now contained in the royal decree, are not in place there because they actually contradict the regional powers.

Mr. Minister, if that is the case, then I also hope that you submit a bill to change that. Today, you are asking us for the legal ratification of two royal decrees. That is to say that these laws become laws and that they can only be amended by law. I therefore expect from you, if there is a new proposal from the CREG—which normally must be poured in a royal decree but which by the current legal ratification will have to be poured into a law—that you, as competent minister, will not wait, even not two months, to implement that law change. I think that the development of green energy is at the heart of all of us. Renewable energy producers should ⁇ not be left in the cold, should the CREG come to a different conclusion, which I effectively hope.

I would like to say that with regard to the multiannual rates.

Now I want to talk about the federal contribution.

Regarding the federal contribution, I have already said that the law provides that the legal ratification must be done anyway. The government had forgotten that for many royal decisions. I think that the government has forgotten a royal decree in the whole list of the listed KBs, in particular the KB of 21 October 2008 fixing the amounts intended for the sanitation of the nuclear churchhouses in the Kempen, BP 1 and BP 2, two nuclear liabilities for which in the past no money was provided and for which the costs of the sanitation must actually be collected through the electricity bill. At the time, this was fixed by Mr Deleuze at 55 million euros per year. It was a five-year program. You have introduced a new five-year program in the KB of 21 October 2008, in which you handle the amount of 55 million.

In the margin, I could note that I think the sum of 55 million is on the low side. You have said yourself in the committee that for the sanitation of both sites, BP 1 and BP 2, the most recent estimate it has about 884 million euros. The work is currently underway and will have to continue at least until 2020. 55 million euros per year, to reach 884 million. I think the sum of 55 million was estimated on the low side. It might be a good thing to start indexing those amounts.

55 million in 2003 is already slightly different from 55 million today. If we clarify that now again to five times 55 million, I think we are really at risk of not reaching the necessary amount of 884 million by 2020. Then we also run the risk that the consumer will have to cough out a very large amount at that time.

I have made an amendment aimed solely at confirming by law the KB that you have forgotten, in particular on the nuclear liabilities BP1/BP2. The deadline has not yet expired: it must be done within 12 months. We have one and a half months of time. This prevents us from having to meet in high urgency at a later time to enforce KBs. At least that has already happened. It is possible that at a later date, however, the indexation of those amounts may still be provided.

The Electricity Act does provide for a legal ratification of the KBs that deal with the federal contributions, but this is not the end of the shoe. During our committee meeting and also here with the previous speakers, it has been shown that there are still a large number of interpretation difficulties with regard to a particular content of a particular KB, namely the exemption for green electricity. I think you were clear about this in the committee. You said there that the exemption for green electricity does indeed apply per product and not for the entire fuel mix of the suppliers. Apparently, however, this continues to cause some commotion and opposite interpretations. I believe that a law can only be interpreted according to the will of the legislator. If it is the will of the legislator that the exemption applies per product, everyone has to adhere to the interpretation of the legislator. If that continues to cause problems, I wonder if there are no technical solutions possible, in the form of an interpretative note or something else. In this way, it can be established what was now the original will of the legislator.

Today, one aspect of this is highlighted, in particular the exemption for green electricity products, but I do not rule out that several other interpretation difficulties will emerge in the future. This is due to the fact that our two laws, namely the Gas Law and the Electricity Law, lack coherence and contradict each other on certain points. I hope, Mr. Minister, that this can be resolved by the coordination you promised in the committee.

I also hope that that coordination can come in Parliament before your term has expired and that at least this legislature can be concluded with a coherent law. This is ⁇ true as we must soon, before 2011, move to the transposition into domestic law of the Third Energy Single Market Package. That package will be very comprehensive, both for the Gas Act and for the Electricity Act. I think it is a good thing if we can start with a clean lease and not have to build different leagues every time, as we do today again.

I can be very short. Our group will abstain for two reasons. The first concerns the course of affairs. Several KBs were validated for various reasons and thrown into one pile.

You expect that Parliament will ratify it. It rattles on all sides. The Parliament is used to correct the negligence of these and previous governments.

The second grounds relate to the system of injection tariffs in the KB of 2 September 2008. Tariffing is still the competence of the federal government, but it is clear that the injection rates will have a major impact on the regions’ renewable energy policy. The CREG was asked for an opinion on this subject, but that advice is not yet there and it seems to me therefore more than logical to wait first and only later to provide the legal basis for it or not.

Mr President Mr. Clarinval asked a very clear question in the committee to which I tried to give an equally clear answer. He again asked this question today and I confirm, with the same clarity, what I said in commission. With regard to these derogations, according to the Government, the interpretation to be given concerns products up to the year 2009. For the following years, the issue will need to be clarified and it will be legally in the coming months.

Regarding the amendment of Mrs Van der Straeten, I know that these two KBs need to be legally confirmed. This is provided in the law containing various provisions that will be discussed here in the coming weeks.

As for Mrs. Plasman’s amendment on the injection rates, we have indeed reached an agreement in the consultation committee. We have decided to ask the CREG to examine that possibility, but also to examine the impact of such a derogation on the different categories of consumers. Based on the findings of the CREG, we will see if it is economically and socially relevant to change the law in this way.

I also confirm what I said in the committee on this subject; these two gas and electricity laws have been heavily modified in recent years. They have been done by application of provisions of European law and also simply by changing political priorities, to the point that they have sometimes become unreadable. There are many areas of shadow and legal uncertainty. I have already asked both the administration and the CREG to examine the possibility of a legal consolidation of these laws to clarify their scope, to make them more legible, to identify any possible legal ambiguity and to ensure that when we enter into the transposition work of the Third Directive on the liberalization of the gas and electricity markets, we can do so in the best conditions of legal clarity.

Mr. Speaker, I would have liked to have known from the Minister when he will now ask the CREG for advice. Two weeks ago I was told that it was already requested, but it is still not requested. If you want to receive advice by the end of the year, you will need to apply for it soon.

Mr. Speaker, Mr. Minister, the answer on the exemption for green electricity strikes me a little, because it is different from the answer you gave in the committee. I read it in the report. The report only states that you say that the exemption applies per product. Today you say: “Alleszins until 2009. In the years to come, we will see more.” I do not think that this works in the hands of legal security.

It is a legal ratification with retroactive effect which is valid unlimited. It does not state that this ratification is valid for one, two, three or four years. No, that legal ratification applies to the past, to the future and to the next order. Today, the Minister says he wants to maintain a certain vision until 2009 and will think about how it will look after 2009. I find this ⁇ unclear for the suppliers, as it will have a great impact for the suppliers. I am concerned about the Minister’s response. I think it is better to have an unambiguous interpretation and to interpret it as such, and therefore not to change it for the oatmeal.

I will address the question to the CREG as soon as possible.

As regards Mrs Van der Straeten’s last comment, I have indicated the interpretation to be given until the end of 2009. This is where we need clarity in order to be able to make the right decisions. For 2010, I did not say that we would adopt another system, I said that we would clarify things.