SUMMARY 

The Parliamentary Act on taxation of “excess profits” entered into force on 22^nd December 2022 (accessible here) and modified the electricity act of 29^th April 1999.

As a reminder, this Act is based on the EU regulation 2022/1854 of 6^th October 2022 on an emergency intervention to address high energy prices (accessible here). This Regulation allows Member States, under “National Crisis Measures”, to “maintain or introduce measures which further limit the market revenues” under its article 8.1(a).

As mandated by the Belgian Act, the CREG – Belgian NRA –, decided on the declaration specifics that the tax debtor shall fill in (decision of 28^th February 2023 accessible here). This decision was related to the first taxation period (01/08/2022-31/12/2022). Now the CREG issued its decision regarding the second taxation period (01/01/2023-30/06/2023) (decision of 28^th February 2023 accessible here).

Despite the many actions recently filed with the Constitutional Court, debtors shall declare their revenues.

Be careful that debtors shall have registered by 1^st September 2023 on the platform (accessible here) and introduced the revenues declaration at the latest by 7^th September 2023 (even if the tax is assumed to be zero).

We expose hereunder the principles of the legislation together with guidance from the CREG decision.

1. Scope

The Act targets power plants, and notably wind turbines of +1MW located in Belgium, that have injected on the grid during the period from 1^st August 2022 and 30^th June 2023 (see art. 22ter §1 6° of the Belgian electricity act).

The debtor of the tax is the person who injects electricity on the grid, i.e. the producer (SPV as the case may be).

2. Taxation period

The first taxation period went from 1^st August 2022 to 31^st December 2022. The second period from 1^st January 2023 to 30^th June 2023 (see art. 22ter §1 of the Act).

For this second period a new CREG decision has been issued on 6^th July 2023.

As a heads up, one should note that, should the duration of the EU regulation be extended or the level of the cap amended, the Belgian act may be amended accordingly via royal decree. The competent minister has already indicated that the tax shall be prolonged should the electricity prices remain so high.^[1]

3. Amount of the tax

The amount of the tax is 100% of the remuneration above the cap (so-called ‘excess profits’) (see art. 22ter §3 of the Act).

It is important to note that this tax is a deductible cost from the debtor point of view, this must be shared with the client’s accountant to avoid a double taxation.

4. Cap

The revenues are capped at 130 €/MWh with the exception for electricity produced by installations where the level of support depends on the electricity prices evolution. In this case, the cap is the LCOE (Levelized Cost of Energy) + 50 €/MWh with a minimum of 130 €/MWh and a maximum of 180 €/MWh (see art. 22ter §4 of the Act).

> Which LCOE is used as a reference?

The Act refers to the LCOE as determined in the GC reservation documents (see art. 3 of the Act). The CREG decision however determines the LCOE and provides that the LCOE to select is the year of the reservation application that determines the level of production aid to which the installation is entitled. The LCOE must therefore be defined according to the year in which the reservation is requested. For example, in Wallonia, if a project developer submits a reservation request on 31^st December 2020, the request is accepted in February 2021 and the green certificates are allocated from the 2021 envelope, the production aid rates and reference parameters in force for the year 2020 will be applied.

See below for instance the LCOE for wind turbines.

5. Revenues

The remuneration considered consists of the market revenues for the sale of electricity, to the exclusion of any aid or subsidy granted by a public authority and calculated per transaction (see art. 22ter§5 of Act). Hence, green certificates and label of guarantee of origin (LGOs) are not considered into the revenues’ computation.

For the purpose of determining the revenues there are 6 assumptions defined in the Act. The CREG decision provides a useful scheme to determine the applicable assumption on page 15.

6. Determination of the tax

Based on the revenues declaration and provided documents, the CREG will make a tax proposal for the first period by 30^th September 2023 at the latest, and by 31^st December 2023 at the latest for the second period. This proposal will then be sent to the Federal Ministry of Economy (SPF Economie). The SPF Economie will then issue the payment request within 15 days and the tax is be paid within 3 months.

Do not hesitate to reach out to us if you need assistance in the impact assessment or negotiations regarding mitigation measures (e.g. PPA).

Arthur Jamar de Bolsée

Lawyer

arthur.jamar@moov.law

[1] Projet de loi modifiant la loi du 29 avril 1999 relative à l’organisation du marché de l’électricité et introduisant un plafond sur les recettes issues du marché des producteurs d’électricité, rapport 14 December 2022, DOC 55 3042/003, p. 25.