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11 AVRIL 2003. - Act on provisions for the dismantling of nuclear power plants and for the management of fissile material irradiated in nuclear power plants (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.
Art. 2. For the purposes of this Act, it shall be understood by:
1° "industrial commissioning date": date of the formal agreement between the electricity producer, the nuclear power plant builders and the study office by which the project phase is finalized and the production phase begins, i.e. for existing nuclear power plants:
- Doel 1: February 15, 1975
- Doel 2:^er December 1975
- Doel 3: 1^er October 1982
- Doel 4: 1^er July 1985
- Tihange 1:^er October 1975
- Tihange 2:^er February 1983
- Tihange 3: 1^er September 1985;
2° "dismantling provisions": provisions for the costs of shutting down the nuclear power plant reactor and unloading nuclear fuel, dismantling the nuclear facility, remediation of the site and managing the resulting radioactive wastes;
3° " provisions for the management of irradiated fissile material " : provisions for costs related to the management of irradiated fissile material in nuclear power plants;
4° "Nuclear Provisioning Society": the anonymous company Société belge des Combustibles nucléaires Synatom, referred to in Article 1^er of the Royal Decree of 10 June 1994 and whose status is regulated by Article 179, § 1^erthe Act of 8 August 1980 on budget proposals 1979-1980, or any company that would come to its rights;
5° "Nuclear operators": any operator, holder of a royal authorization, nuclear power plants or any company that would be entitled to its rights;
6° "Nuclear power plants": any nuclear facility that produces, industrially, electricity;
7° "the Royal Decree of 10 June 1994": the Royal Decree of 10 June 1994 establishing for the benefit of the State a specific action of Synatom.
CHAPTER II. - Arrangements for the dismantling of nuclear power plants and for the management of fissile material irradiated in nuclear power plants
Section 1^re. - Follow-up Committee
Sub-section 1^re. - Constitution and composition
Art. 3. It is constituted a Monitoring Committee on the mechanisms related to provisions for the dismantling and management of irradiated fissile material, shortened "the Follow-up Committee", having the legal personality and having its seat in the administrative district of Brussels-Capital.
Art. 4. § 1^er. The Monitoring Committee will be composed of the following six persons:
- the Administrator General of the Treasury Administration or its alternate;
- the chair of the steering committee of the Electricity and Gas Commission or its alternate;
- the President of the Insurance Control Board or its alternate;
- the officer of the Budget Administration or his alternate;
- a person designated by the National Bank of Belgium or its alternate;
- the executive officer of the Energy Administration, or his deputy.
The members of the Follow-up Committee and their respective alternates shall be appointed by the King by order deliberately in the Council of Ministers.
§ 2. The Director General of the Federal Nuclear Control Agency and the Director General of the National Organization for Radioactive Waste and Enriched Fissile Materials or their delegates may attend the meetings of the Follow-up Committee with an advisory voice.
§ 3. The Follow-up Committee is assisted by a permanent secretariat. This Secretariat is under the direction of a permanent secretary who is designated by the Minister who has the energy in his or her powers.
Sub-section 2. - Missions and operating rules
Art. 5. § 1^er. The Follow-up Committee shall issue notices in the cases referred to in § 2 and monitor the possibility of the nuclear supply company under Article 14 to lend funds to the nuclear operator and the methods of establishing provisions as defined in Article 5, § 2. With regard to the existence and sufficiency of the provisions, the resolutions of the Follow-up Committee require the consistent opinion of the ONDRAF.
§ 2. In order to fulfil the mission mentioned in § 1^er :
1° the Follow-up Committee shall issue advice, initiative or at the request of the competent authorities concerning:
a. the methods of establishing provisions for the dismantling and management of irradiated fissile material, and periodically assess the appropriateness of these methods, in accordance with Article 12;
b. the revision of the maximum percentage of the representative funds of the counter-value of the provisions that the nuclear supply company can lend to nuclear operators, in accordance with Article 14, § 2;
c. the categories of assets in which the nuclerary provisioning company invests the share of such funds that it cannot lend to nuclear operators, in accordance with Article 14, § 5.
2° the Monitoring Committee:
a. the data that the nuclear supply company makes available on the sufficiency of the provisions;
b. the correct application of provisions for dismantling and managing irradiated fissile material;
c. the conditions under which the nuclear supply company lends these funds to nuclear operators, in accordance with Article 14, § 4;
d. the policy of nuclear operators on privileges and mortgages.
Art. 6. § 1^er. The Follow-up Committee shall issue its views to a simple majority. These notices involve the nuclear supply company.
§ 2. The nuclear provisioning company may object to any notice from the Follow-up Committee from the Minister with Energy in his or her powers within 14 working days after receiving the notice.
§ 3. The Minister with Energy in his or her powers, submits the opposition to the Council of Ministers, which in the short term takes a binding decision. The opposition introduced in accordance with § 2 suspends the obligation of the nuclear supply company to follow the opinions of the Follow-up Committee until the day the Council of Ministers makes its decision.
§ 4. Within five working days of the written request, the Follow-up Committee shall provide to the nuclear supply company or, where appropriate, to the nuclear operator concerned, a copy of any notice, report, study or document and any statistics or other data on which a decision or notice of the Follow-up Committee concerning the nuclear supply company or a nuclear operator is based or referred to in such a decision or notice.
Art. 7. § 1^er. In order to enable the Monitoring Committee to carry out its tasks, the nuclear supply company will provide the following information to the Monitoring Committee:
- annually: at a date to be determined by the Follow-up Committee the amount of provisions for the dismantling and management of irradiated fissile material, the valuation of the assets corresponding to these provisions, the calculation of the compensation payable by nuclear operators to the nuclear supply company for the current year, the expenses for the next three years, and the general direction of its investment policy; the international "credit rating" of the nuclear operator and the debt ratio established quarterly against the equity of the nuclear operator, as referred to in Article 14;
- every three years at a date to be determined by the Follow-up Committee and after the first revision of the method of provision under Article 12, §§ 2 and 3: the basic characteristics of the establishment of provisions for the dismantling and management of fissile material irradiated, such as the underlying strategic approach, the development programme, the implementation programme, the timing, the estimation of the means
- any agreements between the nuclear supply company and the nuclear operator or related companies and the National Organization of Radioactive Wastes and Enriched Fissile Materials with regard to the dismantling of nuclear power plants and the treatment of radioactive wastes;
- each modification of the credit rating of the nuclear operator or the circumstance that the agency concerned has placed the nuclear operator under "credit watch";
- each quarter, at a date to be determined by the Follow-up Committee, the ratio of debt to the equity of the nuclear operator, in accordance with Article 14, § 2;
- immediately, each modification of the nuclear operator's policy on mortgages and guarantees.
§ 2. In order to enable the Follow-up Committee to carry out its tasks, nuclear operators will provide the Follow-up Committee, without delay, with all decisions and information regarding privileges and mortgages.
§ 3. The Monitoring Committee may, in carrying out its missions, request the advice of national, foreign or international institutions or specialized jurisdictional centres, such as the National Organization of Radioactive Wastes and Enriched Fissile Materials or the Federal Nuclear Control Agency.
Art. 8. § 1^er. Each year, the Follow-up Committee submits a report of its activities to the Minister with energy in his or her duties, who communicates this report to the Federal Legislative Chambers and ensures that the report is appropriately publicized.
§ 2. The members and staff of the Follow-up Committee secretariat shall be subject to professional secrecy and may not disclose to any person the confidential information they have been aware of as a result of their duties with the Follow-up Committee, except in cases where they are called to testify in court, without prejudice to the exchange of information with competent authorities of others Member States of the European Union expressly provided or authorized by regulations or directives issued by the institutions of the European Union.
Art. 9. The operating costs, the costs of the notices and studies requested by the Follow-up Committee under section 7 are borne by the dismantling provisions.
The King defines, by order deliberately in the Council of Ministers, the maximum annual amount that can be devoted to the charge of the provisions.
Art. 10. The King shall establish, on the proposal of the Follow-up Committee, a rules of procedure and shall determine the modalities and operating costs of the Follow-up Committee and its permanent secretariat, including the amount of tokens to be allocated to its members.
Section 2. - Procedures for establishing and managing provisions for dismantling and managing irradiated fissile material
Sub-section 1^re. - Establishment of provisions for the dismantling and management of irradiated fissile material
Art. 11. § 1^er. The nuclear supply company is responsible for the coverage of the costs of dismantling nuclear power plants, as referred to in Article 2, 2°, and the costs associated with the management of fissile material irradiated in those nuclear power plants, as referred to in Article 2, 3°. For this purpose, the provisioning company is in its accounts provisions for the dismantling and management of irradiated fissile material, in accordance with the methods referred to in article 12 or decided under that article.
Nuclear operators are required to pay to the nuclear supply company the amounts corresponding to the provisions for the dismantling and management of irradiated fissile material.
§ 2. Nuclear operators shall, by 31 December 2003, transfer to the nuclear supply company an amount equal to the counter-value of the provisions already constituted by nuclear operators for dismantling nuclear power plants.
From the 2003 accounting year, nuclear operators transfer to the nuclear supply company, in quarterly payments, a total amount that corresponds to the provision for the dismantling and management of fissile material irradiated for the current fiscal year
§ 3. The provisions for dismantling will be made in such a way as to cover, for each nuclear power plant, the total amount of the updated dismantling costs during the scheduled shutdown of the nuclear power plant concerned, not later than forty years after the date of industrial service.
The dismantling will be ensured by nuclear operators on behalf of the nuclear supply company and the costs of dismantling will be charged by the nuclear supply company on the provisions established by it. If, in the course of dismantling operations, the provisions for dismantling prove to be less than the costs of dismantling, the nuclear operators will pay to the nuclear supply company the amount necessary to cover the excess costs of dismantling at the time it is due.
§ 4. Provisions for the management of irradiated fissile material are increased annually by the nuclear supply company based on the amount of irradiated fissile material produced in the corresponding year.
The management of irradiated fissile material will be ensured exclusively by the nuclear supply company and the costs of managing irradiated fissile material will be charged by the provisioning company on the provisions established by it. If, in the course of irradiated fissile material management operations, the provisions prove to be lower than the irradiated fissile material management costs, nuclear operators will pay the nuclear supply company the amount necessary to cover the excess of the irradiated fissile material management costs at the time it is due.
Art. 12. § 1^er. In the expectation of a revision of the method of provisioning in accordance with § 2 and up to the date of its final establishment in accordance with § 3, the nuclear supply company constitutes the provisions for the dismantling and management of fissile material irradiated in accordance with the provisions currently in force.
§ 2. Within six months of the publication to the Belgian Monitor of this Act, the nuclear supply company and the nuclear operators concerned forward to the Follow-up Committee a proposal for a review of the dismantling provisioning method and a proposal for a review of the irradiated fissile material management provisioning method, containing at least the following:
- a scenario developed for the dismantling of nuclear power plants and for the management of irradiated fissile material;
- a detailed estimate of the costs associated with it, as well as a schedule of planned spending; and
- a method for calculating provisions, according to discount and capitalization rates corresponding to established financial analysis techniques.
§ 3. The proposals referred to in § 2 are subject to prior approval by the Follow-up Committee. If it does not approve these proposals, it shall state its comments to the nuclear supply company and, if it is the provisions of dismantling, to the nuclear operator concerned within 60 days of the receipt of the proposal and invite them to submit, within 60 days, a new proposal that takes into account these remarks, or a reasoned opinion stating the reasons why they consider it impossible to give effect to them. If within 60 days of the receipt of the new proposal or the reasoned notice, the Follow-up Committee does not approve the original or new proposal, the Minister with the energy in his or her powers submits the points of divergence to the Council of Ministers with a file including the respective views of each party and the representative solutions retained in the international context.
§ 4. Every three years after the first revision under paragraphs 2 and 3, the Follow-up Committee shall conduct an audit of the methods used to establish provisions for the dismantling and management of irradiated fissile material, particularly in the light of the information referred to in article 7, § 1^erin consultation with the nuclear supply company and, for dismantling provisions, with the nuclear operators concerned. On this occasion, the nuclear supply company and, where appropriate, the nuclear operator concerned may propose modifications to these methods and the Follow-up Committee may require that the nuclear supply company and, where appropriate, the nuclear operator concerned propose such modifications. In this case, the procedure provided for in § 3 applies by analogy.
Sub-section 2. - Maintenance of provisions for dismantling and managing irradiated fissile material
Art. 13. The nuclear supply company is responsible for the management of funds that constitute the counter-value of provisions for the dismantling and management of irradiated fissile material.
Art. 14. § 1^er. The nuclear supply company may lend, at the market rate for industrial credits, the counter-value of the provisions for the dismantling and management of irradiated fissile material, to a maximum of 75 per cent of the total amount of these provisions, to nuclear operators who may be considered good quality debtors according to the criteria set out in § 2. Without prejudice to § 2, paragraph 2, this percentage is 100 per cent during a 24-month transition period following the date of publication of this Act to the Belgian Monitor.
§ 2. For the application of § 1^er, the quality of the credit of each nuclear operator is measured and reassessed periodically by means of a ratio of debt to equity, on a consolidated basis, and a "credit rating" of an international reputation rating agency.
In accordance with § 1^erthe Follow-up Committee may review the maximum percentage of the funds that the nuclear supply company can lend to a nuclear operator, downward and upward, as the quality of its credit evolves from those criteria, on a scale that is graduated and transparent and will be established in a convention between the State, the nuclear supply company and nuclear operators. This agreement must be approved by the Council of Ministers.
Instead of reviewing the percentage downwards, the Follow-up Committee may maintain it if the nuclear operator concerned constitutes an adequate security or personal security for the nuclear supply company.
§ 3. If significant changes occur in the credit rating method or if, due to other external developments, the scale is no longer adequate to measure the creditworthiness of a company such as the nuclear operator, the nuclear supply company and/or the nuclear operator may propose to the Follow-up Committee changes to that scale or the definition or measurement of indicators or the Follow-up Committee may require that they propose such modifications. If the Follow-up Committee and the nuclear supply company and/or the nuclear operator fail to reach an agreement in this regard, the King may, within six months, renewable once for two months, set the scale on the proposal of the Follow-up Committee by a deliberate order in the Council of Ministers.
§ 4. The conditions of loans granted by the nuclear supply company pursuant to § 1^er are set out in one or more conventions established between the company and the nuclear operator concerned. These conventions shall be communicated to the Follow-up Committee, which shall verify compliance with the provisions of this Act and the convention referred to in § 2 and which may require that the parties amend the provisions incompatible with these provisions.
§ 5. The portion of the provisions that cannot be lending, i.e. at least 25 per cent of the total provisions, is placed by the nuclear supply company in assets outside nuclear operators, with sufficient diversification and distribution of investments to minimize the risk.
§ 6. At any time, the nuclear supply company retains sufficient liquidity, in the form of cash or available values, to finance all expenses related to the dismantling and management of fissile material irradiated for the following three years of operation.
Art. 15. As soon as the Follow-up Committee reduces the percentage of funds that the nuclear supply company can lend to a nuclear operator pursuant to Article 14, § 2, it sets out the amount that the latter must pay to the nuclear supply company on the loans it has granted to it under Article 14, § 1^er, as well as the shortest possible time limit in which this reimbursement is to be made, taking into account the deadlines to mobilize funds.
Art. 16. § 1^er. A general privilege on the movable property of nuclear operators, in favour of the nuclear supply company, arises as soon as the Follow-up Committee imposes on the nuclear supply company the full or partial reimbursement of the loans concerned. This privilege guarantees the reimbursement of the loans concerned up to the amount of reimbursement established by the Follow-up Committee.
§ 2. The privilege referred to in § 1^er falls in each of the following cases:
- once the amount established by the Follow-up Committee is effectively reimbursed to the nuclear supply company;
- as soon as a parent company of the nuclear operator or a credit institution bears the guarantor of this amount vis-à-vis the nuclear supply company, provided that the guarantor concerned has with an international reputation rating agency of a "credit rating" equal to the "credit rating" that corresponds to a maximum loan quotity of 75 percent as defined in the convention referred to in Article 14;
- as soon as the Council of Ministers or, where appropriate, the competent judge has decided that there is no need to make the reimbursement ordered by the Follow-up Committee.
§ 3. The loan agreements referred to in Article 14, § 4, contain a so-called "negative pledge" clause under which the nuclear operator concerned shall not encumber its assets of mortgages or other security rights for its financial indebtedness except to constitute or procure an equivalent security for the benefit of the nuclear supply company, provided that this prohibition shall include the exceptions of use for existing security rights, acquired security rights in the interest of the nuclear supply company
Art. 17. The privilege of section 16 shall be placed immediately after that mentioned in section 19, 4°, nuns, of the mortgage law of 16 December 1851.
Art. 18. The Follow-up Committee ensures that the provisions established under Article 11 are not surplus to the costs of dismantling and managing irradiated fissile material.
Art. 19. Nuclear operators and the nuclear supply company immediately inform the Follow-up Committee of any significant change in their shareholding or any merger, splitting, liquidation or provision of universality or branch of activity and the timely inforcing of any element that leads to bankruptcy or concordat. They will inform the Follow-up Committee before filing any bankruptcy or concordat claims.
CHAPTER III. - Amendments
Art. 20. In Article 3, § 2, of the Royal Decree of 10 June 1994 is inserted after the words "related to the supply of the country of energy", the following phrase:
"and the adequacy of provisions for the dismantling of nuclear power plants and for the management of fissile material irradiated in these nuclear power plants. »
Art. 21. Article 179, § 1^er, of the Act of 8 August 1980 on budget proposals 1979-1980, is inserted after the words "nuclear fuel cycle", the following phrase:
"as well as provisions for the dismantling of nuclear power plants and for the management of fissile material irradiated in these nuclear power plants. »
CHAPTER IV. - Final provisions
Art. 22. Without prejudice to the other measures provided for in this Act, the Follow-up Committee may enjoin any natural or legal person established in Belgium to comply with specified provisions of articles 7, 12 and 18 or their enforcement orders within the time limit determined by the Follow-up Committee. If the person remains in default on the expiry of the period, the Follow-up Committee may, after hearing the person or having duly summoned him, make an administrative fine. The Follow-up Committee sets the amount of the fine and motivates its decision. The fine cannot be, per calendar day, less than 1. 250 euros, or, in total, more than 2 million euros. The fine is recovered for the benefit of the treasure by the Administration of the value added tax, registration and domains.
Art. 23. Within two months of the coming into force of this Act, the nuclear supply company amends its statutes and takes any other measures to comply with the provisions of this Act.
Art. 24. The King, by order deliberately in the Council of Ministers, regulates the application of this Act to the Cooperative Society for the Production of Electricity, referred to below as the "SPE", including:
1° organizes the transfer to the nuclear supply company of funds constituting the counterpart of the provisions for the dismantling established in the accounts of the SPE as at 31 December 2002;
2° to the extent that the SPE remains involved in the industrial production of electricity by fission of nuclear fuels in Belgium, provides a proportional contribution of the SPE to the constitution of provisions for dismantling and managing irradiated materials;
3° the establishment of a loan mechanism referred to in this Act.
Art. 25. By deliberately decreed in the Council of Ministers, after the advice of the Follow-up Committee, the King may take the necessary measures to ensure the transfer of mandatory provisions resulting from international treaties, or international acts taken under them, and concerning the purpose of this Act.
Orders made under the first paragraph may amend, supplement, replace or repeal existing legal provisions.
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 11 April 2003.
ALBERT
By the King:
Deputy Prime Minister
Minister of Mobility and Transport,
Ms. I. DURANT
State Secretary for Energy and Sustainable Development,
O. DELEUZE
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Notes
(1) House of Representatives.
Parliamentary documents.
Documents 50-2238.
Regular session 2002/2003.
No. 1. Bill.
No. 2. Amendment.
No. 3. Report.
No. 4: Text corrected by the commission.
No. 5: Text adopted in plenary and transmitted to the Senate.
Annales de la chambre des représentants : compte rendu complet : 27 mars 2003.
Senate:
Parliamentary documents:
No. 2-1564.
Regular session 2002/2003.
No. 1. Project referred to by the Senate.
No. 2. Report.
No. 3. Decision not to amend.