1^er JUIN 2005. - Act to amend the Act of April 12, 1965 on the carriage of gaseous and other products by pipelines (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
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution and aims to transpose the Directive 2003/55/EC of the European Parliament and the Council of 26 June 2003 on common rules for the domestic market of natural gas and repealing Directive 98/30/EC.
CHAPTER II. - Amendments to the Act of 12 April 1965 on the carriage of gaseous and other products by pipelines
Art. 2. Article 1^er the Act of 12 April 1965 on the carriage of gaseous and other products by pipeline, replaced by the Act of 29 April 1999, and amended by the Acts of 16 July 2001 and 20 March 2003, are amended as follows:
1° it is inserted a point 5°bis, written as follows:
"5°bis. "Natural gas company": any legal person who performs at least one of the following functions: the production, transport, distribution, supply, purchase or storage of natural gas and who performs the commercial, technical and/or maintenance missions related to these functions, but is not a final customer; »;
2° points 7 and 12 are completed as follows:
"but not including the supply; »;
3° points 4°, 20° and 24° are repealed;
4° point 10° is replaced by the following provision:
"10° "transport network": any set of transport facilities operated by one of the managers or by the same transport company, excluding upstream facilities and direct pipelines; »;
5° it is inserted a point 10°bis, written as follows:
"10°bis "Natural gas transport network": a transport facility intended solely for the delivery of natural gas and operated by the manager responsible for the delivery of natural gas to the exclusion of upstream installations; »;
6° point 14° is replaced by the following provision:
"14° "Natural gas supply": sale, including resale, to natural gas customers, including LNG; »;
7° point 15° is replaced by the following provision:
"15° "supply company": any natural or legal person who makes the supply of natural gas; »;
8° point 17° is replaced by the following provision:
"17° "interconnected network": all transport networks connected to each other; »;
9° point 19° is replaced by the following provision:
"19° "Related company": a related or associated company within the meaning of the Corporations Code; »;
10° point 25° is replaced by the following provision:
"25° Directive 2003/55": Directive 2003/55/EC of the European Parliament and the Council of 26 June 2003 on common rules for the domestic natural gas market and repealing Directive 98/30/EC; »;
11° it is inserted a point 26°bis, written as follows:
"26°bis "Act of July 18, 1975": the Act of July 18, 1975 on the research and operation of underground storage sites; »;
12° it is inserted a point 27°bis, written as follows:
"27°bis "Energy Administration": the Directorate General of Energy of the Federal Public Service Economics, P.M.E., Average Classes and Energy; »;
13° in point 30° the words "article 15/5, § 3" are replaced by the words "article 15/5undecies";
14° point 31° is replaced by the following provision:
"31° natural gas transport network manager": the natural gas transport network manager designated in accordance with section 8 or 8/1; »;
15° the article is completed as follows:
"32° "natural gas storage facility": facilities, and/or properties operated by a natural gas storage facility manager, used for natural gas storage, including LNG facilities used specifically for natural gas storage; excluding storage facilities used for production activities, as well as storage facilities exclusively reserved for the manager of the natural gas transport network in the performance of its tasks;
33° "Natural Gas Storage Facility Manager": the legal person referred to in section II of chapter III of this Act;
34° "LNG installation": a terminal owned and/or operated by a LNG installation manager, used for liquefaction of natural gas or import, unloading and regasification of LNG, including auxiliary services and temporary storage of natural gas required for the LNG regasification process and its subsequent supply to the natural gas transport network, but not including the natural gas regasification facility
35°"LNG installation manager": the legal person referred to in section II of Chapter III of this Act;
36° " Auxiliary services": all services required for access to natural gas and/or distribution and/or LNG and/or storage systems, and their operation, including load and mixture balancing devices, but excluding facilities reserved exclusively for the manager of the natural gas transport network in the performance of its tasks;
37° "Natural gas storage in pipelines": the storage of natural gas by compression in natural gas transport and natural gas distribution networks, but excluding facilities reserved for the manager of the natural gas transport network in carrying out its tasks;
38° "Vertical Integrated Enterprise": a natural gas company or a group of companies whose reciprocal relationships are defined in Article 3, paragraph 3 of Regulation (EEC) No 4064/89 of the Council of 21 December 1989 concerning the control of the concentration operations between enterprises and which performs at least one of the following functions: natural gas transport, natural gas distribution, LNG activities or natural gas storage and at least one of the following functions:
39° "horizontal integrated enterprise": a company that provides at least one of the following functions: production, transport, distribution, supply or storage of natural gas, as well as an activity outside the natural gas sector;
40° "safety": technical security;
41° "new installation": a natural gas facility that is not completed on the effective date of Directive 2003/55/EC, 1^er July 2004;
42° "Managers": the following three operators: the natural gas transport network manager, the natural gas storage facility manager and the LNG installation manager;
43° "Combined Network Manager": Manager responsible for the management of at least two following facilities or networks:
(a) the natural gas transport network;
(b) natural gas storage facility;
(c) LNG installation;
44° "Non-Executive Administrator": any director who does not assume a management function within the managers or one of their subsidiaries;
45° "independent administrator": any non-executive administrator who:
(a) meets the requirements of Article 524, § 4, of the Code of Societies and
(b) did not exercise a paid or unpaid function or activity during the twenty-four months prior to the designation to serve one of the network owners, one of the managers, an intermediary, a supplier, a producer or a dominant shareholder;
(c) did not perform a paid or unpaid function or activity in the service of a distributor during the nine months preceding the designation;
46° "regular period": the four-year period during which the rates referred to in 15/5bis apply;
47° "equitable margin": the fair margin referred to in Article 15/5bis, § 2, b);
48° "regulated assets": the regulated assets referred to in 15/5s, 1, a);
49° "performance rate": the rate of return referred to in 15/5s, 1, c). "
Art. 3. The title of Chapter III of the Act is replaced by the following title: "Chapter III - Provisions relating to transportation authorities and managers".
Art. 4. In chapter III of the same Act, the title of a new first section, as follows, is inserted before section 3:
“Section 1^re - Natural gas transport authorities »
Art. 5. Section 4 of the Act, replaced by the Act of 29 April 1999, is supplemented by a paragraph 2, which reads as follows:
"The conditions of transportation authorizations referred to in paragraph 1^er may include a distinction between construction and operation when it comes to natural gas transport facilities. »
Art. 6. In chapter III of the Act, the title of a new section 2 and the title of a new subsection first, as follows, are inserted before section 8:
“Section 2. - Designation of managers
Sub-section 1^re. - Final regime »
Art. 7. Section 8, repealed by the Act of 29 April 1999, is reinstated in the following wording:
“Art. 8. § 1^er. The management of the natural gas transport network, natural gas storage facility and LNG installation is ensured, in accordance with this section, respectively and only by the following managers:
1° the natural gas transport network manager;
2° the natural gas storage facility manager;
3° the LNG installation manager.
§ 2. The Minister shall issue a notice to the Belgian Monitor inviting any holder of one or more authorizations for the carriage of natural gas, the storage of natural gas, including authorizations issued pursuant to the Act of 18 July 1975 and its enforcement orders, or the installation of LNG, to apply, within three months, to the Minister, to be designated, as the case may be, manager of the natural gas storage network
The holder of a natural gas transport authorization, who is a candidate for the management of the natural gas transport network, must hold a portion of the proposed network that covers at least 75% of the national territory alone or in conjunction with other natural gas transport licensees.
The Minister shall communicate the nominations to the Banking, Financial and Insurance Commission and to the Commission that issue a notice within forty days of the receipt of the application.
§ 3. The candidate must establish that he meets the requirements of sections 8/3 to 8/6 of the Act.
If the conditions referred to in sections 8/3 to 8/6 are met by the parent company, the parent company itself manager, its subsidiary itself manager, must not comply.
§ 4. After the advice of the Banking, Financial and Insurance Commission regarding the criteria referred to in § 3, after the Commission's opinion on the other criteria, and after deliberation in the Council of Ministers, the Minister shall, no later than nine months after the publication of the notice referred to in § 2, after the proposal of one or more holders of a natural gas transport authorization:
1 the manager responsible for the management of the natural gas transport network;
2 the natural gas storage facility manager and the LNG installation manager for a renewable term of twenty years.
The designation of the manager ends in case of bankruptcy or dissolution.
§ 5. If no application is made within three months of the date of publication of a notice from the Minister to the Belgian Monitor or in case of applications not in accordance with the law, the Minister shall designate the manager(s) concerned after deliberation in the Council of Ministers.
§ 6. The candidates designated in accordance with § 4 or, where applicable, in accordance with § 5, shall be named respectively:
1° natural gas transport network manager;
2° natural gas storage facility manager;
3° LNG installation manager.
§ 7. The Minister, after hearing the network manager concerned, after deliberation in the Council of Ministers, and after the Commission's opinion, may revoke any appointment of manager referred to in § 6 in the event of:
1st serious breach of the manager's obligations under this Act and its enforcement orders;
2° non-compliance with the manager's conditions of independence, as referred to in sections 8/3 to 8/6 of this Act;
3° fusion, splitting or significant change in the ownership of the latter which is likely to compromise its independence.
§ 8. Each manager referred to in § 1^er may exercise the function of a combined network manager. »
Art. 8. In chapter III of the Act, the title of a new subsection 2, as follows, is inserted after section 8:
"Subsection 2. - Non-final regime."
Art. 9. Section 8/1, as follows, is included in Chapter III of the Act:
"Art. 8/1. § 1^er. By derogation from section 8, the licensee natural gas undertaking, at 1^er July 2004, one or more authorizations for the carriage of natural gas pursuant to this Act and its enforcement orders or authorizations for the storage of natural gas, including authorizations issued pursuant to the Act of 18 July 1975 and its enforcement orders, shall be designated from the date of entry into force of this section by the effect of the law, as the case may be:
1° natural gas transport network manager;
2° natural gas storage facility manager;
3° LNG installation manager.
Each of these three designations is valid until the final designation of the manager concerned, pursuant to section 8, or until the Minister refuses to accept that designation.
§ 2. Each manager referred to in § 1^er may exercise the function of a combined network manager. »
Art. 10. It is inserted in chapter III of the Act, after section 8/1, the title of a new subsection 3, as follows:
"Subsection 3. - Conditions to be met by managers."
Art. 11. An article 8/2, as follows, is included in chapter III of the Act:
"Art. 8/2. - The following conditions apply to each of the three managers referred to in sections 8 and 8/1, whether it is a publicly traded corporation or not:
1° they shall be constituted in the form of an anonymous society, having its headquarters and its central administration in a State forming part of the European Economic Area,
2° they must meet all the conditions laid down in the Act of 2 August 2002 amending the Code of Companies and the Act of 2 March 1989 on the advertising of important participations, in publicly traded companies and regulating public tenders. »
Art. 12. An article 8/3, as follows, is included in chapter III of the Act:
"Art. 8/3. § 1^er. The Board of Directors is composed exclusively of non-executive directors, with the exception of the delegated administrator, and for at least one third of independent directors. They are selected in part for their financial management knowledge and in part for their knowledge of relevant technical matters.
The board of directors is composed of at least one third of members of the other sex.
§ 2. The Board of Directors is within it at least one audit committee, a compensation committee and a corporate governance committee. Committees are composed of at least three members.
The audit committee, the compensation committee and any other committee established on the board of directors shall be composed exclusively of non-executive directors and for at least one third of independent directors.
The Corporate Governance Committee is composed of at least two thirds of independent directors. The Chair will be provided by an independent administrator.
§ 3. The audit committee is responsible for the following tasks:
1 to review the accounts and ensure the control of the budget;
2° follow up on audit work;
3° assess the reliability of financial information;
4° organize and monitor internal control;
5° verify the effectiveness of internal risk management systems.
The audit committee has the authority to investigate in any matter that falls within its remit, in accordance with the legal restrictions regarding access to commercial data and other confidential data relating to users of the natural gas transport network, the natural gas storage facility and the LNG installation. To this end, it has the necessary resources, has access to any information, with the exception of commercial data relating to network users, and may request advice from internal and external experts of the assignments in accordance with legal restrictions.
§ 4. The Compensation Committee shall, where appropriate, make recommendations to the Board of Directors on the remuneration of the members of the steering committee and the delegated administrator, taking into account section 8/5, 4°.
§ 5. The Corporate Governance Committee is, where applicable, responsible for the following tasks:
1° render a notice to the board of directors on the independence of candidates for the independent administrator's term and on the appointment of the delegated administrator and, if applicable, on the members of the steering committee;
In the event that the Board of Directors does not follow the advice of the Corporate Governance Committee with respect to the appointment of independent directors, the Board shall, after having previously consulted the Chairman of the Banking, Financial and Insurance Commission, require the Board's opinion if the alleged lack of independence concerns natural gas producers and suppliers;
In the event that, by proposing to the general meeting of shareholders candidates for the term of independent administrator, the term of office of delegated administrator and, where appropriate, the board of directors does not follow the advice of the corporate governance committee, the board shall motivate its proposal after consulting the Chairman of the Banking, Financial and Insurance Commission;
2° to decide on cases of incompatibility in the head of management and staff;
3° to ensure the application of the provisions of this Article, to assess its effectiveness with respect to the objectives of independence and impartiality of managers as defined in the Code of Conduct and to report annually to the Commission on this subject.
§ 6. Following advice from the Corporate Governance Committee, the Board of Directors appoints a delegated director or chair of the Management Committee in accordance with section 524bis of the Corporations Code.
§ 7. Following advice from the Corporate Governance Committee, the delegated director or chair of the Executive Committee proposes to the Board the appointment of the members of the Executive Committee.
The provisions of this paragraph shall apply for the first time only to the appointments and renewals of terms of office after this section comes into force.
§ 8. The Board of Directors has the following powers:
1° it defines the general policy of society;
2° shall exercise the powers assigned to it by or under the Corporations Code or delegated to it without prejudice to the delegated or assigned authority to the delegated administrator or, where appropriate, to the steering committee;
3° it provides general supervision over the delegated administrator and steering committee in accordance with the legal restrictions regarding access to commercial data and other confidential data relating to users of the natural gas transport network, the natural gas storage facility and the LNG installation and the processing of such data;
§ 9. The delegated administrator or chair of the steering committee and its steering committee shall, inter alia, exercise the following powers:
1° Daily management of managers;
2° other powers delegated by the board of directors;
3° the powers assigned to them by statute. »
Art. 13. An article 8/4, as follows, is included in chapter III of the Act:
"Art. 8/4. - If the natural gas transport network manager is part of a vertically integrated enterprise, it must be independent, at least in terms of its legal form, organization and decision-making process, of other activities not related to the transport activity. »
Art. 14. An article 8/5, as follows, is included in chapter III of the Act:
"Art. 8/5. - In order to guarantee the independence of the manager of the natural gas transport network referred to in section 8/4, the following minimum criteria are in force:
1° Management officials may not be part of the integrated natural gas company structures that are directly or indirectly responsible for the day-to-day management of natural gas production, distribution and supply activities.
2° Appropriate measures must be taken to ensure that the professional interests of individuals, as referred to in 1 are taken into account in order to enable them to act independently.
3° The natural gas transport network manager has effective powers to make, regardless of its shareholders, decisions regarding the assets required for the operation, maintenance and development of the transportation network.
4° The manager of the natural gas transport network may not receive instructions from his parent company on day-to-day management or on individual decisions relating to the construction or modernization of natural gas transmission lines that do not exceed the limits of the annual global budget approved by the latter or any equivalent document. »
Art. 15. Section 8/6, as follows, is included in Chapter III of the Act:
"Art. 8/6. - Sections 8, 8/1, 8/2, 8/3, 8/4 and 8/5 apply to the combined network manager. "
Art. 16. The title of Chapter IV of the Act is replaced by the following title:
CHAPTER IV. - Rights and obligations of the transportation authorization holder and managers".
Art. 17. In chapter IV of the same Act, the title of a new first section, as follows, is inserted before section 9:
“Section 1^re. - Authorization to transport natural gas".
Art. 18. Section 15 of the Act, amended by the Act of 29 April 1999, is supplemented by the following paragraph:
"The holder of a transport authorization relating to other products other than natural gas must maintain and develop its transport facilities in economically acceptable conditions and in accordance with the environment. »
Art. 19. Section II is inserted between section 15 and 15/1 of the Act, as follows:
"Section II. - Manager of the natural gas transport network, natural gas storage facility manager and LNG installation manager".
Art. 20. Section 15/1 of the Act, inserted by the Act of 29 April 1999, is replaced by the following provision:
“Art. 15/1, § 1^er. The natural gas transmission network manager, the natural gas storage facility manager and the LNG installation manager are respectively required to:
1° to operate, maintain and develop, economically acceptable, safe, reliable and efficient, the facilities of which they own or on which they have a right to guarantee them the enjoyment of the infrastructures and equipment they are responsible;
2° to operate, maintain and develop, economically acceptable, safe, reliable and efficient transport facilities connected directly to the natural gas transport network, of which they are not the owner and on which they do not have the right referred to in 1 which were subject to a transport authorization after the designation of the managers, in accordance with this Act and which are not covered by 1;
3° to have an organization enabling them to reasonably carry out their respective missions;
4° to give all the attention required to respect the environment when performing their missions;
5° to refrain from any discrimination between users or categories of users of the natural gas transport network, natural gas storage facilities or LNG facilities, particularly in favour of related companies;
6° to provide to other managers of the natural gas transport network, natural gas storage facility, LNG installation and/or natural gas distribution network, sufficient information to ensure that natural gas transport, natural gas storage and LNG activities can be done in a manner compatible with the safe and effective operation of interconnected networks;
7° to provide the users of the natural gas transport network, natural gas storage facility or LNG installation with the information they need for effective access to the network and these facilities, in accordance with the code of conduct;
8° not to engage in natural gas production or sale activities or intermediation in natural gas other than sales or purchases required by their equilibrium maintenance activities as manager of the natural gas transport network, natural gas storage facility manager, LNG installation manager, in accordance with the code of good conduct.
9° to implement all reasonable means in order to compensate for a significant and accidental imbalance of the respective users of the natural gas transport network, natural gas storage facility or LNG installation.
10° to ensure that a linguistic balance is achieved and maintained during the renewal of the terms of reference of the board members and the steering committee.
The holders of a transport authorization that do not return to the fields of application of points 1° and 2°, operate their pipelines themselves without the intervention of the managers.
§ 2. The manager of the natural gas transport network, natural gas storage facility and LNG installation system may not hold, either directly or indirectly, any rights associated with shares or shares in natural gas exploration, production or supply companies or natural gas intermediation.
§ 3. The natural gas transport network manager is required:
1° to organize the technical management of natural gas streams on its network to ensure that the natural gas network is maintained in balance and by monitoring, now and, where appropriate, by restoring balance with all reasonable means available to it;
2° to implement all means in order to undertake any reasonable actions in order to avoid or remedy the effects of an emergency situation for the security and reliability of the network and to which it faces or is invoked by a user or any person concerned;
3° to obtain the energy it uses as part of its tasks.
§ 4. The onshore and offshore installations of the Interconnector Zeebrugge Terminal (IZT) and the Zeepipe Terminal (ZPT) located on Belgian territory, are managed with the upstream installations of which they are an integral part in accordance with international treaties. These facilities are not managed by the managers referred to in this Act. »
Art. 21. The title of Chapter IVter of the Act is replaced by the following title:
CHAPTER IVter. - Access to the natural gas transport network and natural gas and LNG storage facilities."
Art. 22. Article 15/5, § 1^er and § 2, first in the third paragraph, of the same law, inserted by the law of 29 April 1999 and amended by the law of 16 July 2001, are replaced by the following provisions:
"Art. 15/5. - Customers and holders of supply authorizations may access any natural gas transport network, natural gas storage facility and LNG installation on the basis of tariffs established in accordance with the provisions of section 15/5bis and approved by the Commission.
Without prejudice to the provisions on regulated tariffs and the code of conduct, access is negotiated in good faith.
Art. 15/5bis. § 1^er. The natural gas transmission network manager, the natural gas storage facility manager and the LNG installation manager individually determine the total income required to carry out their respective legal and regulatory obligations in order to establish the natural gas transport, natural gas storage and use of the LNG facility. This total income is subject to Commission approval.
§ 2. The respective income referred to in § 1^er cover individually for the four-year regular period:
(a) all actual costs required for the performance of the tasks referred to in Article 15/1, § 1^er, and 15/2 by any natural gas transport network manager, natural gas storage facility manager and LNG installation manager;
(b) a fair margin and amortization, both necessary to ensure the optimal operation, the necessary future investments and the sustainability of the natural gas transport network or the natural gas storage facility and/or LNG installation and to provide the relevant company with a favourable perspective on access to long-term capital markets;
(c) where applicable, the performance of public service obligations under section 15/11;
(d) where applicable, overloads on tariffs under the Act;
(e) where applicable, the costs and remuneration associated with the performance of the obligations referred to in Article 15/1, § 1^erParagraph 1^er1° and 2°.
§ 3. After the Commission's notice, the King may waive the connection and use rates of the natural gas transport network.
Derogations referred to in paragraph 1^er are applicable to extensions of facilities or new natural gas transport facilities recognized as national or European interest and necessary to allow the long-term development of such facilities. These exemptions may include:
1° the duration of application of the rates, which may be more than four years;
2° the level of equitable margin for the remuneration of capital invested.
These projects are recognized as national or European interest, which contribute, respectively on the Belgian or European level, to the security of supply and/or the optimization of the operation of the interconnected network(s) of the transport of natural gas, the storage of natural gas or LNG installations, and which facilitate the development of the national and/or European market.
The exemption does not prejudice the application of section 15/5ter.
Art. 15/5ter. - Without prejudice to Article 15/5quater, § 2, paragraph 2, the tariffs referred to in Articles 15/5 and 15/5bis shall be as follows:
1° they are non-discriminatory and transparent;
2° they cover income as specified in Article 15/5bis, § 2;
3° they allow the balanced development of the natural gas transport network, natural gas storage facility and/or LNG installation in Belgian territory, so as to ensure non-discriminatory treatment for all end consumers;
4° they are internationally comparable to the best tariff practices applied by managers of natural gas transport networks, natural gas storage and/or LNG installation, comparable in similar circumstances;
5° they aim to optimize the use of the capacity of the natural gas transport network, natural gas storage facility and LNG installation;
6° they are sufficiently decomposed, including:
(a) depending on the conditions and terms of use of the natural gas transport network of the natural gas storage facility and LNG installation;
(b) in respect of auxiliary services;
(c) with regard to possible overloads for public service obligations.
7° the tariff structures take into consideration the reserved capacity and necessary to ensure the transport of natural gas and the operation of the natural gas storage facility and LNG installation.
8° the tariff structures are uniform throughout the territory, without differentiation by geographic area.
Art. 15/5quater. § 1^er. The natural gas transmission network manager, the natural gas storage facility manager, the LNG installation manager individually submits an application for approval of their respective rates to the Commission as well as auxiliary service rates. They publish individually these approved rates for the respective activities, in accordance with the guidance of this chapter.
§ 2. The total income is fixed for a period of four years and the rates are for an identical period. This four-year statutory period begins at the time of tariff entry into force.
Total income is decomposed on a unit basis to obtain rates. These rates must meet the financial flow required by the network manager each year to meet their obligations under this Act.
§ 3. The total income for the first year of the regular period serves as a reference to the evolution of total income for the following years of the regulatory period of four years, taking into account the following evolution rules:
1° the categories of total income components as referred to in section 15/5bis and which relate to costs on which managers do not have direct control and which are necessary for the safety, effectiveness and reliability of the natural gas transport network, the natural gas storage facility and the LNG installation evolve according to the corresponding costs borne by managers and other costs that evolve on the basis of an objective
2° the amortizations evolve annually according to the investment plan;
3° the profit margin changes annually according to the evolution of the regulated asset and the rate of return referred to in 15/5s, 1°, c);
4° interest charges evolve according to the evolution of interest rates.
§ 4. Managers introduce to the Board, for approval, an income and tariff proposal, based on the total income referred to in section 15/5bis.
§ 5. The transport company may, during a regular period, submit an updated tariff proposal to the Commission for approval, covering new services and/or the adaptation of existing services. This proposal is introduced and instructed by the Commission in accordance with the application procedure for the tariff proposal. This updated tariff proposal takes into account the total income and tariff proposal approved by the Commission, without altering the integrity of the total income and the existing tariff structure.
Art. 15/5quinquies. - The manager of the natural gas transport network who carries out a transit activity shall submit a request for approval specific to the transit to the Commission in accordance with this chapter with the exception of Articles 15/5ter 2°, 4°, 5°, 8° and 15/5quater, § 3, and without prejudice to Article 15/19.
Art. 15/5sexies. § 1^er. Sections 15/5, 15/5bis, 15/5ter, 7°, 15/5quater and 15/5quinquies are not applicable to the natural gas transport facility referred to in Article 3, paragraph 2.
Art. 15/5s. - The King, after deliberation in the Council of Ministers, on proposals of the Commission established in consultation with the managers and submitted within forty calendar days of receipt the Minister's request, shall determine the rules relating to:
1° to the methodology for determining the total income that includes the fair margin referred to in section 15/5bis; this methodology specifies:
a) a definition of the regulated asset taking into account depreciation and new investments;
(b) depreciation allowances;
(c) a rate of return on this regulated asset taking into account a reasonable distribution between equity and borrowed funds, in accordance with the best practices of the international financial market, enabling investors in competitive markets to expect the same long-term return as for investments with similar risks;
2° to the general rate structure and basic principles and tariff procedures;
3° to the procedure for proposal, approval, refusal and publication of tariffs, excluding its motivation under this chapter;
4° to annual reports and information that managers must provide to the Commission for the control of its tariffs by the Commission;
5° to specific rules that the natural gas transport network manager, the natural gas storage facility manager, the LNG installation manager shall apply in respect of cost accounting;
6° to the objectives that managers must pursue in terms of cost control;
7° the year-over-year income differentials caused by a significant increase in capacity sales;
Art. 15/5octies. § 1^er. The natural gas transmission network manager, the natural gas storage facility manager and the LNG installation manager individually transmit the annual report with the results accounts of the new facilities for the past year to the Commission.
§ 2. The templates for the reports referred to in this chapter are developed by the Commission, after consultation with managers.
Art. 15/5nonies. - In the event of a regular period of time, exceptional circumstances beyond the control of the manager, the manager shall submit to the Commission a justified request for a review of the rules for determining the total income referred to in section 15/5bis for the coming years of the regulatory period.
At the end of each four-year regular period, the manager notes the balance (positive or negative) between the costs incurred and the revenues recorded during the regular period, provided that this balance results from a difference between the actual non-managerable costs and the anticipated non-manager costs, and/or a difference between the actual volumes and the anticipated sales volumes of the manager. The Committee shall inform the Commission of this balance and provide the evidence of this fact. The distribution of this balance is determined by a royal decree, deliberated in the Council of Ministers. »
Art. 23. Article 15/5, § 2, paragraph 4, of the same law, inserted by the law of 29 April 1999 and amended by the law of 16 July 2001, is replaced by the following provision:
"Art. 15/5decies. - After consultation with the regions, the King may, under the conditions it defines, extend the scope of articles 15/5 and 15/5bis to the rates of connection to the distribution and use networks of them, as well as to the rates of auxiliary services provided by the distribution companies. »
Art. 24. Article 15/5, § 3, of the same law, inserted by the law of 29 April 1999 and amended by the law of 16 July 2001, is replaced by the following provision:
"Art. 15/5undecies. § 1^er. On the Commission's proposal, the King establishes a code of good conduct for access to the natural gas transport network, natural gas storage facility and LNG installation.
The code of conduct defines:
1° the procedures and procedures for requesting access to the network;
2° the information to be provided by users of the natural gas transport network, natural gas storage facility and LNG installation to the natural gas transport network manager, natural gas storage facility manager and LNG installation manager;
3° the precautions to be taken by the natural gas transport network manager, the natural gas storage facility manager and the LNG installation manager in order to preserve the confidentiality of commercial data relating to users of the natural gas transport network, the natural gas storage facility of the LNG facility;
4° the deadlines for the natural gas transmission network manager, the natural gas storage facility manager and the LNG installation manager to respond to requests for access to their network and installation;
5° measures to avoid discrimination between users or user categories of the natural gas transport network, natural gas storage facility or LNG installation;
6° the minimum requirements for the legal and operational separation of the functions of natural gas transport and natural gas supply within natural gas transport network managers, natural gas storage or integrated LNG;
7° the basic principles relating to rights and obligations, on the one hand, the manager of the natural gas transport network, the natural gas storage facility manager and the LNG installation manager and, on the other, users of the natural gas transport network, the natural gas storage facility or the LNG installation, for access to these;
8 basic billing principles;
9° the basic principles relating to rights and obligations, on the one hand, the manager of the natural gas transport network, the natural gas storage facility manager and the LNG installation manager, and on the other hand, users of the natural gas transport network, the natural gas storage facility or the installation of LNG in respect of the use of them, including in the area of negotiation for access to capacity
10° the measures that must be taken in the commitment program to ensure that any discriminatory practice is excluded and to ensure the appropriate control of its respect. The program lists specific employee obligations to achieve this goal. The person or agency responsible for the monitoring of the engagement program must submit a report annually describing the action taken by the Commission. This report is published;
11° the requirements for the independence of managers' staff in respect of producers, distributors, suppliers and intermediaries.
The granting and maintenance of any transport or supply authorization are subject to compliance with the code of conduct.
§ 2. Without prejudice to any legal obligation to disclose information, natural gas companies preserve the confidentiality of commercially sensitive information obtained by third parties in connection with access to the natural gas transport network, the natural gas storage facility or the installation of LNG or negotiations on this subject. They refrain from using this information for their own sales or purchases of natural gas. »
Art. 25. An article 15/5duodecies, as follows, is inserted in the same law:
"Art. 15/5duodecies. § 1^er. The new large natural gas installations, i.e. interconnections with neighbouring states, LNG and storage facilities may be exempted from the provisions of this chapter and those of the tariff methodology, with the exception of sections 15/6, 15/7, 15/8 and 15/9. This exemption is granted by the King, following the advice of the Commission to the extent that:
1° investment must strengthen competition in the provision of natural gas and improve supply security;
2° the level of investment risk is such that this investment would not be realized if an exemption was not granted;
3° the facility belongs to a natural or legal person who is distinct, at least in the legal form, from the network managers within whom the facility is built;
4° the rates are collected from the users of the facility concerned;
5° the derogation does not affect the competition or good functioning of the national natural gas market, nor the effectiveness of the network operation to which the installation is connected.
§ 2. The derogation may cover all or part, respectively, of the new installation, of the significantly increased capacity of this facility, or of the modifications of this facility allowing the development of new gas approving sources.
In the decision on the granting of an exemption, consideration should be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and the non-discriminatory access to interconnections with neighbouring states.
The duration of contracts, the additional capacity to build or the modification of existing capacity, the project perspective and national circumstances shall be taken into account.
§ 3. When an exemption is granted, the Minister may determine the rules and mechanisms for the management and allocation of capacity to the extent that this does not prevent the implementation of long-term contracts.
§ 4. Any request for derogation is notified without delay to the European Commission, as well as all relevant information. »
Art. 26. In section 15/5 of the same law, paragraphs 4, 5 and 6 are repealed.
Art. 27. Section 15/6 of the Act, inserted by the Act of 29 April 1999 and amended by the Acts of 16 July 2001 and 20 March 2003, is replaced by the following provision:
"The final customers connected to the natural gas transport network and the suppliers that feed their clienst via a natural gas network and distribution companies have the right of access from 1^er July 2004 to the natural gas transport network, natural gas storage facility and LNG installation. »
Art. 28. In Article 15/7, § 2, of the same law, inserted by the law of 29 April 1999, the words "Article 25, § 3, of Directive 98/30" are replaced by the words "Article 27, paragraph 3, of Directive 2003/55".
Art. 29. Section 15/8 of the Act, inserted by the Act of 29 April 1999, is replaced by the following provision:
"Without prejudice to the current contracts and the commitments of Belgium under international treaties, the King, by order deliberately in the Council of Ministers, after the opinion of the Commission, determines to what extent and under what conditions the provisions of this Act apply to natural gas companies that fall under the law of States that are not a member of the European Union. »
Art. 30. In section 15/9 of the Act, inserted by the Act of 29 April 1999, the following amendments are made:
1° the words "and eligible customers" are deleted;
2° the words "Article 23 of Directive 98/30" are replaced by the words "Article 20 of Directive 2003/55".
Art. 31. Section 15/10 of the Act, inserted by the Act of 29 April 1999 and amended by the Act of 20 March 2003, is amended as follows:
1° in § 1^erthe words "to provide end customers who do not have the quality of eligible customers" are deleted;
2° in § 2, second paragraph, the words "gas companies" are replaced by the words "natural gas companies".
Art. 32. In section 15/12 of the Act, inserted by the Act of 29 April 1999 and amended by the Act of 16 July 2001, the following amendments are made:
1° in §§ 1^er and 3, the words "gas companies" are replaced by the words "natural gas companies";
2° to § 2, first sentence, the words "out of the natural gas sector" are replaced by the words "not connected to the transport of natural gas, the distribution of natural gas, LNG activities and the storage of natural gas";
3° the article is completed by the following paragraph:
“§4. The combined network manager maintains separate accounting for each type of activity. »
Art. 33. The title of chapter IVquinquies of the Act is replaced by the following title:
« CHAPTER IVquinquies. - Monitoring of natural gas supply security."
Art. 34. Section 15/13 of the Act, inserted by the Act of 29 April 1999 and amended by the Acts of 30 December 2001 and 20 March 2003, is replaced by the following provision:
"Art. 15/13. § 1^er. A forward-looking study on natural gas supply security is prepared by the Energy Administration, in collaboration with the Planning Office, following the Commission's advice and after consultation with the natural gas transport network manager, the natural gas storage facility manager and the LNG installation manager, holders of natural gas supply authorization, regions and the Interdepartmental Commission on Sustainable Development.
A consultation is planned with the regions on the promotion of the ratioal use of energy and the integration of environmental constraints. This consultation must take place within one month.
§ 2. The forward-looking study on natural gas security takes into account the following:
1° the estimation of the evolution of the demand and supply of natural gas in the medium and long term;
2° guidelines for diversification of sources of supply and identification of new natural gas supply needs;
3° an indicative program of investments for the maintenance and development of the network of natural gas transport, natural gas storage and LNG installation;
4° the level and quality of maintenance of the network and facilities;
5° the measures envisaged in the event that one or more producers or natural gas suppliers fail to supply the country;
6° in natural gas storage capacity, the minimum objectives to be achieved in the context of the country's supply security.
§ 3. The forward-looking study on natural gas supply security is prepared no later than the first 15 March following the implementation of this section; it is developed for a period of five years and is subject to an annual update.
§ 4. The King regulates the modalities for the development and publication of a prospective study concerning the security of supply of natural gas.
§ 5. Following the advice of the Commission, the King may, by order deliberately in the Council of Ministers, take the necessary steps to ensure the transposition of the provisions of Directive 2001/42/EC concerning the assessment of the impact of certain plans and programmes on the environment, as they are applicable to the forward-looking study on the security of natural gas supply. The opinion of the legislation section of the Council of State is published at the same time as the relevant decree. This order ceases to produce its effects if it has not been confirmed by a law within fifteen months of its publication to the Belgian Monitor".
Art. 35. In section 15/14 of the Act, inserted by the Act of 29 April 1999 and amended by the Acts of 16 July 2001 and 20 March 2003, the following amendments are made:
1° § 2, paragraph 2, 4, is replaced by the following provision:
"4° advises the Energy Administration on requests for the issuance of supply authorizations under section 15/3 and monitors compliance with the conditions of such authorizations; give notice to this administration on requests for the issuance of transportation authorizations under section 3 »;
2° in § 2, paragraph 2, 10, the words "that do not have the quality of eligible client and between categories of customers and eligible customers" are deleted;
3° § 2, paragraph 2, 5°, is replaced by the following provision:
"5° give notice to the Energy Administration concerning the forward-looking study concerning the security of supply of natural gas, in accordance with Article 15/13, § 1^er; »
4° in § 2, paragraph 2, 6, the words "Article 15/5, § 2" are replaced by the words "Articles 15/5 to 15/5decies";
5° in § 2, paragraph 2, 9bis, the words "Article 15/5, § 2" are replaced by the words "Articles 15/5 to 15/5decies".
Art. 36. In Article 15/16, § 1^erof the same law, inserted by the law of 29 April 1999 and amended by the law of 16 July 2001, the first sentence is supplemented as follows:
"as long as it motivates its request."
Art. 37. In article 15/17 of the same law, inserted by the law of 29 April 1999, the words "in article 15/5, § 2" are replaced by the words "in articles 15/5 to 15/5decies".
Art. 38. Article 15/19, as follows, is inserted in the same law:
"Art. 15/19. - Contracts entered into before 1^er July 2004 pursuant to Article 3, paragraph 1^er, of Council Directive 91/296/EEC of 31 May 1991 on the transit of natural gas on major networks remain valid and continue to be implemented in accordance with the provisions of the Directive. »
Art. 39. In section 24 of the Act, inserted by the Act of 29 April 1999, the words "Belgian law societies" are replaced by the words "Natural gas companies, excluding managers".
Art. 40. Article 25, as follows, is inserted in the same law:
“Art. 25. - Chapters IVter and IVquater of this Act are not applicable to the facilities of the Interconnector or to the facilities of the Zeepipe in Belgian territory. »
CHAPTER III. - Final provisions
Art. 41. § 1^er. The King may coordinate the provisions of the Act of 12 April 1965 relating to the carriage of gaseous and other products by pipelines and the provisions that would have expressly or implicitly amended them at the time the coordination is established.
§ 2. To this end:
1° change the order, numbering and, in general, the presentation of the dispostions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions;
4° adapt the presentation of the references made to the provisions of the coordination, other provisions that are not repeated therein.
The co-ordinations will bear the following title: "Natural Gas Code".
Art. 42. Article 7 comes into force 9 months after the publication of this Act to the Belgian Monitor.
The King, by deliberate decree in the Council of Ministers, sets out the entry into force of articles 9, 21 to 23, 33, 34, 35, 3, 4 and 5, and 36.
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, 1^er June 2005.
ALBERT
By the King:
Minister of Energy,
Mr. VERWILGHEN
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Session 2004-2005
House of Representatives
Documents. - Bill No. 51-1595/1. - Amendments, n^bones 51-1595/2 to 4. - Report, no. 51-1595/5. - Text adopted by the Commission, No. 51-1595/6. - Text adopted in plenary and transmitted to the Senate, No. 51-1595/7.
Full report. - 28 April 2005.
Senate
Documents. - Project referred to by the Senate, No. 3-1160/1. - Amendments, no. 3-1160/2. - Report, number 3-1160/3. - Text corrected by commission, no. 3-1160/4. - Decision not to amend, No. 3-1160/5.
Annales of the Senate. - 19 May 2005.