I INTRODUCTION

Belgium is a federal state with a complex governmental structure. Apart from offshore wind and hydropower, the three regions (Flanders, Wallonia and the Brussels-Capital Region) are primarily responsible for renewables. Both the federal government and the regions have policies and a statutory framework in place to promote the production of electricity from renewable sources. The most important energy policy tools include priority grid access and green certificate schemes.

Because of the allocation of energy policy responsibilities, disputes occasionally arise between the federal and regional governments. Lack of cooperation, for instance, has delayed the transition from fossil fuels to clean and sustainable energy sources. However, after lengthy debate and much delay, Belgium's four energy ministers recently agreed on an 'Energy Pact'.

As a Member State of the European Union, Belgium is also subject to the binding national targets set out in the framework of the 2020 Climate and Energy Package.2 Belgium has to reach a target of 13 per cent for the share of energy from renewable sources in its gross final consumption of energy by 2020. If this target has not been reached, Belgium could be subject to sanctions imposed by the European Union. It is likely, however, that Belgium will reach the target by 2020.

Key trends in relation to renewable energy and the Belgian energy sector include:

  1. the proposal for an Energy Pact setting out a common goal to obtain security of supply, low-carbon energy generation, reduced CO2 emissions and affordable energy prices;
  2. a consolidation of the energy suppliers market due to low energy prices, with traditional fossil-fuel energy suppliers diversifying into renewables, and increased competition;
  3. a sizeable reduction in the development costs for solar and wind energy production installations due to technological developments;
  4. a reduction in the level of financial support given to new offshore wind energy installations;
  5. state-aid notification of the Flemish green certificate and cogeneration certificate schemes for reasons of legal certainty;
  6. in Flanders, the integration of the environmental permit and the urban planning permit into a 'single permit' of indefinite duration on the basis of a single application process, public inquiry and consultation procedure;
  7. in Flanders, the annulment of the 'Turteltaks', a controversial tax intended to help cover the deficit caused by green energy certificates; and
  8. in Wallonia, annulment by the Council of State of the Walloon environmental requirements for wind turbine parks, although the effects of these requirements have been maintained for another three years.

II THE YEAR IN REVIEW

2017 was a rather calm year, with few policy changes and legislative actions related to renewable energy. One of the most anticipated policy documents (the Energy Pact) was finally adopted in December 2017. This 22-page document sets out Belgian energy policy until 2050 and emphasises the need for an energy transition that takes into account environmental, economic and social efficiency, with a central role for consumers and flexibility. In 2030, the energy mix should comprise 8GW of solar energy, 4.2GW of onshore wind energy and 4GW of offshore wind energy, together with combined heat from biomass, biogas and geothermal energy. Industrial, residential and local storage and electric vehicles should yield a total of 3.5GW in storage capacity by 2030. The Energy Pact is, however, only a policy document, with general guidelines and objectives. It does not introduce concrete measures or action plans. Such measures will be introduced – in accordance with the technology and market segment – in the National Energy and Climate Plan, which should be adopted in 2019.

In 2017, the financial support system for offshore wind energy was altered.3 The system of subsidies, based on green certificates, was individualised to prevent over-subsidising. Each wind turbine park with financial close after 4 March 2017 now receives a subsidy based on its individual levelised cost of electricity. For the two most recent wind turbine parks, the levelised cost of electricity was set at €129.80/MWh (Rentel) and €124/MWh (Norther). Previously, there was a generally applicable levelised cost of electricity, set at €138/MWh for all wind turbine parks with financial close after 1 May 2014. The period of financial support was also reduced from 20 to 19 years.

One of the most notable mergers on the Belgian energy market in 2017 was the acquisition of the Belgian branch of Eni Gas & Power and Eni Wind Belgium (the third most important player on the energy market) by the Dutch supplier Eneco, which mainly invests in renewable energy.

In October 2017, Belgium notified the European Commission's state-aid department of the Flemish green certificate and cogeneration certificate schemes, for reasons of legal certainty. The Commission found that the two schemes are compatible with the EU state-aid rules and thus did not raise objections to these state-aid measures.

Until recently, a business seeking permission to construct and operate a new energy installation in Flanders was obliged to obtain both an urban planning permit and an additional environmental permit. In practice, acquiring different permits through different procedures proved to be relatively cumbersome. On 23 February 2017, the Flemish government and provinces introduced the single permit, which replaces and consolidates the urban planning permit and the environmental permit into one permit of unlimited duration.

In November 2017, the Council of State annulled the Walloon environmental requirements for wind turbines (i.e., noise levels)4 on the ground that the region's decision had been adopted without a prior environmental impact assessment, as required by Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment (formerly Directive 2001/42/EC). The Council of State submitted a request for a preliminary ruling to the Court of Justice of the European Union. The Court decided that a decision containing environmental requirements is a plan or programme for which a prior environmental impact assessment is required.5 The Council of State nonetheless decided to maintain the effects of the cancelled decision for another three years, which should give the Walloon government sufficient time to perform an environmental impact assessment and take a new decision.

III THE POLICY AND REGULATORY FRAMEWORK

i Policy background

Belgium does not have an abundant supply of renewable energy resources. Since the end of domestic energy production based on coal, the country has been heavily dependent on nuclear power and imported energy. Belgium has, however, relatively good potential for offshore wind energy and biomass.

Energy policy in Belgium is divided between the federal government and the three regions. Apart from offshore power generation in the North Sea, the regions have authority over renewables. Renewable energy policy thus varies between the three regions and at the federal level. In particular, offshore wind energy policy differs from onshore wind energy policy since the former is a federal power and the latter a regional one. The objectives of the federal and regional energy policies are aligned closely to European Union priorities, such as developing renewable power generation, promoting energy efficiency and environmental protection, ensuring a stable and affordable security of supply and guaranteeing the functioning of the internal energy market.

Belgium offers a wide array of special incentives, including quotas, investment grants, priority grid access, tax exemptions, VAT reductions and beneficial credit terms. The main policy tools at both the federal and regional levels to support renewable energy generation include priority grid access and quota obligations within a green certificate scheme. Power from renewables is given priority for both connection to and use of the transmission and distribution grids.

Under the various green certificate schemes, green certificates are issued to a producer for the amount of electricity generated. Each year, electricity suppliers and grid users are obliged to submit a certain number of green certificates to the energy regulator. If an energy supplier or grid user is unable to present the required number of certificates, a fine will be imposed. Because of this administrative sanction, green certificates have economic value and are sold by producers either directly on the market or to the transmission system operator or distribution system operator at a minimum price.

The regions increasingly require new buildings to be environmentally friendly, thus indirectly obliging contractors to install solar panels or heat pumps. In return, the regions grant subsidies for small-scale renewable energy infrastructure. Small-scale producers of renewable electricity also benefit through net metering from the difference between the amount of electricity generated and fed into the grid and the amount of electricity consumed and taken from the grid.6

Other policy tools include beneficial credit terms for investments in renewable energy projects, investment grants, tax exemptions, VAT reductions, training programmes for installers of renewables and awareness campaigns. The regions offer investment and tax support for research and development programmes, thus encouraging technological development.

ii The regulatory framework

As a federal state, Belgium is divided into regions and communities. The various areas of competence with regard to energy are divided between the federal level and the regions. The powers of the federal level include security of supply, nuclear power, large-scale infrastructure for storage, transport and generation of energy, and transmission tariffs. The federal level is also responsible for offshore electricity production. The three regions – Flanders, Wallonia and the Brussels-Capital Region – are responsible for the distribution of electricity (voltage below or equal to 70kV) and gas, renewable energy sources, energy efficiency and distribution tariffs, as well as onshore electricity production.

With regard to renewable energy, areas of competence are subsequently divided between the federal and regional parliaments (the legislative branch), the responsible minister and his or her cabinet and administration7 (the executive branch), and the independent regulatory authorities. The independent regulatory authorities (IRAs) are the Commission for Electricity and Gas Regulation (CREG) at the federal level, the Flemish Regulator for Electricity and Gas (VREG) for Flanders, the Walloon Commission for Energy (CWaPE) for Wallonia, and the Brussels Regulator for Electricity and Gas (BRUGEL) for Brussels.

The respective parliaments adopt laws (at the federal level), decrees (in Flanders and Wallonia) or ordinances (in the Brussels-Capital Region). The government and ministers take executive decisions. The IRAs set tariff methodologies and issue Technical Rules. The following are the key sources of law and regulation.

  1. At the federal level (only regarding offshore energy): the Electricity Act of 29 April 1999; the Royal Decree of 20 December 2000 on concessions; the Royal Decree of 16 July 2002 on (offshore) renewable energy sources; the Royal Decree of 20 March 2014 on maritime spatial planning; the Royal Decree of 30 July 2013 on guarantees of origin; the Royal Decree of 7 September 2003 on a maritime environmental permit; the Royal Decree of 12 March 2002 on the power cable permit; the Royal Decree of 19 December 2002 on Technical Rules; and decisions of the CREG8 – for example, on the Nemo Link tariff methodology (offshore interconnector).9
  2. For Flanders; the Energy Decree of 8 May 2009; the Energy Decision of 19 November 2001; decisions of the Flemish government or minister; and VREG's Technical Rules for Electricity Distribution of 5 May 2015.
  3. For Wallonia: the Walloon Electricity Decree of 12 April 2001; the decision of the Walloon government of 30 November 2006 on the promotion of renewable energy, and the decision of the Walloon government of 21 March 2002 on the electricity suppliers' permit; and CWaPE's Technical Rules for Electricity Distribution of 3 March 2011.
  4. For Brussels: the Electricity Ordinance of 19 July 2001; the decision of the Brussels government of 17 December 2015 on the promotion of green electricity; and BRUGEL's Technical Rules for Electricity Distribution of 23 May 2014.

Renewable energy sources include wind power, solar power, geothermal power, hydropower, tidal power, biomass, biogas and liquid biofuels. Energy is qualified as green or renewable based on guarantees of origin, which provide proof of the origin of the electricity produced. These guarantees are an instrument used to track and prove to consumers that a given share of the electricity supplied comes from renewable generation. Guarantees of origin are granted by the regulatory authority to producers of renewable electricity and held in a database administered by the regulator. Electricity suppliers purchase guarantees of origin and can only describe the electricity they sell as green or renewable if they can provide the correct number of guarantees. Suppliers can then redeem the guarantees of origin with the regulatory authorities.

The federal rules on the integration of renewable energy into the electricity grid can be found in the Royal Decree of 19 December 2002 on Technical Rules. Article 319 of the Technical Rules states that the transmission system operator (TSO) must give priority to production installations that use renewable energy sources and combined heat, taking into account the security of supply. Specifically, Article 79 of the Technical Rules states that the TSO – if possible and taking into account security of supply – must give priority to the request for an orientation study that concerns production units using renewable energy sources and combined heat (with a nominal volume of less than or equal to 25MW). Articles 94 and 100 of the Technical Rules state that when the TSO investigates and reviews a connection request, it must give priority, if possible, to requests that concern production units using renewable energy sources and combined heat (with a nominal volume of less than or equal to 25MW). Article 265 of the Technical Rules states that the TSO must take into account the priority afforded to renewable energy and combined heat when managing congestion; taking into account, however, measures relating to grid safety, reliability and efficiency. Article 8, Section 1, Section 3, No. 5, b of the Electricity Act refers to the priority dispatching of electricity generated from renewable sources or combined heat.

In Flanders, the priority of renewable energy and combined heat is mentioned in Article 4.2.1.2.7 of the Energy Decree and Article 6.4.14 of the Energy Decision. VREG's Technical Rules of 5 May 2015 also give – if possible and taking into account security of supply – priority to requests for orientation studies and the review of connection requests (Article III.3.3.20(4) and Article III.3.3.24(1)). When drafting a detailed study or in the case of accompanying capacity reservations, there is no priority (Article III.3.3.24(2)). Article IV.5.3.1(1) states that the DSO shall give priority to combined heat units and production units that use renewable energy, in the event of congestion.

In Wallonia, the priority of renewable energy and combined heat is mentioned in Article 34(4)(a) and (h) of the Walloon Electricity Decree. CWAPE's Technical Rules of 3 March 2011 give – compared to other requests – priority to requests for orientation studies that concern production units using renewable energy or combined heat or that produce electricity from waste or recovery from industrial processes (Article 72(1)). The CWaPE Technical Rules also give – compared to other requests – priority to the investigation and review of connection requests (Article 81(1)). Priority is also given to capacity reservations (Article 81(2)). Finally, Article 90(2) of the Technical Rules states that the DSO shall give priority, compared to other non-urgent works, to the connection of combined heat installations, production units using renewable energy and units producing electricity from waste or recovery from industrial processes.

In Brussels, the priority of renewable energy and combined heat is mentioned in Article 12(1)(9) of the Brussels Electricity Ordinance. BRUGEL's Technical Rules of 23 May 2014 give – if possible and taking into account security of supply – priority to requests for orientation studies that concern production units using renewable energy (Article 98). The Technical Rules also give – if possible and taking into account security of supply – priority to connection requests for production units using renewable energy when drafting a detailed study (Article 104). Capacity reservations also benefit from priority (Article 104). Article 112(2) of the Technical Rules states that the DSO shall give priority to the connection of production units that use renewable energy above other non-urgent works. Finally, Article 181 states that the DSO shall give priority to compensating energy losses from renewable energy production.

The construction and operation of an onshore renewable energy project are subject to regional urban planning and environmental laws and regulations. Permits for both the urban planning aspects and the environmental aspects of the project will be necessary, and must be acquired prior to the start of construction works. Both these aspects have been integrated in one procedure in Flanders and Wallonia, resulting in one single permit. It is still necessary to apply for both an urban planning permit and an environmental permit in Brussels.

Depending on the nature and size of the project, either the municipality, the province or the regional government will be competent to grant the permit. Prior to the submission of the permit application, an environmental impact assessment could be required, depending on the specific project. Following submission of the permit application, the competent authority will check whether the application is complete and admissible. This check takes roughly between 20 and 30 days. Following this check, a public consultation and enquiry will be organised if necessary. The competent authority will take a decision on the permit application within a time frame of 45 or 160 days, depending on the region and the procedure. The authority may impose certain urban planning or environmental conditions on the renewable energy facility.

Depending on the net capacity of an onshore renewable energy facility, an additional federal energy production permit may be required.10 Such a permit must be obtained for the construction of a new facility with a net capacity exceeding 25MW and is also required when a modification to or reconstruction of an existing facility is not subject to another type of permit yet results in an increase in the net capacity by more than 10 per cent or causes the net capacity to exceed 25MW. This type of permit is issued by the federal energy minister, further to the opinion of the CREG.

A federal energy production permit is not required for an onshore renewable energy facility with a capacity of less than 25MW, although construction must be notified to the federal energy minister and the CREG.

Certain onshore renewable energy facilities are subject to specific statutory obligations. For instance, biomass facilities must meet the requirements of the waste legislation. Circulars set out the criteria by which public authorities assess permit applications for renewable energy projects (such as onshore wind turbines and biomass facilities). An authorisation from the local authorities to block a public road may also be required (e.g., to transport a wind turbine).

The construction and operation of an offshore wind farm require a domain concession, an authorisation to place underwater cables and a maritime environmental permit. The project developer submits an application for a domain concession to the Federal Public Service for Energy, which issues an opinion to the federal energy minister, who is responsible for granting the concession.11 The authorisation to place underwater cables is also issued by the federal energy minister, based on the opinion of the Federal Public Service for Energy.12 To obtain a maritime environmental permit, the project developer must submit an environmental impact study to the Management Unit of North Sea Mathematical Models (MUMM) of the Federal Public Service for Health and the Environment. MUMM then prepares an environmental impact assessment, followed by a public consultation. Based on MUMM's opinion, the North Sea minister will take a decision on the permit application.13 Depending on the complexity of the project, it can take six to eight months from submission of the application to obtain a final decision from the minister.

An important innovation is the construction of the Modular Offshore Grid (MOG) in the Belgian North Sea. The MOG will provide an offshore electricity hub for wind farms, allowing offshore wind farms to connect their underwater cables directly to the MOG instead of onto the onshore grid located much further away. The MOG should be fully operational by 2020.

Renewable energy projects may give rise to environmental concerns relating to endangered or protected species and natural conservation areas. The presence of civilian and military airports further limits the development of wind turbine installations in Belgium. Finally, as Belgium is densely populated, local residents often oppose the construction of onshore wind parks.

IV RENEWABLE ENERGY PROJECT DEVELOPMENT

i Project finance transaction structures

The ownership structure used in renewable energy projects depends on the nature and location of the project. For instance, onshore photovoltaic installations are often placed on the rooftops of large buildings using a right to build. Ownership is thus split between the owner of the solar panels and the owner of the building. Such photovoltaic (PV) installations are increasingly leased. Onshore wind turbines are often constructed on the property of a third party via a right to build granted to the operator of the wind turbines.

For offshore wind turbines or onshore wind turbines in port territory, domain concessions are used as such turbines are constructed in the public domain. The public domain is a concept of Belgian law that refers to goods that are used by the general public or that are allocated to services in the general interest. Ownership of goods in the public domain cannot be transferred. In addition, no rights in rem (such as security interests) can be granted in such goods. However, a public authority can grant temporary rights to private entities over goods in the public domain pursuant to a concession agreement. A domain concession is an administrative contract whereby a public authority grants a private party the right, for a limited period and in return for a contractually defined fee, to make private use of a public good.

In general, for the construction of a (large-scale) renewable energy project, such as an offshore wind park, a special purpose vehicle (SPV) is set up. The SPV enters into various agreements with contractors, which can be executed by subcontractors. The SPV is typically financed with equity and quasi-equity provided by the sponsors or shareholders (15 per cent to 30 per cent) and with debt (70 per cent to 85 per cent). Within the security package, the SPV typically requires the contractor's parent company to guarantee execution of the main contract with the contractor and a bank guarantee or letter of credit from a rated financial institution to be provided by the contractor itself. Further, the liability of the contractor will be capped as a percentage of the construction price or maintenance fee.

The main transaction documents needed for renewable energy project finance include (1) finance documentation, (2) project documentation and (3) equity documentation. Finance documentation includes the credit agreement, security documents, inter-creditor agreement if multiple funders are involved, hedging agreements if an interest-rate swap is taken, and sometimes a separate account bank agreement. Project documentation includes the construction agreement (i.e., the design and build or engineering, procurement, construction and installation (EPCI) agreements), the turbine supply agreement, maintenance (and operation) agreement, power purchase agreement, certificates purchase agreement, grid connection agreement, domain concession and ancillary right-to-build agreements, as well as any other service agreement. Finally, equity documentation comprises the constitutional documents of the SPV (such as by-laws), equity subscription agreement and, if applicable, shareholder loan agreements and the shareholder agreement.

In Belgium, there are no unique features of renewables project financing per se. At the regulatory level, however, the use of domain concessions and ancillary securities on those domain concessions for offshore wind parks is rather unique.

The typical tenor for term debt for renewable energy projects is linked to the duration of the subsidies under the relevant support scheme (which differs from one region to another). The project financiers typically request security by way of a possessory pledge of the SPV's shares, its bank accounts (or more precisely, a pledge of the pledgor's right to repayment of the credit balance of the bank account upon request), contractual claims and receivables, business and movable assets or intellectual property. They can also request security by way of a mortgage on the SPV's immovable property.

The principal participants in project finance transactions are the SPV of the renewable energy project, the sponsors or shareholders of the SPV, the lenders to the SPV, the EPCI contractors, the maintenance contractors, the guarantors of these contractors, the power purchaser (generally the energy supplier), the green certificate purchaser (generally the energy supplier) and the transmission or distribution system operators.

The European Investment Bank, commercial banks, certain insurance companies, traditional power producers and export credit agencies have been instrumental in financing the first renewable energy deals in Belgium. Today, development banks, commercial banks, leasing companies, pension funds, infrastructure funds, public investment vehicles and other institutional investors all participate in renewable energy project finance transactions.

The renewable energy generated is purchased by utilities companies, industrial companies, residential consumers and, increasingly, public authorities.

ii Distributed and residential renewable energy

Distributed and residential renewable energy is on the rise. The distribution systems range from small-scale solutions, such as PV panels for residential households, to production units used to deliver power to large manufacturing facilities.

Cogeneration plants (combined heat and power generation) are mainly used for heavily energy-intensive industries. Such plants are operated jointly by production facilities (factories) and power suppliers. A financial support mechanism similar to the green certificates is available for the power producers.

On-site distribution systems form an exception to the distribution system operator (DSO) monopoly, and individual permission from the authorities is therefore required. In Flanders, different rules apply to direct lines, closed distribution systems and private distribution systems. For direct lines, permission of the regulator (VREG) is only necessary if the line extends beyond its own site (Article 4.5.1 Flemish Energy Decree). A closed distribution system, which is a system that distributes electricity within a geographically confined, industrial, commercial or shared-services site and does not supply household customers, must be notified to the VREG (Article 4.6.1 Flemish Energy Decree). Private distribution systems are in principle forbidden (Article 4.7.1 Flemish Energy Decree), but an exception is made for charging points for electric vehicles and where the distribution of electricity is ancillary to the provision of another service (e.g., student dorms).

In Brussels, a direct line can only be created if the energy minister has granted an individual permit (Article 30 Energy Ordinance). Closed distribution systems are treated as private distribution systems. Private distribution systems must be approved by the DSO (Article 34 BRUGEL Technical Rules of 23 May 2014).

For the creation of a direct line in Wallonia, prior approval of the regulator (CWAPE) is necessary (Article 29 Walloon Energy Decree). Closed distribution systems also require a permit from CWAPE (Article 15 ter Walloon Energy Decree). Private distribution systems are in principle prohibited, except for temporary consumption (maximum of 12 weeks per year), where the distribution of electricity is ancillary to a service or in a single office building (Article 15 bis Walloon Energy Decree).

The user of a distributed energy system and the owner of the production unit can be the same. However, lease agreements are also common. In this case, a leasing company will rent a rooftop or land for the installation of PV panels. The leasing company installs and maintains the installation. Consumers pay a monthly fee for the energy supplied by the installation. Both classic energy companies and banks offer leasing solutions.

Recently, more heating networks using deep geothermal heat have been constructed. The owner of the installation is often the same as the DSO. No permit or prior approval is required for the supply of heat. In Flanders, public service requirements for the suppliers of heat have been already established, but these requirements have not entered into force yet (Article 4/1.3.1 et seq. Flemish Energy Decree).

iii Non-project finance development

Financing based on the balance sheet of the sponsor is relatively rare and only available to larger energy companies (such as ENGIE Electrabel, EDF and Eneco). Developers obtain financing based on their balance sheet and their capacity to reimburse the lender or financier. This is generally cheaper and provides more freedom for the developer, since no other parties are involved. The lender can still request security and guarantees, such as a mortgage, to ensure that it is paid first with the proceeds from the sale of the project in the event of the borrower's insolvency.

V RENEWABLE ENERGY MANUFACTURING

The manufacturing of renewable energy components is less common in Belgium. A production plant for wind turbines is located in Ostend, at the Belgian coast. This is a joint venture between Mitsubishi Heavy Industries and Vestas. They have produced, installed and are maintaining the Belwind, Northwind and Nobelwind wind parks in the Belgian North Sea. PV panels are produced in Belgium but on a small scale (for instance, by Finale 24 in Eupen).

A tax deduction is available for investment in research and development of new products and technologies that do not have a negative impact on the environment or that try to limit environmental impact (Articles 68 to 77 and 201 Tax Code). The tax deduction is granted by the federal tax authorities, but the 'environmentally friendly' nature of the investment is assessed by the regional authorities. In lieu of a deduction, a tax credit can be taken instead.

In Belgium, there are no specific tariff or trade policies regarding renewable energy equipment. Trade and tariff policies are governed by the European Union, which determines import and export tariffs and implements trade policy for goods originating from outside the European Economic Area. Once goods enter the European Economic Area, they can move freely on the internal market.

VI CONCLUSIONS AND OUTLOOK

The energy landscape in Belgium is currently in a transitional phase. Important steps have been taken; for example, the development of the modular offshore energy grid and the recent decision to allow the construction of a new wind park in the North Sea. In general, however, the Belgian economy is still heavily reliant on fossil fuels and nuclear power. By adopting the Energy Pact, the different governments of the federal state of Belgium have set out the framework allowing Belgium to transition to a low-carbon society in 2050. Key principles are the security of supply, low-carbon energy generation, reduced CO2 emissions and affordable energy prices. These seem ambitious goals. However, as we stated above, the Energy Pact is merely a policy document, and does not introduce concrete measures or action plans. Such measures will be introduced – in accordance with the particular technology and relevant market segment – in the National Energy and Climate Plan, which should be adopted in 2019. Challenges include energy flexibility and storage, the phase-out of nuclear power and achieving the targets for renewable energy and energy efficiency set out by the EU.


Footnotes

1 Laura De Deyne, Roeland Van Cleemput and Vera Van Thuyne are associates at NautaDutilh.

2 The 2020 package comprises binding legislation to ensure the EU meets its climate and energy targets for the year 2020. The goal is to cut greenhouse gas emissions by 20 per cent from 1990 levels, increase the share of EU energy from renewables to 20 per cent and improve energy efficiency by 20 per cent (https://ec.europa.eu/clima/policies/strategies/2020_en).

3 Royal Decree of 9 February 2017, published in the Belgian State Gazette on 22 February 2017.

4 Council of State, 16 November 2017, No. 239.886.

5 CJEU, 27 October 2016, C-290/15, ECLI:EU:C:2016:816.

6 Although in Flanders, for example, there is a capacity tariff.

7 In Flanders, this is the Flemish Energy Agency.

10 Act of 29 April 1999 on the organisation of the electricity market, Belgian State Gazette 11 May 1999; Royal Decree of 11 October 2000 on the grant of individual permits for the construction of installations for the production of electricity, Belgian State Gazette 1 November 2000.

11 Royal Decree of 20 December 200 on the conditions and procedure for the award of domain concessions, Belgian State Gazette 30 December 2000.

12 Act of 13 June 1969 on the exploration and operation of non-living resources in the territorial sea and continental shelf, Belgian State Gazette 8 October 1969; Royal Decree of 12 March 2002 on the rules for the laying of underwater cables, Belgian State Gazette 9 May 2002.

13 Act of 20 January 1999 on the protection of the marine environment, Belgian State Gazette 12 March 1999; Royal Decree of 7 September 2003 on the procedure for licensing and authorising of activity, Belgian State Gazette 9 September 2003.