14 September 2018

On 6 July 2018, the Flemish Government finally adopted a draft Decree amending the Energy Decree of 8 May 2009. The Flemish energy market regulator (VREG) and the legislation section of the Council of State had already provided their opinions on a preliminary draft of the decree on 4 May 2018 and 26 June 2018 respectively. The draft Decree, which amends the rules for direct electricity and gas lines, is expected to be adopted by the Flemish Parliament by the end of this year. 

Direct electricity/gas line on one's "own site"

The draft Decree confirms that the construction and management of a direct electricity/gas line on one's own site is always allowed. The definition of "own site" remains unchanged, except that it now also refers to long leaseholders ("erpachter").  Hence, "own site" will be defined as "the cadastral parcel or the subsequent cadastral parcels of the same natural or legal person as owner, long leaseholder, building lessee or concessionaire".
A new feature in the draft Decree is the introduction of a notification obligation. The notification concerns the commissioning and location of the direct electricity/gas line. It is submitted by the direct electricity/gas line operator to the grid system operator or, in the case of independent functioning ("eilandwerking"), to VREG. 

Direct electricity/gas line outside one's own site

The construction and management of a direct electricity/gas line outside one's own site requires, as before, prior authorisation from the VREG. The procedure to be followed has been more clearly defined in the draft Decree.  
Moreover, VREG can only reject the application in the following exhaustively listed cases:

  • When installations behind different access points are connected;
  • When the rights of the clients are not guaranteed;
  • When the conditions provided for by the Flemish Government are not satisfied; or
  • When the grid security of the grid system operator is demonstrably put in danger.

The Flemish Government also requires  information about the authorised direct electricity/gas lines to be published on the website of the VREG. 

New tax on the operation of a direct electricity line outside one's own site

With these amendments, the Flemish Government also wishes to change the taxation on direct electricity lines. In Title XIV of the Energy Decree, a new Chapter III is added, which provides for a tax on the operation of a direct electricity line. This tax only covers authorised direct electricity lines which are outside the site; it does not affect direct gas lines. 

The tax is calculated on the quantity of electric power in MWh which corresponds to the quantity of power annually injected into the direct line. The tax is payable by  the operator of the direct line. The tax rates are:

  • for a direct line on low voltage (a nominal level of voltage of 1,000 V or lower): EUR 53.86 per injected megawatt hour.
  • for a direct line on medium voltage (a nominal level of voltage of more than 1,000 V and lower than 30 kV): EUR 5.95 per injected megawatt hour.
  • for a direct line on high voltage or functioning independently (a nominal level of voltage of 30 kV or higher): EUR 0.36 per injected megawatt hour.

The procedure to allow direct electricity/gas lines outside one's own site is thus clearer, with a limitative enumeration of situations where the installation of a direct electricity/gas line will be impossible in any circumstances. It is, however, uncertain whether in practice the proposed amendments will lead to an increase in the construction of direct electricity/gas lines outside one's own site.