An Act To Amend Sections 419, I), Iii), 420-432, § 3 Of The Programme Act Of 27 December 2004

Original Language Title: Loi modifiant les articles 419, i), iii), 420 et 432, § 3, de la loi-programme du 27 décembre 2004

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Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2015003412&caller=list&article_lang=F&row_id=100&numero=167&pub_date=2015-12-23&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2015-12-23 Numac: 2015003412 SERVICE PUBLIC FÉDÉRAL FINANCES 14 December 2015. (- An act to amend sections 419, i), iii), 420-432, § 3, of the programme law of 27 December 2004 explanatory ladies, gentlemen, a reduced rate of excise duty is established for natural gas used by incumbent of a "energiebeleidsovereenkomst" issued by the Flemish, a "domestic agreement" issued by the Walloon or similar agreement issued by the Brussels-Capital Region.
This reduced rate is established following the end to December 31, 2014, of the reduced rates applied to licensed companies or environmental agreement under the provisions of article 17 of Directive 2003/96 / EC of the Council of 27 October 2003 restructuring the framework for taxation of energy products and electricity.
The reduced rate is set at 0.54 euro per MWh; This amount corresponds to the European minimum of taxation provided for in Directive 2003/96/EC of the Council of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity.
The application of this amount is authorized by the provisions of article 44 of Regulation (EU) No. 651/2014 of the Commission of 17 June 2014 declaring certain categories of State aid compatible with the internal market in application of articles 107 and 108 of the Treaty; in this case, article 44 stipulates that aid in the form of reduction of environmental taxation schemes which fulfil the conditions laid down in Directive 2003/96/EC of the Council of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity are compatible with the internal market within the meaning of article 107, paragraph 3 of the Treaty.
In its opinion No. 57.948/1 August 19, 2015, the State Council Note that it is not excluded that anticipated regulatory fulfils the conditions laid down in article 107, paragraph 1, of the Treaty on the functioning of the Union European, that support measures that distort or threaten to distort competition in favour of certain undertakings is incompatible with the internal market insofar as this aid adversely influence the commercial traffic between Member States.
The State Council recommends that, if there is a desire for definitive answer regarding the compatibility of these measures of support with European law, notably in the light of the uncertainty as to its application in the bilingual region of Brussels-capital, the planned regulation is notified to the Commission European.
With regard to this recommendation, there have been derogated from the opinion of the Council of State. It will therefore not be notified to the European Commission, and for the following reason: with decision No. 201/04 - Belgium - Application of the possibilities of exemption of excise duty or - reduction of article 17 of Directive 2003/96/EC of the Council, declining tax-exemption were, in 2005, considered as compatible with the internal market by the European Commission.
The notified measure then only applied to firms that have licensed in Flanders and Wallonia. Legislation has not been developed for the bilingual region of Brussels-capital.
Given that the European Commission has, in 2005, estimated that the support measure announced was compatible with the internal market, it can be assumed that the new regulations, which provides a benefit smaller businesses holding a permit in relation to the regulation which ended on December 31, 2014 and which, moreover, provides for the possibility for the Brussels-Capital Region to make use of this regulatory is also compatible with the internal market.
The other comments of the Council of State have been taken into account.
This is, ladies and gentlemen, the content of the Bill that the Government has the honour to submit to your deliberations.
The Minister of finance, Johan VAN OVERTVELDT Council of State legislation section opinion 57.948/1/V of 19 August 2015 on a draft Bill ' amending articles 419, i), iii) and 420 of the programme act of 27 December 2004' July 22, 2015, the State Council, legislation section, has been invited by the Minister of finance to communicate a notice ((, within thirty days, extended of right until September 7, 2015 (*), on a draft Bill ' amending articles 419, i), iii) and 420 of the programme act of 27 December 2004'.
The preliminary draft was considered by the first Chamber of the vacations August 11, 2015. The Chamber was composed of Marnix VAN DAMME, president of Chamber, Jeroen VAN NIEUWENHOVE and Bert THYS, State Councillors, Michel TISON, assessor, and Greet VERBERCKMOES, clerk.
The report was presented by Tim CORTHAUT, listener.
The concordance between the French and the Dutch version of the notice has been verified under the control of Koen MUYLLE, Councillor of State.
The notice, which reads as follows, has been given on August 19, 2015.
1. in application of article 84, § 3, paragraph 1, the laws on the Council of State, coordinated on 12 January 1973, the legislation section has focused its review primarily on the competence of the author of the Act, the legal basis (1) and the completion of required formalities.
SCOPE OF THE PRELIMINARY DRAFT 2. The draft is designed to grant a reduced rate applicable to the energy levy, for natural gas used as fuel in a professional consumption in favour of incumbent of a «energiebeleidsovereenkomst» issued by the Flemish Region or a "domestic agreement" issued by the Walloon Region or the Brussels-Capital Region.
This reduced rate of 0.54 euro per MWh (calorific) contained in article 419, i), iii), Act, 27 December 2004 (article 2 of the draft) programme. The King is empowered to determine the "implementing" concerning the reduced rate (article 3 of the draft - article 420, § 7, project).
A provision for compulsory registration for persons exercising an economic activity is adapted to apply now, also to persons who wish to benefit from the reduced rate (article 4 of the draft - article 432, § 3, sixth indent, in project).
PROCEDURES 3.1.
The authors of the project consider that the project plan meets the conditions laid down in article 44 of Regulation (EU) No. 651/2014 the Commission of 17 June 2014 'declaring certain categories of aid compatible with the internal market in application of articles 107 and 108 of the Treaty' (hereinafter: general block exemption regulation), thus being exempted from the obligation of notification to the European Commission included in article 108, paragraph 3, of the Treaty on the functioning of the European Union (hereinafter: TFEU). In this regard, the form for prior (AIR) regulatory impact analysis exposes the following: "the reduced rate is fixed at 0.54 euro per MWh; This amount corresponds to the European minimum of taxation provided for in Directive 2003/96/EC of the Council of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity.
The application of this amount is authorized by the provisions of article 44 of Regulation (EU) No. 651/2014 of the Commission of 17 June 2014 declaring certain categories of State aid compatible with the internal market in application of articles 107 and 108 of the Treaty; in this case, article 44 stipulates that aid in the form of reductions in environmental taxation schemes which fulfil the conditions laid down in Directive 2003/96/EC of the Council of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity are compatible with the internal market within the meaning of article 107, paragraph 3 of the Treaty'.
Insofar as the conditions of Directive 2003/96/EC of the Council of 27 October 2003 'restructuring the Community framework for the taxation of energy products and electricity', particularly as regards the minimum levels of taxation are provided for energy products, as well as the conditions of chapter I of Regulation (EU) No. 651/2014 are fulfilled the project plan should not be notified to the European Commission.
3.2. it is no less that the project plan must satisfy the conditions laid down in article 107, paragraph 1, TFEU as well as the interpretation given in the jurisprudence of the Court of justice. In this regard, it is not excluded that after the fact, some businesses and productions are favored, especially when the aid scheme may apply to undertakings established in the bilingual Brussels capital region if the Brussels-Capital Region was not to create a regulatory framework with regard to agreements to be concluded with the companies concerned.
Even if the federal regime currently project is completely 'open' for such a framework regulatory future (see observations 4.1 and 4.2 this regime must be combined with the relevant regional legislation so we can get an accurate idea of the compatibility of the aid measures are covered with article 107, paragraph 1 TFEU. Should it be subsequently that companies established in the bilingual region of Brussels-capital may not benefit from these aid measures due to the lack of a regulatory framework in the Brussels Capital Region, the compatibility of the scheme with the abovementioned provision of the Treaty could be

issue. (2) the Council of State must therefore formulate a reservation in this regard.
3.3. If the sponsors of the project want to be fixed on the compatibility of these aid measures with the law of the Union, especially in view of the uncertainty regarding the application of the system in project in the bilingual region of Brussels capital, they can still notify it to the European Commission.
3.4. in addition, it will take place to ensure publication and control obligations laid down in articles 9 and 12 of the Regulation (EU) No. 651/2014.
3.5 Finally, the obligation to notify laid down in article 25, paragraph 1, and, where appropriate, the obligation in article 28, paragraph 4, of Directive 2003/96/EC, must be respected.
CONSIDERATION of the text of Articles 2 and 3 4.1. With regard to the 'energiebeleidsovereenkomsten' required for enterprises established in the Flemish Region, the delegate said that it is a measure "voor verankering van in voor blijvende energy-Efficiëntie in Vlaamse energy-intensieve industry (niet VER-bedrijven & worm-bedrijven), definitief milieueffectrapportage door de Vlaamse Regering op 4 april 2014.". «Of rechtsbasis voor deze energiebeleidsovereenkomsten is terug te vinden in artikel 7.7.1 van het Energiedecreet = Decreet houdende algemene bepalingen betreffende het energiebeleid van 8 mei 2009.
In regards to the 'branch agreements' required for enterprises established in the Walloon Region, the delegate stated the following: "branch agreements are environmental conventions within the meaning of the code of the environment (in particular, articles D92 D82, part 6, 1 book of the environment code).
In Brussels Capital Region, it would not exist to scheme relating to the agreements with companies, which can give rise to the applicability of the regime in project as regards the reduced rate. In this regard, the delegate stated: 'Het invoeren van dergelijke regelingen behoort tot de door Gewesten van. Het Vlaams Gewest en dergelijke regeling ingevoerd aan hand van 'energiebeleidsovereenkomsten' in het Waals Gewest aan de hand van de 'branch agreements'.
Het al dan niet invoeren van dergelijke regeling door het Brussels Hoofdstedelijk Gewest is geen Federal bevoegdheid.
"Het [ontwerp] [in] mogelijkheid dat voorziet - Indian het Brussels Hoofdstedelijk Gewest een dergelijke regeling invoert - bedrijven gevestigd ook in het Brussels Hoofdstedelijk Gewest van eenzelfde verlaagd tarief kunnen genieten.
4.2. If the draft provisions are in fact state of an '' agreement of branch' issued by (...) ". [] Brussels Capital Region', the possible establishment of an agreement by the Region of Brussels - capital, which is comparable to what already exists in the other two regions, not is so far not anticipated with sufficient legal security.
Thus, it cannot be assumed that this agreement will be called 'branch agreement', regardless that there will also be an appellation in Dutch.
For this reason, and taking into account particular observation 3.2, it is advisable to replace the provisions in draft the words "or [] Brussels Capital Region' by the words 'or a similar agreement issued by the Brussels Capital Region.
4.3. the provisions in project consider that it is sufficient that the agreement concerned be "issued" by the competent region. The question of what would happen if the agreement is not signed by the company or is not respected by the delegate replied as follows: "Indian overeenkomst niet ondertekend werd door het bedrijf wordt deze ook niet aanzien als zijnde 'afgeleverd' door het betrokken Gewest. Bij of niet-naleving van deze regelingen bepalingen betrokken Gewesten gevolgd van worden.
Indian zij overgaan tot intrekking van de regeling, zal het verlaagde tarief inzake accijnzen ook niet meer van toepassing zijn.
Better then provide that the agreement must not only have been issued by the competent region, but must also be applied according to the regulations of the competent region.
Article 4 (5). The question of if the concept of 'any person exercising an economic activity' in article 432, § 3, sixth indent, in project refers to the term 'professional use' in article 419, i), iii), first asterisk in project, which is specified in article 420, § 5, the delegate replied as follows: "term 'economische activiteit' stem™ inderdaad overeen met term 'zakelijk gebruik' zoals voorzien in artikel 420. (, § 5) van programmawet van 27 december 2004.
For the sake of legal certainty, it is therefore recommended to use the term 'professional use' in article 432, § 3, sixth indent, in project.
The clerk, Greet VERBERCKMOES president, Marnix VAN DAMME _ Notes (*) this period stems from article 84 § 1, paragraph 1, 2 °, ultimately, laws on the Council of State, coordinated on 12 January 1973, which States that this period shall be extended ipso jure of fortnight when he took courses from July 15 to July 31 or when it expires between July 15 and August 15.
(1) in the case of a draft Bill, means 'legal basis' compliance to the higher standards.
(2) ECJ, September 6, 2006, C-88/03, Portugal v. Commission. The fact that the Court of justice may take account, in its assessment, the particular situation of regions benefiting from constitutional autonomy (see K. LENAERTS and N. Caldwell, "Regions and the European Courts: Giving Shape to the Regional Dimension of Member States ', European Law Review 2010, 609-635) does mean that one can simply ignore the above possible selectivity of the measure in project , and that it is especially the actual effects of the measure that influence this assessment.

14 DECEMBER 2015. (- An act to amend sections 419, i), iii), 420-432, § 3, of the programme law of 27 December 2004 PHILIPPE, King of the Belgians, to all, present and future, hi.
The House of representatives has adopted and we sanction the following: Article 1.
This Act regulates a matter referred to in article 74 of the Constitution.
S. 2. article 419, i), iii), of the programme law of 27 December 2004, modified as last amended by the programme act of December 19, 2014, is replaced by the following: "iii) used as a fuel: * professional consumption:-companies with a"energiebeleidsovereenkomst"issued by and applied in accordance with the regulations of the Flemish Region, a"domestic agreement"issued by and applied in accordance with the regulation of the Walloon Region or a similar agreement issued by and applied in accordance with the regulations" of the Brussels-Capital Region: excise duty: 0 euro per MWh (calorific value);
special excise duty: 0 euro per MWh (calorific value);
energy levy: 0.54 euro per MWh (calorific value);
-other firms: excise duty: 0 euro per MWh (calorific value);
special excise duty: 0 euro per MWh (calorific value);
energy levy: 0,9916 euro per MWh (calorific value);
* non-professional consumer: excise duty: 0 euro per MWh (calorific value);
special excise duty: 0 euro per MWh (calorific value);
"energy levy: 0,9916 euro per MWh (calorific value);"
S. 3 article 420 of the same programme Act, a paragraph 7 is inserted, worded as follows: ' ' § § 7 7 The King determines the modalities for the application of the rate referred to in article 419, i), iii), for companies with a 'energiebeleidsovereenkomst' issued by and applied in accordance with the regulations of the Flemish Region, a "domestic agreement" issued by and applied in accordance with the regulation of the Walloon Region or a similar agreement issued by and applied in accordance with the rules of the Brussels-Capital Region. » Art.
4. article 432, § 3, 6th indent of the same programme Act, as amended by the Act of 21 December 2013 on tax and financial provisions various (1), is replaced by the following: "-any legal entities wishing to benefit, for professional use, an exemption or a reduced rate of excise duty."
S. 5 this Act comes into force on January 1, 2016.
Given in Brussels, December 14, 2015.
PHILIPPE by the King: the Minister of finance, J. VAN OVERTVELDT