8 DECEMBER 2006. - An Act to establish a sampling to combat the non-use of an electricity production site by a producer (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. § 1^er For the purposes of this Act:
1° electricity production site: the cadastral plot or all cadastral plots on which a power generation facility with a production capacity of at least 400 MW for a gas power plant or a production capacity of at least 250 MW for a coal facility or a production facility that operates from renewable energy sources or a cogeneration capacity of at least 250 MW
2° Electricity production site not used: any electricity production site for which an electricity production permit was or was issued, on which there was or was a connection to the transport network, by which for twenty-four uninterrupted months before 1^er November 2005, no electricity generation was produced and injected into the transportation system;
3° Electricity production site under use: any electricity production site for which a power generation permit has been issued and on which an additional electricity production facility with a production capacity of at least 400 MW for a gas power plant or a production capacity of at least 250 MW for a coal facility or a production facility that is operated with renewable energy or at least 250 MW co-generation
4° Receiving debt: any producer, whether or not in the form of an associated company, a related corporation or a subsidiary, excluding a self-producer, a transportation network manager and a distribution network manager, who was in the 1st^er November 2005 a real right on an unused or under-used electricity production site and any third party, as referred to in Article 10, § 1^erafter 1^er November 2005 a real right on an unused or under-used electricity production site. If real law is indivisional to several producers, indivision is considered to be the debtor of the collection. Indivision members are jointly and severally required to pay the sample;
5° third: any natural or legal person that is not an associated corporation, a related corporation or a subsidiary of the debtor of the collection;
6° acceptable market conditions: market conditions that apply to real property comparable to the unused or under-used electricity production site that are in the same or other industrial areas;
7° civil servant: the official of the Federal Public Service Economics, SMEs, Average Classes and Energy, appointed by the Minister for the purposes of this Act;
8° Energy Branch: General Directorate of Energy of the Federal Public Service Economy, P.M.E., Average Classes and Energy;
9°: Minister: Minister who has the Energy in his duties.
§ 2 The definitions referred to in article 2, 1°, 2°, 6°, 7°, 10°, 11°, 19°, 20° and 20°bis of the law of 29 April 1999 concerning the organization of the electricity market are applicable to this law.
CHAPTER II. - Plate and annual sampling amount
Art. 3. An annual sampling is charged to an unused or under-used electricity production site. This sampling is based on the potential production capacity of the unused or under-used electricity production site. Potential production capacity is the capacity of the facility that could be erected on the surface of an unused or under-used site to the extent that it is at least 400 MW for a gas power plant or a production capacity of at least 250 MW for a coal facility or a production facility that operates from renewable or cogeneration sources.
The total debit cannot exceed 3 per cent of the share of the turnover on the electricity production that the debtor of the debit has made in the Belgian electricity market during the last closed fiscal year.
The amount of the sample is denominated in euros by potential production capacity expressed in MW, i.e. 11,000 euro/MW.
CHAPTER III. - Determination of an unused and under-used electricity production site
Art. 4. § 1^er No later than fifteen calendar days after the coming into force of this Act, any debtor of the debit shall forward a declaration for each non-used or under-used electricity production site, on which it exercises a real right, by a registered letter to the post with acknowledgement of receipt to the Directorate General of Energy.
This declaration shall at least contain the following data:
1° cadastral data and the area of the unused or underused electricity production site;
2° the potential production capacity on the unused or under-used electricity production site, accompanied by evidence of the figure shown;
3° the presence on or near the site of production of electricity not used or under use of the transport network, gas pipelines, inland waterways, roads and railways;
4° the date on which electricity was last produced from the unused electricity production site and injected into the transport network
5° the current use of and/or actual rights granted on the unused or underused electricity production site;
6° the venal value of the electricity production site not used or under used by m² in accordance with acceptable market conditions;
7° the reason for exemption or suspension pursuant to Articles 8 and 10.
An integral part of the declaration is annexed:
1° the cadastral matrix and cadastral plans of the unused or underused electricity production site;
2° a copy of the last authorization granted for the production of electricity on the unused or underused electricity production site;
3° a summary description of the potential production capacity, namely the technology to be used to meet this production capacity;
4° a summary description of the situation of the unused or underused electricity production site at the time of reporting;
5° proof of any exemption or suspension, as provided for in Articles 10 and 12;
6° the report of expertise relating to the venal value of the unused or underused electricity production site.
§ 2. Without prejudice to § 1^er, any debtor of the debit transmits each calendar year, no later than 1^er July for the first time on 1^er July 2007, a new statement for each unused or underutilized electricity production site, on which it still exercises a real right, by registered mail with acknowledgement of receipt to the Directorate General Energy.
Art. 5. § 1^er Within fifteen days of the date of receipt of the statement referred to in section 4, the employee shall:
1° the number of m² electricity production site not used or under use;
2° the potential production capacity;
3° the amount of the sampling in accordance with Article 3, paragraph 3.
The staff member also decides on the exemption or suspension requested and sets the suspension period.
The staff member shall determine in a decision the results referred to in the preceding paragraphs.
§ 2 The decision shall be served within three working days by registered letter to the position with acknowledgement of receipt to the debtor of the withdrawal, with reference to the remedies.
Art. 6. The grievor may:
1° access to buildings, workshops and their outbuildings during opening or working hours, if necessary for the exercise of his mission;
2° make all useful findings, produce documents, documents, books and objects necessary for the exercise of its skills and have a right of consultation in this framework;
3° ask the appropriate federal Public Service Finance department to verify whether the value reported by m² the non-used or under-used electricity production site conforms to the actual value per m².
When searches in the buildings are necessary, they can only be carried out between five and twenty and one hours and by at least two officials jointly, who can only access the buildings with the permission previously issued by the investigating judge of the place of the search.
Art. 7. § 1^er Under penalty of nullity, the debtor of the debit may, within thirty days of receipt of the decision, file an administrative appeal against the decision with the Director General of the Directorate General Energy, by registered mail with acknowledgement of receipt. In penalty of nullity, he attached to this letter a copy of the statement and the decision and indicated whether he wished to be heard.
The debtor of the debit may challenge the decision, both on the facts and on the merits, with all the evidence of the common law, with the exception of the oath.
§ 2 The Director General of the Directorate General Energy shall decide within thirty calendar days after receipt of the administrative appeal on appeal. If no decision is made within that time limit, the appeal is deemed to be accepted.
§ 3 Within three working days after the expiry of the period provided for in § 2, the decision of the Director General of the Directorate General Energy shall be notified by registered letter to the post with acknowledgement of receipt to the debtor of the debit, with reference to the continuation of the procedure.
CHAPTER IV. - Expenses, reimbursement and suspension
Art. 8. The collection debtor is exempted from the debit if the debit of the debit has given a certain real right at a non-used electricity production site or on a electricity production site under use to a third party, with the obligation for the latter to construct an electrical power plant with a production capacity of at least 400 MW for a gas generating station or at least 250 MW for a coal plant The agreement must have a certain date by the expiry of the filing period referred to in section 4.
Art. 9. By registered mail with acknowledgement of receipt the debtor of the debit may require, up to twelve months after the date of shipment of its declaration in accordance with section 4 to the employee, the refund of the debit paid, if it provides proof, that it has given to a third party at certain time a real right on a site of production of electricity under use, with the obligation of the central energy
The grievor makes a decision on the claim for reimbursement in accordance with section 5. The reimbursement is up to 90% of the amount paid. Within 30 days of receipt of the decision, the debtor of the debit may file an administrative appeal against the decision with the Director General of the Directorate General of Energy. The Director General shall treat the appeal in accordance with Article 7, §§ 2 and 3.
Art. 10. § 1^er A third party who acquires a real right in accordance with Articles 8 and 9 becomes a debtor of collection. However, he or she shall be granted a suspension of the debit, if he or she makes a declaration within thirty calendar days, from the certain date of obtaining the real law, in accordance with section 4.
§ 2 Within thirty calendar days after receipt of the registered mail referred to in § 1^er, the grievor makes a decision on the application for suspension of the sampling in accordance with section 5. The suspension referred to in § 1^er is two years from the date of shipment of the decision.
§ 3 The period of suspension may be extended by four years if the third party provides, before the expiry of the period of suspension referred to in § 2, to the grievor the evidence, by registered mail with receipt, that he has obtained an individual permit for the construction of a new electricity production facility in accordance with Article 4 of the Act of 29 April 1999 on the organization of the electricity market and that he has commenced construction work. The period of four years may be extended to a maximum of one year if it is proven, before the expiration of the four years and at the express request of the third party, that the work is at this important point that the provisional reception cannot take place within four years.
The grievor makes a decision on the request for an extension of the suspension periods referred to in the first paragraph in accordance with section 5. Within 30 days of receipt of the decision, the debtor of the debit may file an administrative appeal against the decision with the Director General of the Directorate General of Energy. The Director General shall treat the appeal in accordance with Article 7, §§ 2 and 3.
CHAPTER V. - Perception and recovery
Art. 11. Within three working days the decision with the amount to be paid is sent to the Federal Public Service Finance.
Art. 12. Within five business days, after receipt of the decision referred to in Article 11 the Receiver of the Domains sends a notice of payment to the debtor of the debit.
The notice of payment refers to the collection plate, the amount to be paid, the method of calculation, the payment deadline and the formalities to be followed.
Art. 13. The amount of the debit must be paid by the debtor of the debit no later than the last day of the month following that of the shipment of the notice of payment.
If the payment is not made within the period referred to in the first paragraph, an interest equal to the rate of legal interest shall be due in full right for the duration of the delay and the amounts due shall be recovered by constraint, in accordance with the provisions of Article 94 of the coordinated laws of 17 July 1991 on State accounting.
Art. 14. The enforcement of the constraint can only be interrupted by bringing a legal action brought before the court of first instance.
CHAPTER VI. - Monitoring, Criminal and Final Provisions
Art. 15. The grievor is subject to professional secrecy. Confidentiality is guaranteed for individual data obtained under this Act. Any use of data collected for purposes other than those set out in this Act is prohibited.
Any offence under the first paragraph is punishable under section 458 of the Criminal Code. The provisions of Book I^er the Criminal Code, including Chapter VII and Article 85, shall apply.
Art. 16. A prison sentence of one month to one year and/or a fine of not less than 26 euros shall be imposed on persons who prevent the audits and investigations of public servants carried out under this Act, refuse to provide information that they are required to communicate under this Act or knowingly provide incorrect and incomplete information.
§ 2. The provisions of Book I^er the Criminal Code, including Chapter VII and Article 85, shall apply to offences referred to in the premioer paragraph. Corporations are civilly liable for fines to which their directors, managers or agents are sentenced for committing such offences.
Art. 17. The official may compel the debtor of the debit or the third party to respect articles 4 and 10, § 1^erwithin the time period determined by the grievor. If the person remains in default on the expiry of this period, the employee may, after hearing or duly summoned the person, make an administrative fine. The fine is 1 percent of the share of the turnover on electricity production that the debtor of the collection has made in the Belgian electricity market during the last fenced exercise. The fine is collected by the Federal Public Service Finance for the benefit of the tariffs set out in section 12 of the Act of 29 April 1999 on the organization of the electricity market.
Art. 18. This Act comes into force on the day of its publication in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 8 December 2006.
ALBERT
By the King:
Deputy Prime Minister and Minister of Justice,
Ms. L. ONKELINX
Deputy Prime Minister and Minister of Finance,
D. REYNDERS
Minister of Energy,
Mr. VERWILGHEN
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
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Notes
(1) 2006-2007 session
Documents of the House of Representatives:
Parliamentary documents. Bill. - No. 51-2711/001. Report No. 51-2711/003. - Opinion of the State Council N^bones 40.146/3 and 41.114 /1/V. Amendments No. 51-2711/002. - Text adopted by the Commission, No. 51-2711/004. - Text adopted in plenary and transmitted to the Senate No. 51-2711/005. - Related documents: Bill No. 51-2712/001.
Full report: 23 November 2006, No. 244.
Senate
Parliamentary documents. - Project referred to by the Senate, No. 3-1944/1. Amendments No. 3-1944/2. - Report made on behalf of commission No. 3-1944/3 - Text corrected by commission No. 3-19944/4.
Annales du Sénat : 29 novembre 2006.