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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14 DECEMBER 2015. - An Act to amend articles 419, (i), (iii), 420 and 432, § 3, of the Programme Law of 27 December 2004



EXPOSES OF MOTIFS
Ladies and gentlemen,
A reduced excise rate is introduced for the natural gas used by companies with a "energiebeleidsovereenkomst" issued by the Flemish Region, a "union agreement" issued by the Walloon Region or a similar agreement issued by the Brussels Capital Region.
This reduced rate is introduced following the end of December 31, 2014 of the reduced rates applied to companies holding a licence or environmental agreement as part of the provisions of Article 17 of Council Directive 2003/96/EC of 27 October 2003 restructured the community framework for the 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 set out in Council Directive 2003/96/EC of 27 October 2003 restructured 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 Commission Regulation (EU) No. 651/2014 of 17 June 2014 declaring certain categories of State aid compatible with the domestic market pursuant to Articles 107 and 108 of the Treaty; In this case, Article 44 states that aid schemes in the form of a reduction of environmental taxes that meet the conditions set out in Council Directive 2003/96/EC of 27 October 2003 restructing the community framework for the taxation of energy products and electricity are compatible with the domestic market within the meaning of Article 107, paragraph 3 of the Treaty.
In its opinion No. 57.948/1 of 19 August 2015, the Council of State notes that it is not excluded that the regulations provided do not meet the requirements set out in Article 107, 1er paragraph, of the Treaty on the Functioning of the European Union, that the support measures that distort or threaten to distort competition in favour of certain companies are incompatible with the domestic market, provided that such assistance adversely affects the commercial traffic between the Member States.
The Council of State recommends that, if there is a will for a final response regarding the compatibility of these measures of support with European law, in particular in the light of the uncertainty as to its application by the bilingual region of Brussels-Capital, the planned regulation be notified to the European Commission.
With respect to this recommendation, it was derogated from the advice of the State Council. It will therefore not be notified to the European Commission, for the following reason: with Decision N201/04 - Belgium - Application of the possibilities of excise exemption or - reduction of Article 17 of Council Directive 2003/96/EC, the tax decrease and - exemption have, in 2005, been considered compatible with the domestic market by the European Commission.
The notified support measure was only applied for firms with a permit in Flanders and Wallonia. Regulations have not been developed for the bilingual region of Brussels-Capital.
Since the European Commission, in 2005, considered that the announced support measure was consistent with the domestic market, it may be assumed that the new regulations, which offer a more limited benefit to companies with a permit compared to the regulations that ended December 31, 2014 and which, in addition, provides the possibility for the Brussels-Capital Region to make use of this regulation, is also compatible with the domestic market.
The other remarks of the State Council were taken into account.
That is, ladies and gentlemen, the content of the bill that the government has the honour to submit to your deliberations.
Minister of Finance,
Johan VAN OVERTVELDT

ETAT COUNCIL
Legislation section
Notice 57.948/1/V of 19 August 2015 on a draft law amending sections 419, i), iii) and 420 of the programme law of 27 December 2004'
On 22 July 2015, the Conseil d'Etat, section de législation, was invited by the Minister of Finance to provide a notice, within thirty days, extended in full right until 7 September 2015 (**), on a preliminary draft law amending articles 419, i), iii) and 420 of the programme law of 27 December 2004.
The draft was reviewed by the first room of the vacations on 11 August 2015. The room was composed of Marnix VAN DAMME, room president, Jeroen VAN NIEUWENHOVE and Bert THYS, state advisers, Michel TISON, assessor, and Greet VERBERCKMOES, clerk.
The report was presented by Tim CORTHAUT, auditor.
The concordance between the French version and the Dutch version of the notice was verified under the control of Koen MUYLLE, State Advisor.
The following notice was given on August 19, 2015.
1. Pursuant to Article 84, § 3, paragraph 1er, laws on the Council of State, coordinated on 12 January 1973, the section of legislation focused on the competence of the author of the act, the legal basis(1) and the completion of the required formalities.
PROJECT ADVANT
2. The purpose of the project is to provide a reduced rate, applicable to the energy contribution, for the natural gas used as fuel in the context of a professional consumption, for the benefit of companies holding an "energiebeleidsovereenkomst" issued by the Flemish Region or a "union agreement" issued by the Walloon Region or the Brussels Capital Region.
This reduced rate of 0.54 euro per MWh (higher calorific capacity) is set out in article 419, i), iii), of the programme law of 27 December 2004 (article 2 of the draft). The King is empowered to determine the "how to apply" for the reduced rate (article 3 of the draft - article 420, § 7, in draft). A provision on compulsory registration for persons engaged in 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, 6, draft).
TRAINING
3.1. The authors of the project consider that the draft regime meets the conditions set out in Article 44 of Regulation (EU) No 651/2014 of the Commission of 17 June 2014 `declaring certain categories of aids compatible with the domestic market pursuant to Articles 107 and 108 of the Treaty' (hereinafter: General Regulation of Exemption by Category), the regime being thus exempted from the obligation of notification to the European Commission, as set out in Article 108 of the Treaty In this regard, the pre-regulatory impact analysis form (AIR) sets out the following:
"The reduced rate is set at 0.54 euro per MWh; This amount corresponds to the European minimum of taxation set out in Council Directive 2003/96/EC of 27 October 2003 restructured 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 Commission Regulation (EU) No. 651/2014 of 17 June 2014 declaring certain categories of State aid compatible with the domestic market pursuant to Articles 107 and 108 of the Treaty; In this case, Article 44 states that aid schemes in the form of reductions of environmental taxes that meet the conditions set out in Council Directive 2003/96/EC of 27 October 2003 restructing the community framework for the taxation of energy products and electricity are compatible with the domestic market within the meaning of Article 107, paragraph 3 of the Treaty".
To the extent that the conditions of Council Directive 2003/96/EC of 27 October 2003 " restructuring the community framework for the taxation of energy products and electricity " , particularly with regard to the minimum taxation levels for energy products, as well as the conditions of Chapter Ier Regulation (EU) No. 651/2014 is effectively completed, the draft regime shall not be notified to the European Commission.
3.2. However, the project regime must meet the requirements of section 107, paragraph 1erthe TFEU and the interpretation given in the jurisprudence of the Court of Justice. In this regard, it is not ruled out that, after all, certain companies or productions are favoured, especially when the aid regime cannot apply to companies established in the bilingual region of Brussels Capital if the Brussels Capital Region should not create a regulatory framework for agreements that can be concluded with the companies concerned.
While the federal regime currently in the project is completely "open" for such a future regulatory framework (see comments 4.1 and 4.2 in this regard), this regime must be combined with the relevant regulations of the regions so that a clear understanding of the compatibility of the aid measures referred to in Article 107, paragraph 1, of the TFEU can be made. If it was to be proved that companies established in the bilingual region of Brussels-Capital could not benefit from these aid measures because of the absence of a regulatory framework in the Brussels Capital Region, the compatibility of the regime with the aforementioned provision of the treaty could be problematic.(2) The State Council must therefore make a reservation in this regard.
3.3. If the project's authors wish to be determined on the compatibility of these aid measures with EU law, particularly in the light of the uncertainty regarding the application of the project regime in the bilingual region of Brussels Capital, they can always notify the European Commisison.
3.4. In addition, it will be necessary to ensure compliance with the publication and control obligations set out in Articles 9 to 12 of Regulation (EU) No. 651/2014.
3.5. Finally, the obligation of notification under Article 25, paragraph 1erand, where applicable, the obligation set out in Article 28, paragraph 4, of Directive 2003/96/EC shall be respected.
CONSIDERATION OF TEXT
Articles 2 and 3
4.1. With respect to the "energiebeleidsovereenkomsten" required for the companies established in Flemish Region, the delegate stated that this is a measure " voor de verankering van en voor blijvende energie-efficiëntie in de Vlaamse energie-inprieve industry (niet VER-bedrtievenijven >VER- De 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".
With respect to the "branch agreements" required for companies established in the Walloon Region, he said: "Board agreements are environmental conventions within the meaning of the environmental code (in particular, articles D82 to D92, part 6, of Book 1er the environmental code)".
In the Brussels Capital Region, there would not yet be a regime relating to agreements with companies, which can give rise to the applicability of the project regime with respect to the reduced rate. In this regard, the delegate stated: "Het invoeren van dergelijke regelingen behoort tot de bevoegdheden van de Gewesten. Het Vlaams Gewest heeft dergelijke regeling ingevoerd aan de hand van de `energiebeleidsovereenkomsten' en het Waals Gewest aan de hand van de ` accords de branch'. Het al dan niet invoeren van dergelijke regeling door het Brussels Hoofdstedelijk Gewest is geen federale bevoegdheid.
Het [ontwerp] voorziet [in] de mogelijkheid dat - Indian het Brussels Hoofdstedelijk Gewest een dergelijke regeling invoert - ook de bedrijven gevestigd in het Brussels Hoofdstedelijk Gewest van eenzelfde verlaagd tarief kunnen genieten.
4.2. While the provisions in the project indicate a "branch agreement" issued by (...) the Region [of] Brussels Capital", the possible establishment of an agreement by the Brussels Capital Region that is comparable to what already exists in the other two regions, is not anticipated with sufficient legal security. Thus, it cannot be assumed that this agreement will be called a branch agreement, regardless of the fact that there will also be a Dutch name.
For this reason, and in particular in view of observation 3.2, it is advisable to replace in the provisions in draft the words "or the Region [of] Brussels Capital" with the words "or a similar agreement issued by the Region of Brussels Capital".
4.3. The project provisions consider that it is sufficient for the agreement concerned to be "issued" by the competent region. On the question of what would happen if the agreement is not signed by the company or is not respected by it, the delegate replied the following: "Indian of overeenkomst niet ondertekend werd door het bedrijf wordt deze ook niet aanzien als zijnde `afgeleverd' door het betrokken Gewest. Bij de niet-naleving van deze regelingen worden de bepalingen van de betrokken Gewesten gevolgd. Indian zij overgaan tot intrekking van de regeling, zal het verlaagde tarief inzake accijnzen ook niet meer van toepassing zijn".
It is therefore best to provide that the agreement concerned must not only have been issued by the competent region, but must also be applied in accordance with the regulations of the competent region.
Article 4
5. On the question of whether the notion of "any person engaged in economic activity" in article 432, § 3, sixth dash, in project refers to the term "professional consumption" in article 419, i), iii), first asterisk, in project, which is specified in article 420, § 5, the delegate replied as follows: "From term `economische activiteit' stemt inderdaadza
In the interests of legal security, it is therefore recommended to use the term "professional consumption" in Article 432, § 3, 6, in draft.
The clerk,
Greet VERBERCKMOES
The president,
Marnix VAN DAMME
____
Notes
(**) This period results from Article 84, § 1erParagraph 1er, 2°, in fine, of the laws on the Council of State, coordinated on 12 January 1973, which specifies that this period is extended in full right of fifteen days when it takes place from 15 July to 31 July or when it expires between 15 July and 15 August.
(1) With regard to a preliminary bill, "legal basis" means compliance with higher standards.
(2) CJUE, 6 September 2006, C-88/03, Portugal v. Commission. The fact that the Court of Justice can take into account, in its appreciation, the particular situation of regions benefiting from constitutional autonomy (see K. LENAERTS and N. CAMBIEN, "Regions and the European Courts: Giving Shape to the Regional Dimension of Member States", European Law Review 2010, 609-635) does not mean that one can simply ignore the above-mentioned selectivity of the measure of assistance.

14 DECEMBER 2015. - An Act to amend articles 419, (i), (iii), 420 and 432, § 3, of the Programme Law of 27 December 2004
PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
Article 1er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. Section 419, (i), (iii), of the Program Law of 27 December 2004, last amended by the Program Law of 19 December 2014, is replaced by the following:
"iii) used as fuel:
*Professional consumption:
- companies with a "energiebeleidsovereenkomst" issued by and applied in accordance with the regulations of the Flemish Region, a "union agreement" issued by and applied in accordance with the regulations of the Walloon Region or a similar agreement issued by and applied in accordance with the regulations of the Brussels-Capital Region:
excise: 0 euro per MWh (higher calorific capacity);
special excise: 0 euro per MWh (higher calorific capacity);
Energy contribution: 0.54 euro per MWh (higher heat capacity);
- other companies:
excise: 0 euro per MWh (higher calorific capacity);
special excise: 0 euro per MWh (higher calorific capacity);
Energy contribution: 0.9916 euro per MWh (higher heat capacity);
* non-professional consumption:
excise: 0 euro per MWh (higher calorific capacity);
special excise: 0 euro per MWh (higher calorific capacity);
Energy contribution: 0.9916 euro per MWh (upper calorific capacity);"
Art. 3. In section 420 of the same program law, a paragraph 7 is inserted, as follows:
“§ 7. The King shall determine the terms and conditions of application for the rate referred to in Article 419, (i), (iii), for enterprises with an "energiebeleidsovereenkomst" issued by and applied in accordance with the regulations of the Flemish Region, a "union agreement" issued by and applied in accordance with the regulations of the Walloon Region or a similar agreement issued by and applied in accordance with the regulations of the Brussels-Capital Region. »
Art. 4. Article 432, § 3, 6e derives from the same program law, last amended by the Act of 21 December 2013 on various tax and financial provisions (1), is replaced as follows:
"- any legal person wishing to benefit, for his or her professional consumption, from a waiver or reduced excise rate. "
Art. 5. This Act comes into force on 1er January 2016.
Given in Brussels on 14 December 2015.
PHILIPPE
By the King:
Minister of Finance,
J. VAN OVERTVELDT