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Law Establishing The Administrative Fines For Offences Under The Navigation Laws

Original Language Title: Loi instituant des amendes administratives applicables en cas d'infractions aux lois sur la navigation

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belgiquelex.be - Carrefour Bank of LegislationELI - Navigation system by European legal identifier
http://www.ejustice.just.fgov.be/eli/loi/2016/12/25/2017030001/monitor

25 DECEMBER 2016. - An Act to establish administrative fines for violations of the laws on navigation



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
Article 1er. This Act regulates a matter referred to in Article 74 of the Constitution.
CHAPTER 1er. - Definitions
Art. 2. For the purposes of this Act, it shall be understood by:
1° the laws on navigation:
- the Act of 18 February 1969 on measures for the execution of international treaties and acts in the field of carriage by sea, road, rail or inland waterway;
- the Act of 5 June 1972 on the safety of navigation vessels;
- the Act of 24 November 1975 approving and implementing the 1972 Convention on International Settlements to Prevent Collision at Sea, annexed Regulations and Annexes made in London on 20 October 1972;
- the Act of 8 July 1976 relating to the licence to operate inland navigation vessels and to the financing of the Institute for the carriage by ferry;
- the Act of 20 August 1981 approving the International Convention on the Safety of Containers and Annexes made in Geneva on 2 December 1972;
- Act of 12 July 1983 on the gauge of ships;
- the law of 25 January 1984 protecting the Belgian merchant navy;
- Act of 21 December 1990 on the registration of ships;
- the Act of 21 May 1991 on the establishment of a patent of conduct for navigation on the inland waterways of the Kingdom;
- Act of 6 April 1995 on the prevention of pollution by ships;
- the Act of 20 January 1999 concerning the protection of the marine environment and the organization of the development of marine spaces under Belgian jurisdiction;
- the Act of 22 April 1999 concerning the exclusive economic zone of Belgium in the North Sea;
- the Marine Safety Act of 5 February 2007;
- the Act of 20 January 2011 implementing the cooperation agreement of 3 December 2009 between the Federal State and the Regions concerning the implementation of the Convention on the Collection, Deposit and Receipt of Wastes in Rhine and Inland Navigation, signed in Strasbourg on 9 September 1996 and carrying out the Convention;
- the Act of 30 January 2012 regulating the substances referred to in Article 78 of the Constitution in respect of the insurance of ship owners for maritime claims;
- the Act of 30 January 2012 regulating the substances referred to in Article 78 of the Constitution in respect of liability of passenger carriers by sea in the event of an accident;
- the Act of 19 December 2012 on the implementation of various international conventions on civil liability for pollution by ships, concerning substances referred to in Article 78 of the Constitution;
- the Act of 4 April 2014 on the Protection of Subaquatic Cultural Heritage;
- the Act of 13 June 2014 for the Enforcement and Control of the Implementation of the Maritime Labour Convention 2006 (I);
- the Act of 19 June 2016 implementing Regulation (EU) No 1257/2013 of the European Parliament and the Council of 20 November 2013 concerning the recycling of ships and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC.
2° the competent authority: the authority designated in accordance with Article 3, § 2, paragraph 1er.
CHAPTER 2. - Administrative fine for criminal offences
Art. 3. § 1er. Under the conditions laid down in this Act, and provided that the facts are subject to criminal prosecution, an administrative fine may be imposed for violations of the laws on navigation and their enforcement orders that fall within federal jurisdiction.
The administrative fine is applied notwithstanding other disciplinary sanctions.
§ 2. The King is competent for the designation, operation and composition of the competent authority to impose administrative fines in accordance with paragraph 1erParagraph 1er.
The King may designate the members of the competent authority as judicial police officers.
Members of the competent authority may not deal with the offences they themselves found.
Art. 4. The Navigation Police, the Maritime Information Hub, any authority, officer or public officer who, in the performance of his duties, becomes aware of an offence under the Navigation Acts or their enforcement orders shall inform the competent authority within 14 days.
A copy of the record of the violation of the laws on navigation or their enforcement orders shall be transmitted to the competent authority.
Art. 5. § 1er. The Public Prosecution Service shall have a period of one month from the date of receipt of the minutes to inform the competent authority in writing or electronically:
1° that information or judicial instruction has been opened, or
2° that proceedings have been initiated, or
3° that it was applied to articles 216bis or 216ter of the Code of Criminal Investigation, or
4° that the file was filed without action for reasons related to the constituent elements of the offence, or
5° that the file was filed without action for reasons that are not related to the constituent elements of the offence.
Where the public department transmits the information referred to in paragraph 1er, 1°, 2°, 3° or 4° to the competent authority, the administrative action referred to in this Act shall cease
§ 2. After the Public Prosecutor has forwarded the information referred to in subsection 1erParagraph 1er, 5°, or, in the absence of this information, after the period referred to in paragraph 1erParagraph 1erthe competent authority shall decide to proceed with administrative proceedings or classification without further action.
If the competent authority fails to conduct administrative proceedings, it shall state the reason for classification decisions without action.
If the competent authority conducts administrative proceedings, it shall summon the person by registered consignment no later than one year from the day the act was committed. The recommended shipment contains at least the following information:
1 the facts for which the administrative fine procedure has been initiated;
2° the days and hours to which the person concerned has the right to consult his case;
3° the fact that he has the right to be assisted by counsel;
4° the fact that it has a period of thirty days from the first working day following the convocation to send to the competent authority a recommended consignment containing its means of defence and, if so, the request to be heard.
§ 3. When the competent authority is seized of an application in accordance with paragraph 2, 4°, it shall have 45 days, from the date of receipt of the application, to notify the person, by registered consignment, of the date of the hearing.
These deadlines are limited to nullity of the entire administrative fine procedure.
The interested party may, by registered mail to the competent authority, request the postponement of the hearing by indicating the reason for the postponement. The competent authority shall, in such case, set a new date by registered consignment.
Art. 6. § 1er. After the thirty-day period referred to in Article 5, § 2, 4°, and, if any, after the hearing of the person concerned, the competent authority shall make a decision concerning the facts for which the administrative fine procedure has been initiated. The competent authority shall notify the interested party of this decision by registered mail.
The decision to impose an administrative fine is reasoned and indicates, as a matter of nullity, the amount of the administrative fine and the possibility of appeal.
§ 2. In the same decision as that in which it imposes an administrative fine, the competent authority may grant, in whole or in part, the stay of the execution of the payment of that fine. The King determines the terms of the stay to execution.
§ 3. The decision has enforceable force upon the expiration of one month from the day of its notification.
The notification of the decision setting the amount of the administrative fine extinguishes the public action.
The payment of the administrative fine terminates the action of the competent authority.
Art. 7. The minimum and maximum amounts of the administrative fine are, respectively, the minimum and maximum amounts, plus the additional cents, of the criminal fine provided for in the navigation laws that punish the same fact. For the determination of the amount of the administrative fine, the competent authority shall take into account the gravity of the facts and possible recidivism.
In case of recidivism in the year following a decision to impose an administrative fine, the amounts may be doubled.
In the event of an infringement contest, the amounts of administrative fines are accumulated without exceeding double the maximum amount of the highest fine.
If mitigating circumstances have been determined in the decision to impose an administrative fine, the amount of the administrative fine may be reduced below its minimum, without it being less than twenty-six euros.
CHAPTER 3. - Administrative fine for decriminalized offences
Art. 8. Under the conditions laid down in this Act, an administrative fine may be imposed by the competent authority for the offences set out in the Schedule.
The amounts set by offence are included in the schedule.
Art. 9. The Navigation Police, the Maritime Information Carrefour, any authority, official or public officer who, in the performance of his or her duties, becomes aware of offences referred to in section 8 shall inform the competent authority within 14 days.
Art. 10. § 1. If the competent authority fails to conduct administrative proceedings, it shall state the reason for classification decisions without action.
If the competent authority conducts administrative proceedings, it shall summon the person by registered consignment no later than one year from the day the act was committed. The recommended shipment contains at least the following information
1 the facts for which the administrative fine procedure has been initiated;
2° the days and hours to which the person concerned has the right to consult his case;
3° the fact that he has the right to be assisted by counsel;
4° the fact that it has a period of thirty days from the first working day following the convocation to send to the competent authority a recommended consignment containing its means of defence and, if so, the request to be heard.
§ 2. Where the competent authority is seized of a request in accordance with paragraph 1er, 4°, it has 45 days, from the date of receipt of this request, to notify the interested person, by registered mail, of the date of the hearing.
These deadlines are limited to nullity of the entire administrative fine procedure.
The interested party may, by registered mail to the competent authority, request the postponement of the hearing by indicating the reason for the postponement. The competent authority shall, in such case, set a new date by registered consignment.
Art. 11. After the thirty-day period referred to in Article 10, § 1, 4°, and, if any, after the hearing of the person concerned, the competent authority shall make a decision on the facts for which the administrative fine procedure has been initiated. The competent authority shall notify the interested party of this decision by registered mail.
The decision to impose an administrative fine shall be motivated and shall state, as a matter of nullity, its amount and the possibility of appeal.
In the same decision as that in which it imposes an administrative fine, the competent authority may grant, in whole or in part, the stay of the execution of the payment of that fine. The King determines the terms of the stay to execution.
The decision has enforceable force upon the expiration of one month from the day of its notification.
The payment of the administrative fine ends the action.
Art. 12. When the administrative fine is imposed, the competent authority shall take into account the eventual recidivism.
In case of recidivism in the year following a decision to impose an administrative fine, the amounts may be doubled.
In the event of an infringement contest, the amounts of administrative fines are added without exceeding double the maximum amount of the highest fine.
If mitigating circumstances have been determined in the decision to impose an administrative fine, the amount of the administrative fine may be reduced below its minimum, without it being less than twenty-six euros.
CHAPTER 4. - General provisions
Art. 13. The King shall designate officers and persons of a public authority responsible for the search for and review of violations of the laws on navigation, their enforcement orders, and the offences set out in the Schedule.
Art. 14. No administrative fine may be imposed by the competent authority:
- where the public action relating to the same offence is extinguished, or
- against a person who was a minor at the time of the incident, or
- more than two years after the day the administrative proceedings were initiated.
Art. 15. The King sets out procedures for the collection and recovery of administrative fines.
Art. 16. The person concerned may, as a matter of foreclosure, lodge a suspensive appeal against the decision referred to in article 6 or 11, within one month of notification of that decision.
The court of first instance is final.
Without prejudice to the provisions of paragraphs 1 and 2, the provisions of the Judicial Code apply to appeal to the court of first instance.
The Brussels court is competent in respect of persons who do not reside in Belgium for offences relating to inland navigation and pleasure legislation.
The Antwerp court is competent in respect of persons who do not reside in Belgium for offences under the legislation on maritime navigation.
In case of appeal against the decision of the competent authority, the court of first instance has the same powers as the competent authority
Art. 17. Where there are serious presumptions of offences referred to in sections 3 and 8, traffic control officers designated for this purpose may prohibit the master from leaving the Belgian ports with his ship, unless a maximum amount is paid as a bank guarantee for the offences, plus additional decimals. The bank guarantee must be granted by a bank established in Belgium.
The fine imposed under a judicial decision cast as a result of tried or a transaction, as the case may be, is recovered from the bank guarantee.
Art. 18. With respect to the offences referred to in Article 3, a memorandum of understanding may be concluded between the competent King's Prosecutor and the competent authority.
This Memorandum of Understanding respects all legal provisions concerning, inter alia, procedures for offenders and cannot violate their rights.
This memorandum of understanding is communicated by means of an opinion published in French and Dutch to the Belgian Monitor.
Art. 19. Sections 53 to 55 of the Judicial Code apply to the time limits set out in this Act.
CHAPTER 5. - Amendments
Art. 20. In Article 19 of the Law of 5 June 1972 on the Safety of Navigation Buildings, as amended by the Law of 22 January 2007, the words "a fine of 50 to 5000 euros" are replaced by the words "a fine of 200 to 1,000 euros".
Art. 21. In article 21 of the same law, as amended by the law of 22 January 2007, the words "end of 26 to 300 (euro)" are replaced by the words "end of 200 to 1,000 euros".
Art. 22. Section 15 of the Act of 3 May 1999 organizing the division of powers following the integration of the maritime police, the aeronautical police and the railway police into the federal police is supplemented by a paragraph written as follows:
"For the purposes of the period referred to in paragraph 6, giving a warning or giving a time limit to be in good standing does not constitute the finding of the offence. ".
Art. 23. In Article 8 of the Act of 22 June 2016 implementing Regulation (EU) No 1177/2010 of the European Parliament and the Council of 24 November 2010 concerning the rights of passengers travelling by sea or by inland navigation and amending Regulation (EC) No 2006/2004, the following amendments are made:
1° in paragraph 1erParagraph 1erthe words "seen to section 9" are repealed;
2° in paragraph 1er, paragraph 2, the words "the competent public authority" are replaced by the words "the competent authority designated in the law of 25 December 2016 establishing administrative fines applicable in the event of violations of the laws on navigation".
CHAPTER 6. - Abrogatory provisions
Art. 24. In section 19 of the Act of 5 June 1972 on the Safety of Navigation Vessels, amended by the Act of 22 January 2007, the words "of one month to two years and" are repealed.
Art. 25. In section 21 of the Act, as amended by the Act of January 22, 2007, the following amendments are made:
1° the words "of imprisonment from eight days to three months and" are repealed;
2° the words "or one of these penalties only" are repealed.
Art. 26. In section 25 of the Act, amended by the Act of January 22, 2007, the following amendments are made:
1° in paragraph 1 the words "of one to seven days and" are repealed;
2° in paragraph 2, the words "of imprisonment from eight days to six months and" are repealed.
Art. 27. In Article 3 of the Act of 24 November 1975 approving and implementing the 1972 International Settlement Convention to Prevent Collision at Sea, annexed Regulations and Annexes made in London on 20 October 1972, the following amendments are made:
1° the words "of imprisonment from eight days to three months and" are repealed;
2° the words "or one of these penalties only" are repealed.
Art. 28. In section 5 of the Act of 8 July 1976 relating to the licence to operate inland navigation vessels and to the financing of the Institute for the carriage by batellerie, as amended by the Acts of 29 December 2010 and 8 May 2014, the words "of imprisonment from one month to two years and" and the words "or one of these penalties only" are repealed.
Art. 29. Sections 6 and 7 of the Act, as amended by the Act of 29 December 2010, are repealed.
Art. 30. In Article 4 of the Act of 20 August 1981 approving the International Convention on the Safety of Containers, and Annexes, made in Geneva on 2 December 1972, the words "of imprisonment from one month to two years and" and the words "or one of these penalties only" are repealed.
Art. 31. In section 13 of the Act of 12 July 1983 on the Measurement of Ships, as amended by the Act of 8 March 2010, the following amendments are made:
1° in paragraph 1er, the words "of one month to one year and" and the words "or one of these sentences only" are repealed;
2° in paragraph 2, the words "of imprisonment from eight days to three months and" and the words "or one of these sentences only" are repealed.
3° in paragraph 3, the words "of one to seven days' imprisonment and" are repealed.
Art. 32. In Article 14, § 3, of the Act of 21 December 1990 on the registration of ships the words "of imprisonment from eight days to three months and" and the words "or one of these penalties only" are repealed.
Art. 33. Articles 9 to 16 of the Act of 22 June 2016 implementing Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers travelling by sea or by inland navigation and amending Regulation (EC) No. 2006/2004 are repealed.
CHAPTER 7. - Final provision
Art. 34. This Act comes into force on 1er January 2017.
Given in Brussels on 25 December 2016.
PHILIPPE
By the King:
Minister of Justice,
K. GEENS
Minister of Social Affairs and Public Health,
Mr. DE BLOCK
Minister of Mobility,
Fr. BELLOT
The Secretary of State to the North Sea,
Ph. DE BACKER
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
House of Representatives (www.lachambre.be)
Documents: 54-2206.
Full report: 21-22 December 2016.

Schedule to the Act of 25 December 2016 establishing administrative fines for violations of the laws on navigation
INFRACTIONS DEPENALISE AND CORRESPONDANT MONTANTS
A. Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers travelling by sea or by inland navigation and amending Regulation (EC) No 2006/2004

Seeed to be appended to our Act of 25 December 2016 establishing administrative fines for violations of the laws on navigation
Given in Brussels on 25 December 2016.
PHILIPPE
By the King:
Minister of Justice
K. GEENS
Minister of Social Affairs and Public Health,
Mr. DE BLOCK
Minister of Mobility
Fr. BELLOT
The Secretary of State to the North Sea,
Ph. DE BACKER