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Belgische Federatie der Brandstoffenhandelaars vzw and Others and Lamine v. Flemish Government - decision

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On October 22, 2021, the Region of Flanders adopted the Decree "amending the Energy Decree of 8 May 2009, which prohibits the installation or replacement of a fuel oil boiler." This Decree introduced a ban from 1 January 2022 on the installation of fuel oil boilers in new buildings. From that date, an oil boiler may no longer be installed or replaced by another oil boiler in existing buildings, unless there is no natural gas network in the adjacent street. The non-profit association "Belgian Federation of Fuel Traders," four fuel oil suppliers, and a private individual who heats their home with a fuel oil boiler jointly sought the annulment of this Decree before the Belgian Constitutional Court (request no. 147/2022).

The complainants alleged that (i) the Region of Flanders exceeded the limits of its competences (in violation of the complex distribution of competences in Belgium as a federal State), (ii) that the Decree discriminates against fuel oil boilers and hinders free trade and freedom of enterprise, and (iii) that the Decree discriminates against fuel oil boiler owners depending on whether they live in a street where a natural gas network is available. The Constitutional Court rejected all three grounds for annulment in its Judgment of 10 November 2022.

As to the first ground for annulment, the Court noted that the measure at issue did not, as was argued by the complainants, have "a market-exclusive effect" and, therefore, did not fall within the (exclusive) competence of the Federal Government. 

With regards to the second ground for annulment, the Court found that the difference of treatment created by the measure at issue pursued a legitimate objective of public interest, namely, environmental and climate protection. It referred to a preliminary scientific study conducted by the Flemish legislator, which showed that in 2019 fuel oil in the Flemish Region corresponded to a share of 35% in the greenhouse gas emissions from buildings and a share of 10% in greenhouse gas emissions not covered by the European emissions trading system. Furthermore, this scientific study showed that the phasing out of fuel oil boilers could make a significant contribution to Flemish emission reduction in the short and long term and that the emission factor for fuel oil is considerably higher than for natural gas, propane, and butane gas. Therefore, the Court considered that the legislator could decide that a mere incentive through premiums and awareness-raising would not suffice and opt to phase out only fuel oil boilers as a first step. 

Finally, the Court also rejected the third ground for annulment because the prohibition in principle on the installation and replacement of fuel oil boilers has positive effects on the reduction of greenhouse gas emissions and the protection of the soil, and the legislator has taken into account the impact of this ban on owners of existing installations by setting up a partial phase-out, focusing the ban on the most polluting heating installations, and giving owners of fuel oil boilers the possibility to switch to natural gas, thus offering them a viable alternative.

As a consequence, the request for annulment was rejected.

Belgische Federatie der Brandstoffenhandelaars vzw and Others and Lamine v. Flemish Government

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

This sector involves the wholesale and retail selling of goods.

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Actions to adapt human health, healthcare systems and well-being to climate change.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Actions or measures to adapt freshwater systems to climate change.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Actions to adapt and increase the resilience of rural and urban infrastructure and settlements to climate change.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Production of electricity and heat from solar irradiation.

This sector involves the distribution, treatment, and conservation of water resources.

A loan is a policy instrument where funds are provided to a borrower with the expectation of repaying the principal plus interest.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Geohazards are adverse geological phenomenon's that are capable of causing widespread damage or loss to property, life and the environment, such as earthquakes, volcano eruptions and tsunamis. Climate change can increase the frequency and severity of some geohazards, such as landslides, and soil erosion.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Belgische Federatie der Brandstoffenhandelaars vzw and Others and Lamine v. Flemish Government - decision

Target

Policy instrument

Risk

Impacted group

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance