Proposition 53K1931

Projet de loi relatif à l'organisme fédéral d'enquête sur les accidents de navigation.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Dec. 2, 2011

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive transport accident maritime safety transport safety maritime transport

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld MR

Voted to reject

N-VA LDD VB

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.

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Discussion ¶

May 10, 2012 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, dear colleagues, the bill examined by the Infrastructure Committee at its meetings on 17 April and 2 and 9 May 2012 aims at the creation of a federal body for the investigation of shipping accidents (OFEAN). It partially transposes a 2009 European Directive laying down the basic principles governing the investigation of accidents in the maritime transport sector.

This directive draws lessons from the past. On December 12, 1999, the Maltese oil tanker Erika sank off the coast of Brittany. On 13 November 2002, the oil tanker Prestige, flying the flag of the Bahamas, suffered the same fate 270 km from the coast of Galicia.

It was proven that at that time there was no compulsory international regulation for carrying out a technical examination on the origin of a shipwreck or incident and, more importantly, to issue recommendations for improving safety.

The draft law, examined after Belgium received a reasoned opinion from the European Commission for delays in transposing the Directive, provides that the UFEAN is autonomous and functionally independent, in terms of its organization, legal structure and method of decision making, from any party or body whose interests may be incompatible with the tasks entrusted to it.

The draft law is closely in line with the recommendations contained in the report of 3 February 2011 on behalf of the special commission responsible for examining the safety of the rail network in Belgium following the dramatic accident in Buizingen.

The committee discussions mainly addressed three topics.

The first is the consultation with the regions. Several members are concerned about the outcome of this consultation. The Minister specifies that the Flemish government has issued a negative opinion on the bill. There have been amendments to the text. Thus, the competences relating to the common maritime management for the Escaut area are specified, as well as the coexistence and the respective roles of the UFEAN, which focuses on safety, and of the Escaut Water Safety Commission, responsible for operational management. Inland navigation was also excluded from the project following the negative opinion of the Flemish government.

The second issue discussed is the independence of the investigative body. Members question the independence of the investigating body and its staff. How will the agency recruit experts? Is integration under the SPF Mobility and in part under the supervision of the Minister rather than within an agency independent of the administration the best solution to guarantee the independence of this body? Shouldn’t the path of an agency bringing together all the existing investigative bodies have been preferred?

For the Minister, it is important to have structural financing that does not depend on the government’s annual budgets. This should ensure revenue independence. It is also of the opinion that recruited personnel should be hired to work for the organization on a fixed basis and not be, for example, detached from the administration. These persons shall be directly under the authority of the Minister and the reports they shall prepare shall be published.

If the director is subject hierarchically to the minister from a purely organizational point of view, he is not subject from a functional point of view. This implies that the Minister cannot give instructions to the Director regarding the conduct of his investigations.

The third topic addressed concerns the sources of funding of the investigative body. To the questions asked by the members of the commission, the minister indicates that "the ports are, indeed, not in agreement with the principle of the mode of financing held by the bill. It will be necessary to ensure," continues the minister, "that ports can easily attribute these contributions to their customers."

Amendments are submitted by Mr. Geerts and consorts, aimed at clarifying the method of financing the investigating body. In particular, it is necessary to clarify that, in addition to the remuneration due by the operator for each Belgian ship, a remuneration is also due for ships flying a foreign flag, which float in the Belgian ports of Antwerp, Brussels, Ghent, Liege, Ostende and Zeebrugge.

This amendment should respond, according to the authors, to the reluctance of the port sector. The remuneration comes to fuel the creation of a budget fund relating to the functioning of this investigative body.

Following the discussion, Articles 1 to 14 are adopted successively without amendment by 10 votes against 1. All amendments to Article 15 are approved. The whole draft as amended is adopted by 11 votes against 3.

Mr. Speaker, colleagues, the introduction was broadly given by Mr. Balcain. I will only refer to the specific point that was discussed.

We know that there are some problems in terms of financing and the like. The Flemish government has issued a negative opinion on the draft law at the request of Mrs Crevits. If I am not mistaken, it was never revoked. Therefore, the debate continues on both the funding of the Fund and the amounts to be raised by the ports.

Although Mr Geerts’ amendment addresses a number of concerns, at the same time it provides that the fund established with the 800 000 euros to be raised by the ports, whether or not counting on the ship owners, is drawn annually. Anything that has not been spent will be used at the end of the year to pin the budget. This approach leads to the maximization of contributions. After all, the year in which the most resources are needed is determining the amount of resources flowing into the budget each year. Of course, these are not enormous amounts; it is only about 800 000 euros. Each time that extra burden, of course, brings something up.

We also know from a majority amendment submitted to the Committee on Finance that only 635 000 euros of expenditure have been registered. That is, if we collect 800 000 euros every year at the ports, we simply reduce 20% to make the budget look a little more cheerful. In addition to the general and article-based discussion, we discussed this with the Minister. He was able to tell us that the money was needed to cover the housing costs of those sitting in that federal agency. Thanks to the explanatory memory, we also know who is all part of that federal agency. These are four experts, including a director, and an administrative expert.

Therefore, it is a matter of 5 employees, representing 165 000 euros in housing costs. Per employee and per month, we pay as little as 2,750 euros. I browse to some real estate sites and I found several riding villas in the Flemish edge to rent for that exact amount. If you hire 5 of them, the officials will be very satisfied. They will even flow with bushes at the same time to apply for such a job, including sauna and swimming pool.

The budget is largely overstated. I think we can get it down, in the interests of everyone. I have taken the effort, as you, by the way, recommended in the committee, to submit a first amendment, which ensures that the budget is reduced, so that we do not catch more at the ports than is actually necessary. I also submitted a second amendment to address the perverse effect of the automatic transfer to the budget. In this way, the shocks in the annual spending, which are undoubtedly there, can be recovered within the fund, and you have the opportunity to revise the amounts at regular times. For example, you can return a portion to the ports, which are of course at your heart.

Mr. Speaker, after Mr. Wollants, who, as agreed yesterday, explained his amendments, I would like to make a general presentation, since it is important to discuss the broader context of the text that presents.

The aim of the Directive is to increase maritime safety and prevent pollution from ships. It is now intended to set up an investigative body to prevent, for example, possible shipping accidents in the future. That is the essence of the story, which we need to talk about here today. The draft law establishes the Federal Authority for the Investigation of Shipping Accidents, abbreviated FOSO, which should be an independent body.

In order to allow the FOSO to operate independently, it will be financed through a budget fund to be established. There is then a discussion about the size of that budget fund and the nature of the resources to be deposited in it. Initially, we also received comments from the ports. Therefore, we have submitted a number of amendments regarding funding, which I have also explained in the committee. The ports can now make a recovery for ships that do not sail under the Belgian flag. However, they are not obliged to do so. I think we solved the problem with the amendments. We have therefore done additional work in Parliament to meet the demand of the ports.

For me, the most important thing is that the text is approved, so that effective work can be done with the establishment of an authority dedicated to the investigation of shipping accidents and the enhancement of safety. That is the fundamental debate, not the debate on the amendment submitted here.

Mr. Speaker, Mr. Minister, from the beginning, I would like to say that we support the bill under consideration because it will allow, as it has just been mentioned, to take measures based on the recommendations of the investigating body to improve maritime safety and thus reduce the risk of accident or incident, save lives and protect the submarine life and our coasts.

I would like to return to the question of independence, although I do not want to repeat here the debate that took place in the committee. It is good to have a budget fund, to feed the latter, but it is also necessary that the funds are regularly transferred to the investigative body. It is good to have a framework, but it must be filled. Measures shall be taken without delay if, in view of the task and tasks entrusted to the investigating body, it proves that the framework provided is insufficient.

This country is full of regulatory, supervisory and investigative agencies that are very often, if not always, seeking additional means to fulfill their tasks. We will therefore be ⁇ attentive to the evolution, which we hope to be positive, of this investigative body.

Finally, I would like to address another much more positive point, Mr. Minister, which has not been discussed in the committee. I want to talk about cooperation with the judicial authorities and the tools given to the investigative body, the UFEAN, to properly carry out its tasks.

Many articles clearly specify the qualifications that are given to the investigating body to carry out its tasks. The text of the bill that is submitted to us today also provides for consultation with the judicial authorities, with the investigative judge in charge of the investigation. This seems to me all the more essential since the report of the Rail Accidents and Incidents Investigation Body shows that the lack of cooperation with the instructors was a barrier or prevented from drawing a series of conclusions from the Buizingen disaster investigation. This passage of the discussion text is therefore essential to us. It could also be useful to inspire the law on the safety of railway operation.

Mr. Speaker, Mr. Minister, colleagues, it is logical that a shipping accident is being thoroughly investigated. They must have the necessary instruments to conduct the investigation in full independence. It is also logical that Belgium, in accordance with European regulations, follows this.

Two things are not logical. First, the way of working and the creation and, secondly, the financing.

We will clearly approve everything here today. We recently had a discussion in the Chamber Committee. This is a 2009 European Directive. Apparently everything has been in the refrigerator for three years. Now they blow off the dust and quickly chase it through the Chamber.

The photocopies are still warm. Yesterday we even had to vote on the entire draft law. Today it must and will be approved. One of the reasons why one suddenly wants to hunt through it quickly will have to do with the criticism, not so much with the criticism from the opposition — which one wipes away; one is, after all, accustomed to being always against it — but especially with the criticism from the port sector, namely Antwerp, Brussels, Gent, Liège, Oostende and Zeebrugge. This is especially true of the Flemish ports.

The criticism of, especially the Flemish, ports cuts wood. The arguments you have given in the committee, Mr. Minister, do not stand aside. They ⁇ do not meet the criticism of the Flemish government, nor, and that is much more important to me, the criticism of the ports.

We have already had a cautious debate on this in the committee. When colleague Geerts during the meeting came to commission a series of amendments, you said that they will come at the request of the ports. Your defense line was that they served to meet the criticism of the ports. Unfortunately, Mr. Minister, if I look at the outcome of those amendments, it does not meet the criticism of the ports at all, because the situation has remained unchanged.

They may now be able to use the law in part to demonstrate that they have the authority to tax the ships that under foreign flag enter the Flemish ports or Luik, but that was not so much the criticism of the Flemish ports.

The criticism of the Flemish ports was much more pertinent and you have silenced it. Therefore, Mr. Minister, I will repeat them for you.

I have already said that it has taken its time until this file lay under a thick layer of dust, then suddenly accelerate in the committee. On 7 September 2011, they already wrote a letter to your predecessor, Secretary of State Schouppe. When I say “they,” I don’t mean the least. It was not just a bitten port boss, but Eddy Bruyninckx of the port company of Antwerp, Joachim Coens of the port of Zeebrugge, Daan Schalck of the port company of Gente and Paul Gerard of the port company of Oostende. Accidentally all Flemish ports that pulled at the alarm bell!

Apparently this was not enough because they repeated this on March 9 of this year. They reminded them of their letter. You shake no, Mr. Minister, but your name is in the head. I apparently have a document here that never arrived on your desk. I will send you a copy soon. On 9 March, the same port bonds have again sent you a letter, ⁇ addressed "to Mr. Vande Lanotte, Minister of Economy, Kunstlaan 7 in Brussels", although you may have moved in the meantime. They then reminded you of their demands. Since you shake no, I will remind you a moment.

They say that these designs have a great impact on the international appearance of the Belgian maritime ports and therefore also on our competitive position. Belgium, as one of the few European Member States, chooses to have the maritime ports pay for this investigation body. According to them, it will be very difficult, given the international, highly competitive context in which we operate and the current, difficult economic situation, to account for this contribution to their customers.

On 7 September, they already warned of the consequences if they would transfer these costs to their customers. You say that they do not have to account for this because they can also pay for it with their own resources. I invite you to examine the budgets of those ports and to see if they have a margin to pay 720 000 euros. You may have made sure that there is a savings pot in Oostende, but I can assure you that in other ports such savings pots are not present. They can use those coins for other, more useful things. The ports rightly point out that in most European countries it is precisely the government that ensures the financing of such a research body. In Belgium, one always chooses the easiest solution when one is faced with a lot of expenses — one then increases the taxes. Here a tax is imposed on the ports, on the turnover of the ports, on the number of foreign ships that enter those ports.

I am not yet finished with the criticism of the ports. They say that this new legislation de facto represents a tax increase for port companies. I am not saying that, but the Flemish ports say that. Even the port of Oostende appears on that letter, Mr. Vande Lanotte! Apparently your direct lines, even with the port of Oostende, are not of that quality that you are aware of their point of view.

I will quote another last passage from the writing of which you have no knowledge. “All of this has a great precedent value. Maritime ports are obliged to pay for anything that is completely separate from their actual activities and from their social purpose, and whose activities do not bring them any benefit. The current method of financing therefore seems to us unfair and inappropriate.” to this extent a slightly more objective source than a member of Parliament.

Mr. Minister, I have not heard you in any way in the committee motivate how you deal with it and what response you have to it. All you do is maintain the system. You even go a step further. At the request of your party fellow Geerts, an amendment was even added to the point that if FOSO has a surplus this year — God beware that there are still government companies that do not make money pounds, but have surpluses — this will not be refunded to the port companies that have paid this tax. No, then it goes to the state treasury, so even the profits you take for your account.

This shows a very high level of cynicism. Not only do you enter a tax, so-called to finance this agency, but if there would be money left, you will even circumvent it. This is ⁇ cynical and little deontological in relation to the Flemish ports. This is especially true of the Flemish ports. You should be ashamed.

We talked about the ports, but also about the Flemish government. I refer to an opinion of the Flemish Government of 24 June 2011, which was never withdrawn or revoked and no new opinion was received. Per ⁇ the postman has hit you. I quote from that opinion: “There can not be agreed to a preliminary draft law that endangers the competitive position of the Flemish ports.”

I suspect that ministers Lieten, Smet and Van den Bossche, members of your own socialist party, were also at the table when this advice came into the Flemish government. Per ⁇ their attention was also distracted, as in your case, and they were too busy with tweets to reject or rewrite this advice.

The Flemish Government also argues that there are insufficient guarantees for the impartiality of the investigating body and that no responses can be given to the draft investigation report.

I think the Flemish government also gives you a thick tube. The ports have given you a zero and I think the figure of the Flemish government is ⁇ close.

In the committee, I voted in vain against the articles and the whole draft law. I give you another chance to repair the injustice you are now inflicting on the Flemish ports, in a sense. I have submitted an amendment, not so much aiming at eliminating the profits you hope to generate with this research agency and depositing them in the state treasury, but that you are invited to at least display the fairness and decency to return any surpluses to those who have contributed, the Flemish ports and Liège, to those who have to pay this hidden tax.

In the same order, we can understand and approve the criticisms and amendments of the N-VA. That is the least we can do. In times of economic crisis, in times when the ports also feel so, such a measure should be able to be taken.

You can now change something.

Mr. Speaker, dear colleagues, I am grateful for the comments and I will now try to answer them.

First, I would like to thank you for your comment on the follow-up of the reports. I think it is especially important that the reports are public, consultable.

Since the report is not set to determine criminal liability, even anonymous statements can be used. It is clear that the prosecutor’s office can check its content and, if necessary, act like Parliament who will be able to check what is in the report. It is important to be able to verify whether the planned methodologies need to be improved.

In my opinion, it opens up the possibility of prosecution.

I will try to answer Mr. Wollants’ question, which I consider to be a more than reasonable question, as in detail as possible. I will be happy to answer the cynical comment first. I play the ball back. I note that the safety of ships is entirely independent of the activities of the ports. That is fantastic. You stand behind the above-mentioned position, Mr Wollants.

However, the safety of ships is not entirely separate from port activities. Although it is argued that the safety of ships has nothing to do with our social objectives, I believe that the safety of ships has everything to do with the social objective of the ports.

Therefore, I consider the argument contained therein more than cynical. A port administration that claims that maritime safety has nothing to do with port activities is at least cynical. After all, such a claim means that it will do the trade and that we must do the rest. Such a statement is cynical.

If such a ruling arose from organisms that do not make a profit or from organisms that, when they make a profit, also pay taxes on their profits, it would possibly still be understandable.

Let us take the situation as it is. Take the situation of the port of Antwerp. I do not misuse the port mentioned.

The port of Antwerp generated a profit of 80 086 000 euros in 2010. He paid 13,000 euros in taxes.

Can an organization that generates a profit of €80 million, with the depreciation deducted – so do not use the word “investments” – and which pays taxes on the profit of €13 000 be required to make a security contribution of €450 000? You answer no. I answer yes. We can do that.

Mr. Vande Lanotte, your argument is short through the curve. You pretend that the port of Antwerp puts the profits for the rest in its own pockets and goes out as dividends, while they are reserved for the huge investments that the port will have to make in the coming years. There are hundreds of millions of euros in investments.

I can hope. If the port makes 80 million euros of profit per year and only pays 13 000 euros of taxes on it, the port must already be able to spend many hundreds of millions of euros in order to be able to justify such conduct, isn’t it?

I really know that very well. That is why I dare to present it here in such a relevant way. The federal government requests to take security measures in the amount of 450 000 euros for a profit of 80 million euros. Such a demand means that the port pays a total of 0.27 % of the profit for security. If the port considers that such a question has nothing to do with the port, it has a completely different opinion on the matter.

Take the example of Zeebrugge. I do not miss the ports. I’m not saying it’s not good for them to make that profit. But then they must also want to cooperate on equally essential matters. What will happen if an accident blocks the port? Should it be said that the accident has nothing to do with the core activities of the port? No, then it will not be said. Then one will say that secure access is essential for the port. I therefore do not agree that a contribution of 458 000 euros to a profit of 80 million euros is considered too much. I think what we have requested is a fair contribution. This applies to all ports. I have the figures from the other ports and I think that they shouldn’t joke about it and that they should pay for it.

Second, there is indeed a discussion about the fact that the money that was not spent goes away. This is indeed a difficult choice. Traditionally, the trade minister wants to keep that money and he hopes to create some reserves so that he may someday be able to reduce the contribution. The Minister of Budget – I was the same before – is traditionally afraid that there will be a damper there and more spending, which will hinder the next budget.

We decided to be very conservative in the beginning. If we allow reserves to be built up, we will probably also allow additional expenditure to be created at some point. I can accept that criticism: the measure cuts on two sides. If one says that one will always round the fund, there are dangers, but those are also there if one allows one to keep the money.

I told the committee to review that decision and to determine exactly what amount is needed so that income and expenditure can be matched as best as possible. Again, I understand the criticism, but note: it’s a two-sized sword.

As promised, I checked where the $165 million came from. I understand your criticism that a sum of 2 000 euros per man is unacceptable. But this amount is not just for the rental.

The FOD Mobility has established a principle, which, by the way, applies not only to the relevant fund, but also to others. There is only one thing that needs to be done on this subject. The principle is that when you provide employees with housing; you provide lighting, heating, logistics and personnel service, a B&B service and ICT support services. The management committee has taken for itself the directive to request 28 000 euros per person in that case.

Well, the FOD Mobility has examined that directive behavior and, after benchmarking, found that 28 000 euros per year per employee is correct. 28 000 euros, by the way, were approximately what was demanded for one or two employees of the Railway Safety Fund. There were a total of 34 000 euros or 38 000, I think, for one or two persons. In the meantime, there are more people there and the amount has yet to be calculated. For the current budget, this has not yet been done, but the same calculation is used.

It is estimated that about 800 euros will be spent on the rent and 670 euros per person per month for the office space. I do not think that is completely unfair. It can be discussed for a long time, but it is not exorbitant. This includes the rental of garage spaces and the like. I think this is a correct calculation. There is P&O and B&B support, there is IT support for the network, email traffic and bureautics. Thus comes to the flat price, which is applied here.

The Board of Directors has fixed the total amount in tempore non suspecto. It is counted as 5 times 28 000, so 140 000, with a margin of 25 000 euros for unexpected costs. If that amount is not justified, it cannot be deposited, as it corresponds to the amount for extraordinary expenses.

That 5 times 28 000 euros cover the costs of accommodating the service. I think it is a correct way of working. The margin is 25 000 euros. It is clear that the amount not spent by the FOD does not have to go to the Treasury during the evaluation. The fund can use that money.

I repeat that after 1 or 2 years we should make a good assessment of what the precise, reasonable costs are. Now it has been calculated for 5 employees, but an exact estimate is not evident.

The openness I can guarantee you in any case, as long as I have something to say about it, of course.

Mr. President, Mr. Minister, I take note of your answers. You play the ball back very easily by saying that you find it testifies to a ⁇ great cynicism that the ports say that the safety of the ships is not their business.

Well, I hope that you will reach out to your colleague Jannie Haek with the same conviction. When it comes to rail safety, Mr. Haek is, in fact, like the chickens to refer to Infrabel and to Mr. Descheemaeker of the NMBS, saying that he is solely responsible for the stations and all subsidiaries, while Infrabel and the NMBS must ensure that the trains drive safely. Per ⁇ you can point out Mr. Haek, because you can see him from time to time.

I also note that you do not object that the amendments to the draft law respond to the criticism of the ports.

My predecessor, Mr. Schouppe, held a meeting with the Flemish government. The Flemish government then agreed to Mr. Schouppe’s procedure.

So far, the Flemish government.

In any case, the criticism of the Flemish ports was not refuted with the amendments. However, they were motivated, among other things, by Mr. Geerts, who said that the criticism was met. I have subsequently formulated this criticism.

Finally, you are talking about the famous profits that port companies make. I was somewhat surprised to hear that, for example, the port of Antwerp makes so much profit. Therefore, apparently there are still companies in which the government participates that make profits. Most of such companies make losses, but if the government participates, it is still possible that profit will be made.

As Mr Valkeniers has already pointed out, I would like to ask you to look at what happened to those profits in a few years, that they did not disappear in someone’s pockets or in management companies, but that they were invested in projects that brought employment and thus income again.

I remain of the opinion that if any profit is generated, that should go back to those who have invested in it. You did not motivate that either.

Mr. Minister, I am pleased that you have further investigated how it was right. Initially I had understood that it was 300,000 euros in the operating costs. A number of studies will be carried out specifically from the organ. With that argument and the numbers you have, I am therefore prepared to withdraw my first amendment. We will evaluate the cost movement in the future and look at how we can properly align that with the actual costs.

I had promised to do this and I appreciate the fact that we can conduct the dialogue correctly.