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

Belgium

Jurisdiction: Belgian Constitutional Court

Side A: Belgische Federatie der Brandstoffenhandelaars vzw and Others and Lamine (Individual ngo)

Side B: Flemish Government (Government)

Core objectives: Whether the court should annul the Flemish decree of 22 October 2021, the amendment of "the Energy Decree of 8 May 2009, which prohibits the installation or replacement of a fuel oil boiler."

Summary

On 22 October 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.

Belgium

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

Summary

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