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10 MARCH 2009. - Act Amending the Act of 12 April 1965 on the carriage of gaseous and other products by pipelines

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanctioned the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. Article 15/5quinquies of the Act of 12 April 1965 on the carriage of gaseous and other products by pipeline, inserted by the law of 1^er June 2005, is replaced by the following:
"Art. 15/5quinquies. § 1^er. Without prejudice to the application of section 15/19, the provisions of this chapter and the royal decree of June 8, 2007 relating to the methodology to determine the total income including the fair margin, the general rate structure, the basic principles of tariffs, the procedures, the publication of tariffs, the annual reports, the accounting, the control of costs, the income deviations of managers and the objective formula of indexation referred to in the law
1° the rates are applicable for the durations fixed contractually between the transport network manager and the users of that network;
2° in order to guarantee the stability of futures prices, the regular period referred to in Article 15/5bis, § 2, may exceed four years;
3° the equitable margin for transit is determined in accordance with Articles 4 to 8 of the aforementioned Royal Decree of 8 June 2007, on the understanding that:
(a) the initial value of the controlled transit asset as at 31 December 2007 is approved by the Commission on the proposal of the manager, taking into account all transport facilities located in Belgium and used for transit;
(b) the product of the beta coefficient and the risk premium, as a component of the R rate of return referred to in section 6 of the above-mentioned Royal Decree, is set at 7%;
In cases referred to in paragraph 1^er, 2°, the King may, by order deliberately in Council of Ministers, extend the regular period on the basis of an important revision of the investment plan of the network manager. The duration of this period and its possible revision are proposed by the natural gas transport network manager, and subject to approval by the Commission before the beginning of each regular period.
The transit rates determined by the Commission in accordance with the above principles and following the procedure set out in sections 16 to 19 of the above-mentioned Royal Decree of 8 June 2007, constitute the cost-based tariffs.
§ 2. The natural gas transport network manager gives access to existing transport facilities for transit based on the rates determined in accordance with § 1^er and in accordance with the procedure provided for in Articles 16 to 19 of the aforementioned Royal Decree of 8 June 2007.
The natural gas transport network manager gives access, for transit, to the facilities to be carried out, either on the basis of tariffs determined in accordance with § 1^er and in accordance with the procedure provided for in sections 16 to 19 of the above-mentioned Royal Decree of 8 June 2007, on the basis of tariffs set by means of transparent and non-discriminatory market-based modalities, such as market consultations, provided that these market-based modalities, including revenues and associated rates, have been previously approved by the Commission.
If the application of market terms give higher rates than those determined in accordance with § 1^er and in accordance with the procedure provided for in Articles 16 to 19 of the aforementioned Royal Decree of 8 June 2007, these first tariffs are applied and are published by the manager in accordance with Article 20, § 3, of the aforementioned Royal Decree of 8 June 2007. Otherwise, or in the case where no contracting modality has been implemented, the rates determined in accordance with § 1^er and in accordance with the procedure provided for in Articles 16 to 19 of the aforementioned Royal Decree of 8 June 2007 are applicable.
The positive difference between the revenues resulting from the closing of the market call on the one hand and the approved costs including the fair margin, resulting from the rates determined in accordance with § 1^er and in accordance with the procedure provided for in articles 16 to 19 of the above-mentioned Royal Decree of 8 June 2007 on the other hand, after approval of the Commission, is allocated by royal decree deliberated in Council of Ministers:
(a) at rates for the use of the transport network;
(b) a reserve for the financing of the facilities to be carried out within a period approved by the Commission on the proposal of the manager; otherwise, this amount is allocated to the rates for the use of the transport network.
The balance is assigned at the discretion of the shareholders of the manager.
The rates for use of the transport network take into account the estimated allocation of this positive deviation. The difference between the positive budgeted deviation and the realized deviation is corrected thereafter.
§ 3. If the contractual period exceeds the duration of the regular period, section 15/5nonies, paragraph 2, shall remain applicable.
§ 4. The transit rates, be it the rates determined in accordance with § 1^er and in accordance with the procedure provided for in Articles 16 to 19 of the aforementioned Royal Decree of 8 June 2007, or, whether it is the tariffs resulting from the application of Article 15/5bis, § 3, or the application of terms and conditions that are marketed, are aggregated for the entire territory and take into account the distance travelled. »
Art. 3. Article 15/19 of the same law, inserted by the law of 1^er June 2005, is supplemented by a paragraph that reads as follows:
"Paragraph 1^er is interpreted in that it applies to contracts relating to the transit of natural gas entered into before 1^er July 2004 between:
1° on the one hand, the anonymous company Fluxys, the anonymous company Distrigaz or a subsidiary of one of these companies, which was specialized in the marketing of transit capacities and the execution of the related transport services, and
2° on the other hand, charterers with the quality of an entity responsible for a large network of high-pressure natural gas, or entity responsible for imports and exports of natural gas within the meaning of section 3 (1) of Council Directive 91/296/EEC of 31 May 1991 on the transit of natural gas on large networks. »
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 10 March 2009.
ALBERT
By the King:
Minister of Climate and Energy,
P. MAGNETTE
Seal of the state seal:
Minister of Justice
S. DE CLERCK