Materials Decree
23 DECEMBER 2011. - Decree on the sustainable management of material cycles and waste

Article 1. This Decree governs a regional matter.

Article 2. This Decree is a partial transposition of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives.

Article 3. Translation not available

Article 4. Translation not available

Article 4/1.

The procedures imposed in and by virtue of this decree can be implemented electronically in whole or in part, in accordance with the rules specified by the Government of Flanders.


CHAPTER 2.
General provisions on the management of material cycles and waste


Article 5.

With a view to the attainment of the objectives mentioned in Article 4, the Government of Flanders may indicate materials and determine conditions for their use or consumption.

 

The Government of Flanders may, in accordance with the objectives mentioned in Article 4, lay down more specific rules for certain materials to guarantee their traceability, their processing in accordance with Article 9, paragraph 1, and their lawful use.


Article 6.

§ 1.

Natural and legal persons who manage waste shall keep a chronological waste register which shall include a record of the quantity supplied and disposed of, the nature, origin and, if applicable, destination, frequency of collection, mode of transport and treatment of the waste collected, picked up, transported, disposed of or recovered. The Government of Flanders shall lay down more specific rules with respect to the content and the modalities of this waste register. The Government of Flanders may release groups of natural and legal persons from this obligation. Without prejudice to the provisions of the Decree of 25 April 2014 on the environmental licence, the Government of Flanders can allow derogations from the content and conditions of the waste register during individual assessments of activities that are subject to authorisation or notification, as mentioned in Article 11.

 

Natural and legal persons who manage waste shall report certain information concerning the waste collected, picked up, disposed of or recovered to OVAM. The Government of Flanders can stipulate that OVAM selects natural and legal persons to report information. The Government of Flanders shall determine what information must be reported and in what manner this is to take place.

 

§ 2.

The Government of Flanders may determine that when being transported, waste must be accompanied by an identification form, whether or not in electronic form.

 

§ 3.

The Government of Flanders may determine that materials registers must be kept for specific materials with a view to obtaining information on the efficient and legitimate use of materials in accordance with the objective mentioned in Article 4. These registers may refer to amounts of incoming and outgoing material flows and their origin and destination. The Government of Flanders may lay down more specific rules for this.

 

The Government of Flanders can stipulate that OVAM select natural and legal persons to report information from the materials register. The Government of Flanders shall determine what information must be reported and in what manner this is to take place. 


Article 7.

The Government of Flanders may define further rules for the sampling and analysis of materials.

 

OVAM may arrange to have analyses of waste and soil samples carried out at laboratories recognised by the Government of Flanders or accredited according to applicable international standards. Laboratories shall be recognised by the Government of Flanders in accordance with the provisions of Title V, Chapter 6 of the Decree of 5 April 1995 concerning general provisions relating to environmental policy and its implementing orders.


Article 8.

§ 1.

The measures mentioned in Article 4, paragraph 3 are to encourage the options that deliver the best overall outcome for the environment and health. This may mean that when defining measures for certain materials, it may be necessary to deviate from the hierarchy mentioned in Article 4, paragraph 3, if this is justified based on life cycle thinking.

 

§ 2.

The Government of Flanders shall determine, following advice from OVAM, when the derogations mentioned in paragraph 1 are justified. In doing so, it shall take into account the principles mentioned in Article 1.2.1, paragraph 2 of the Decree of 5 April 1995 concerning general provisions relating to environmental policy, the technical and economic feasibility, the protection of resources, the overall impacts on the environment and human health and in the economic and social sphere, the objectives mentioned in Article 4 and the applicable European requirements.

 

The advice of OVAM mentioned in subparagraph 1 shall contain the basic principles, preconditions and methods used to come to a desired option based on life cycle thinking.

 

For the purposes of the advice mentioned in subparagraph 1, and for the purposes of defining the basic principles, preconditions and methods relating to life cycle thinking, a consultation platform shall be set up in accordance with Article 19.

 

If the results of scientific studies are used as a basis for this advice, then those studies are to have been carried out or verified by an independent party.

 

§ 3.

If a derogation in accordance with paragraph 1 has been granted, the Government of Flanders may reconsider this derogation following advice from OVAM and in accordance with paragraph 2, on the basis of changed technical, economic or social circumstances or new insights into the effects on the environment and health.


Article 9. Translation not available

Article 10. Translation not available

Article 11.

§ 1.

The disposal of waste, and any preparatory operations preceding such disposal, shall be subject to a licence obligation.

 

The recovery of waste, and any preparatory operations preceding such recovery, shall be subject to a licence or notification obligation.

 

The Government of Flanders may subject the use of materials to a licence or notification obligation in accordance with the objectives mentioned in Article 4.

 

§ 2.

The provisions of the Decree of 25 April 2014 on the environmental licence shall apply to the licences and notifications mentioned in paragraph 1.

 

The Government of Flanders may issue sectoral conditions for the activities receipt mentioned in paragraph 1.

 

§ 3.

Without prejudice to the application of the matters governed by the Decree of 25 April 2014 on the environmental licence, the environmental licences mentioned in paragraph 1 may only be granted if they do not conflict with the provisions of this Decree, its implementing orders or its implementation plans.

 

Without prejudice to the application of the matters governed by the Decree of 25 April 2014 on the environmental licence, when granting the environmental licences mentioned in paragraph 1, conditions may be laid down relating to:

the type and amount of waste and materials that can be processed or used;

technical and other provisions that apply to the location in question;

safety and precautionary measures to be taken; 

the way in which waste is processed or the efficiency with which materials are consumed;

control and monitoring measures;

the waste and materials resulting from the treatment or use, and any limitations of use there may be;

provisions relating to closure and after-care, insofar as these are necessary.

 

The Government of Flanders may define further rules relating to the conditions stated in subparagraph 2.


Article 12.

§ 1.

It is forbidden to leave wastes behind or manage them in violation of the requirements contained in this Decree or its implementing orders.

 

§ 2.

It is forbidden to use or consume materials in violation of the requirements contained in this Decree or its implementing orders.

 

§ 3.

Natural or legal persons who manage waste are under the obligation to take all measures which can reasonably be taken to prevent danger to the health of persons or the environment, in particular risks to water, air, soil, plants and animals, noise or odour nuisance, damage to the countryside or places of special interest, or reduce this danger to the extent possible.

 

The Government of Flanders may specify these measures further.

 

§ 4.
The natural or legal person who manages asbestos-containing materials is obliged to take all measures that can reasonably be taken to prevent, or to limit as much as possible the danger to human health or the environment, in particular the risk to water, air and soil. 


Material suspected of containing asbestos is regarded as material containing asbestos unless the absence of asbestos can be demonstrated with certainty on the basis of valid sampling and analysis. Material suspected of containing asbestos is understood to mean: material that may contain asbestos on the basis of prior knowledge and an assessment with the naked eye. 


The Government of Flanders may describe the measures stated in the first paragraph in more detail.
 


Article 13.

§ 1.

Enterprises and facilities that are professionally engaged in the collection or transport of waste, waste brokers and traders, as well as enterprises and facilities that process waste and have a notification obligation in accordance with Article 11, shall be included in a register.

 

The Government of Flanders may define further rules concerning the registration duty and the design of the register mentioned in subparagraph 1.

 

§ 2.

With a view to the attainment of the objectives mentioned in Article 4, the Government of Flanders may impose conditions on:

 

enterprises or facilities that collect or transport waste or make arrangements for its recovery or disposal;

waste traders or brokers.

 

The conditions mentioned in subparagraph 1 may also refer to the method of collection and transport.


Article 13/1.

The Government of Flanders may lay down more specific rules on the management, processing and use of materials produced by construction and infrastructure works and by demolition, dismantling and renovation works as part of construction and infrastructure works.


The Government of Flanders can recognise demolition management organisations. The Government of Flanders shall determine the conditions and procedure for recognition. It shall also determine the conditions governing the use of such recognition.


Article 14.

The Government of Flanders may prohibit or regulate the import, export and transit of waste.

 

The Government of Flanders may take all measures relating to the import, export and transit of waste which may be necessary with a view to the implementation of Regulation (EC) No 1013/2006 of the European Parliament and the Council of 14 June 2006 on shipments of waste, and of the convention on the control of transboundary movements of hazardous wastes and their disposal, concluded in Basel on 22 March 1989. To this end, the Government of Flanders may, among other things:

subject each import, export or transit of waste within the scope of Regulation (EC) No 1013/2006 to the provision of a bank guarantee, a financial guarantee or equivalent financial security to cover the costs of transport and recovery or disposal, as mentioned in Article 6 of the aforementioned Regulation (EC) No 1013/2006;

Impose on the notifier for the import, export or transit of waste, the payment of a fee to cover the administration costs connected to executing the notification and inspection procedure, as well as demand the payment of the current costs for the appropriate analyses and inspections, as mentioned in Article 29 of the aforementioned Regulation (EC) No 1013/2006.

 

The cross-border movement of waste in violation of the provisions of the Regulation mentioned in subparagraph 2 or of the provisions laid down by virtue of subparagraph 1 or subparagraph 2, is prohibited.

 

By way of derogation from the Regulation mentioned in subparagraph 2, OVAM may, in the case of import, limit incoming movements of waste destined for waste incineration plants catalogued under recovery, if it has been determined that those movements would lead to waste originating in the Flemish Region needing to be disposed of or processed in a way that is not consistent with the implementation plans mentioned in Article 18.


Article 15.

The Government of Flanders shall lay down more specific rules regarding the granting of subsidies to:

 

natural or legal persons who take measures and initiatives in accordance with the objectives mentioned in Article 4, among other things to stimulate:

 

a)

the prevention of waste, the reuse and the more efficient use of materials which is less taxing on the environment via adapted production and consumption patterns;

 

b)

the cooperation between different actors within one or more material cycles with a view to reducing the environmental impacts of those material cycles;

 

c)

the separate collection of waste, recycling and the use of materials in closed material cycles;

 

d)

the market for products and raw materials obtained from waste;

 

e)

an optimisation of the management of material cycles and waste;

 

f)

research and development towards achieving cleaner and less wasteful technologies, products and services, as well as the dissemination and use of the results of research and development in this area;

local authorities with a view to tasks in implementation of the applicable implementation plans, as mentioned in Article 18;

the natural or legal persons mentioned in Article 9, paragraph 2 who operate a reuse centre, for its operation, investments or personnel;

the municipalities and associations of municipalities mentioned in subparagraph 1 of Article 27, for the costs of selective pick-up or collection;

natural persons, legal entities and authorities for the inventory, dismantling, collection, transport or processing of asbestos-containing materials, stated in chapter 3, section 6;
local authorities for the organisation of supervision and enforcement of the asbestos reduction policy.

                

The subsidies shall always be granted within the bounds of the credits included in the budget.


Article 16.

The tender specifications of authorities of the Flemish Region and of local authorities shall include provisions aimed at promoting the purchase of:

products or services which, taking into account the entire life cycle, contribute to a better closure of material cycles or have a lower environmental impact than similar alternatives;
raw materials obtained from waste or products made therefrom.

  

The Government of Flanders may lay down more specific rules for this.


Article 17. Translation not available

Article 18. Translation not available

Article 19.

§ 1.

The Government of Flanders may set up consultation platforms consisting of stakeholder government bodies, institutions and organisations governed by private law involved in the management of one or more categories of waste or the management of one or more material cycles, as well as stakeholders from the broader civil society. The Government of Flanders shall designate the parties involved. OVAM may designate additional parties involved.

 

The purpose of the consultation platforms mentioned in subparagraph 1 includes:

achieving a coordination of measures taken by public and private actors at different stages of one or more material cycles with a view to the attainment of the objectives mentioned in Article 4;
achieving an exchange of information between public and private actors with respect to the management of material cycles;
following up and evaluating the implementation of measures.

 

 

§ 2.

Consultation platforms shall be set up, inter alia, in the framework of:

 

the design, follow-up and assessment of the prevention programmes mentioned in Article 17;
the justification of derogations from the hierarchy mentioned in Article 8;
the design, follow-up and assessment of the environmental policy agreements mentioned in Article 20;
the design, follow-up and assessment of the implementation plans for the management of material cycles and waste mentioned in Article 18.

 

 

§ 3.

The Government of Flanders may lay down further rules for the creation and functioning of the consultation platforms mentioned in paragraph 1.


Article 20.

To achieve the objectives in Article 4, the Government of Flanders may conclude environmental policy agreements in accordance with the applicable decree provisions.

 

In order to implement the measures stated in Article 21, § 1, the Government of Flanders can provide for the possibility of entering into covenants. The Government of Flanders can impose conditions on the conclusion of a covenant and can lay down further rules on the content, manner of formation, notification, amendment and termination of a covenant.


Article 21. Translation not available

Translation not available

CHAPTER 3.
Provisions on the management of specific material cycles and waste


Section 1.
General provisions


Article 22.

All waste shall be classified in one of the following main categories according to its source or nature:

1° 

household wastes; 

2° 

operational wastes. 

 

In addition, wastes can be classified in one or more of the following additional categories:

1° 

hazardous waste; 

2° 

 special waste;

mixed municipal waste. 

 

The Government of Flanders may lay down further rules concerning the management of the waste classified in the categories mentioned in subparagraph 1 and subparagraph 2.

The requirements applicable for the main category and the additional categories in which a waste is classified shall be cumulative, as indicated in Article 29 or 32.


Section 2.
Operational waste


Article 23.

Producers of operational waste shall keep a chronological waste register, which shall include a record of the nature, origin, composition, quantity, destination and method of recovery or disposal of the waste. The Government of Flanders shall lay down the more specific rules concerning the content and structure of this waste register.

 

Producers of operational waste shall report some of the information from the waste register to OVAM. The Government of Flanders shall determine what information must be reported and in what manner this is to take place. It may have the reporting done via the integral annual environmental report referred to in Article 3.5.3. of the Decree of 5 April 1995 concerning general provisions relating to environmental policy.

 

The Government of Flanders may release specific categories of producers from the obligations mentioned in subparagraph 1 and subparagraph 2 on the basis of the low quantities and the low degree of harmfulness of the wastes produced by them.


Article 24. Producers of operational waste shall, at their expense, recover or dispose of the waste, unless otherwise determined by the Government of Flanders in accordance with Article 10.

Article 25. Translation not available

Section 3.
Household waste


Article 26.

Each municipality, whether or not in cooperation with other municipalities, shall ensure that household waste is prevented or reused as much as possible, picked up at regular intervals or collected in another way and recovered or disposed of in accordance with Articles 11, 12 and 13, paragraph 2.

 

The municipalities shall recover the costs of the management of household waste from the waste producers in accordance with Article 10. The municipality may authorise its privatised bodies or intermunicipal cooperation partnerships to collect these costs, also if these are translated into taxes and fees. The Government of Flanders may lay down further rules concerning the way in which municipalities are to calculate the costs of the management of household waste.

 

Without prejudice to the application of the provisions of this Decree, the pick-up and collection of household waste shall be regulated by municipal regulation.

 

The activities of each person necessary for the normal working of the services charged with the pick-up of household waste, as well as the material required for this, may be requisitioned by the Mayor, the Assistant Governor and the Governor.


Article 27.

Municipalities and associations of municipalities may conclude agreements with OVAM to promote or supervise the organisation of the selective pick-up or collection of household waste.

 

The provinces may, within the framework of the Flemish waste policy, offer supporting initiatives and actions aimed at concrete achievements in the field.


Article 28.

If a municipality or province or their cooperation partnerships do not within the period of time determined by the Government of Flanders fulfil their obligations imposed by or by virtue of subparagraph 1 of Article 26 or by the programmes and plans mentioned in Articles 17 and 18 and, as a result, harm the public interest, the Government of Flanders may, after giving notice of default by means of a reasoned decision, replace the municipality or province or their cooperation partnerships in question for the implementation of all measures necessary to comply with the aforementioned obligations. The Flemish Region may recover the costs of the aforementioned measures from the municipality or the province or their cooperation partnerships.

 

Both with respect to the coordination and with respect to the organisation, municipalities, provinces and their cooperation partnerships have the possibility to lodge an appeal with the Flemish Minister with responsibility for the Environment. The Government of Flanders shall lay down the more specific rules for this appeal procedure.


Section 4.
Hazardous waste


Article 29. The provisions of Sections 1 and 2 and of Chapter 2 shall apply to hazardous waste insofar as this Section does not contain any explicit provisions to the contrary.

Article 30. Translation not available

Article 31.

The provisions of Article 30 paragraph 2 and paragraph 5 shall not apply to mixed waste produced by households.

 

The provisions of Article 30 paragraph 2 shall not apply to separate fractions of hazardous waste produced by households until these materials are accepted for collection, disposal or recovery by an establishment or an enterprise which has obtained a licence or has been registered in accordance with Articles 11 and 13.


Section 5.
Special waste


Article 32.

In accordance with Article 4, the Government of Flanders shall lay down more specific rules for the management of the special waste referred to in Article 22, subparagraph 2, 2°.

 

The rules mentioned in subparagraph 1 shall complement the rules mentioned in Section 1, 2, 3, 4 or 5 and in Chapter 2. They may contain requirements for specific special wastes and activities aimed at the management of these wastes which vary from the provisions of Articles 6, 11, 13 and 26, if this is required for the efficient disposal or the recovery of these wastes.


Article 32/1.

The depollution, dismantling, destruction, including pressing of scrapped vehicles or the performance of another treatment on scrapped vehicles, can be made dependent by the Government of Flanders on prior approval as a centre for the depollution, dismantling and destruction of scrapped vehicles.

 

The Government of Flanders is laying down further rules for the accreditation. It determines the conditions and the procedure for accreditation, the possibility and procedure for its withdrawal and the conditions for the use of the accreditation.

 

The Government of Flanders can lay down further rules that the centres for depolluting, dismantling and destruction of scrapped vehicles must comply with as soon as they are accredited.
 


Article 33.

§ 1.

The Government of Flanders may, in supplementation or implementation of Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules concerning animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002, lay down more specific rules on the management of animal by-products and derived products as mentioned in the Regulation, if they comply with the definition of waste.

 

§ 2.

The Government of Flanders may release the producers of the waste mentioned in paragraph 1 from the notification obligation mentioned in Article 23, subparagraph 2 and subparagraph 3 and shall define more specific rules for this.

 

§ 3.

Except in the cases explicitly described by the Government of Flanders, the disposing of these wastes is only permitted to a natural or legal person who has been recognised or registered for this purpose or by this recognised or registered natural or legal person to a facility that has been recognised and licensed for this purpose.

 

The Government of Flanders shall lay down further rules on the issue procedure, recognition and registration.

 

In the cases specified by the Government of Flanders, the supervisors may decide that the waste may or must be disposed of through incineration or burial.

 

§ 4.

The Government of Flanders shall indicate the categories of producers of waste who are required to enter into an agreement on the financing of its pick-up by an establishment as mentioned in paragraph 3.

 

The Government of Flanders can determine the maximum rates that may be applied in case of a fee per service.

 

The collection and treatment of this waste, if this concerns entire cadavers of farm animals, other than for the categories of producers mentioned in subparagraph 1, shall be carried out free of charge. The Government of Flanders shall determine the conditions under which the recognised establishments are remunerated for these services at the expense of the Flemish Region.

 

The Government of Flanders shall determine the conditions under which operations in the framework of waste management are remunerated at the expense of the Flemish Region.


Section 6.
Materials containing asbestos


Subsection 6.1.
General provisions


Article 33/1.

It is prohibited to attach structures such as solar panels, overhanging roofs and advertising panels to or over roof and facade cladding containing asbestos. It is also prohibited to enclose or cover roof and wall cladding containing asbestos with other materials.


Article 33/2.

It is forbidden to clean or de-moss roof and wall cladding made of asbestos cement.


Article 33/3.

The Government of Flanders can lay down further rules for the management of rainwater run-off from an asbestos cement roof or facade cladding in order to minimise the impact on people and the environment.


Article 33/4.

The Government of Flanders can make compulsory the issue of a receipt for the delivery of asbestos-containing household waste to a natural person or legal person who, in accordance with Article 11, holds a permit for the disposal of the waste or to a registered waste trader or broker as stated in Article 13. 


The Government of Flanders can lay down further rules regarding the content and the issue of the proof of delivery, stated in the first paragraph.
 


Subsection 6.2.
Obligation to remove asbestos-containing materials


Article 33/5.

Every owner of a public construction with a risk construction year is obliged to remove the following asbestos-containing materials from his construction with a risk construction year by 1 January 2034:

all easily accessible non-bonded asbestos-containing materials with the exception of asbestos-containing plaster on walls that poses a low risk as stated in Article 33/6, third paragraph;
all easily accessible non-bonded asbestos-containing materials with the exception of asbestos-containing plaster on walls that poses a low risk as stated in Article 33/6, third paragraph;
2° all roof and facade cladding, gutters, flue gas ducts and rainwater drainage channels consisting of asbestos cement if they are located on the outside.

  
For public constructions with a risk-construction-year for which the owner must have an asbestos inventory certificate in accordance with Article 33/9, this certificate proves whether or not the obligation stated in the first paragraph has been met. For the other constructions with a risk year of construction, the Government of Flanders can determine how compliance with this obligation can be demonstrated. 


The Government of Flanders can grant a postponement for a maximum period of two years for the implementation of the obligation stated in the first paragraph, both for certain target groups and for certain categories of structures with a risk year of construction.


The Government of Flanders can determine that a postponement can be obtained until 2040 if it is demonstrated that the obligation stated in the first paragraph cannot be met without endangering public health or safety. The Government of Flanders determines the conditions and modalities of the application for this.


Translation not available

Article 33/7.

While maintaining the application of Articles 33/5 and 33/6, the owner of a structure shall always dispose of all asbestos-containing materials that have become easily accessible through the work through the appropriate channels during maintenance, repair or dismantling work in structures.


Article 33/8.

The OVAM may decide to dismantle, collect, transport or process materials containing asbestos. The Government of Flanders can make an arrangement or conclude an agreement for the disburdening, pre-financing and financing thereof by OVAM.


Subsection 6.3.
Asbestos inventory


Translation not available

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CHAPTER 4.
Demarcation of the waste phase


Article 34. The waste phase of a material shall commence as soon as the definition of waste is complied with.

Article 35. The Government of Flanders shall draw up a list of wastes, in accordance with the applicable European requirements, indicating the codes assigned to wastes, which wastes should be regarded as hazardous, and any analysis methods to be applied in order to determine whether a material complies with the description provided for a certain waste included in the list.

Article 36. Translation not available

Article 37.

A substance or object resulting from a production process, the primary aim of which is not the production of that substance or object, may only be regarded as a by-product and not as waste if the following conditions are met:

1° 

further use of the substance or object is certain; 

2° 

the substance or object can be used directly without any further treatment other than normal production practice; 

3° 

the substance or object is produced as an integral component of a production process;  

4° 

its further use is lawful, i.e. the substance or object fulfils all product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts. 


Article 38.

Soil materials, as stated in Article 2, 33°, of the Soil Remediation and Protection Decree of 27 October 2006, will not be regarded as waste if they are used in accordance with the conditions for use and the soil protection traceability of soil materials, stated in the Soil Remediation and Protection Decree of 27 October 2006 and its implementing decrees.


Article 39. Translation not available

Article 40. Translation not available

CHAPTER 5.
Environmental contributions, taxes and fees


Section 1.
Environmental contributions


Article 41. Translation not available

Article 42.

In accordance with the Convention on the Collection, Deposit and Reception of Waste Generated during Navigation on the Rhine and other Inland Waterways, signed in Strasbourg on 9 September 1996 and ratified by the Decree of Consent of 9 May 2008, an environmental contribution in proportion to the purchase of gas oil for inland shipping shall be owed with a view to the financing of the collection and treatment of oil and grease containing shipping waste that results from the operation and maintenance of inland navigation vessels. Said gas oil shall be understood to exclusively include fuel that is exempt from custom taxes and other taxes and that is intended for ships, with the exception of the ships that are authorised for maritime and coastal navigation and are mainly assigned for that purpose. The environmental contribution shall be owed by the person in charge of the ship that uses the gas oil for inland shipping purposes.

 

The Government of Flanders may lay down more specific rules for the operation of the financing system.


Article 43.

Port authorities who receive inland navigation vessels and waterway authorities shall outline a financing system for the reception and disposing of the remaining shipping waste in accordance with the Convention on the Collection, Deposit and Reception of Waste Generated during Navigation on the Rhine and other Inland Waterways, signed in Strasbourg on 9 September 1996 and ratified by the Decree of Consent of 9 May 2008. This contribution may be included in the port or dock charges, or charged separately.

 

The Government of Flanders may define further requirements to be met by the financing system.


Section 2.
Environmental taxes


Article 44.

The definitions mentioned in the Decree of 25 April 2014 on the environmental licence shall apply accordingly in this Section.

 


Article 45.

Operators of facilities with a licence obligation as mentioned in Article 46, paragraph 1, subparagraph 1, 1° through 18° and paragraph 2, subparagraph 1, as well as enterprises and facilities that are professionally engaged in the collection or transport of waste, waste traders and brokers with a view to its treatment outside the Flemish Region, as mentioned in Article 46, paragraph 1, subparagraph 1, 19°, shall be subject to an environmental tax.

 

Municipalities or associations of municipalities acting on their behalf may be directly liable for environmental taxes for the household and municipal waste picked up by them if they have received authorisation for this from OVAM. The authorisation shall mention the waste stream, the concrete destination and the applicable tax rate. A copy of this authorisation shall be provided to the operator of the facility to which the waste stream in question is being removed. The operator shall state the quantities concerned in an appendix to his declaration with reference to the respective authorisation. The operator shall report these quantities in good time to the municipalities or the associations of municipalities acting on their behalf that themselves act as the party responsible for paying the tax for the quantities concerned and shall submit a declaration in accordance with the provisions of this Decree.

 

Without prejudice to the exception specified in subparagraph 2 of Article 47, the tax mentioned in Article 46, paragraph 1, subparagraph 1, 1° through 18° and paragraph 2, subparagraph 1, shall apply for the quantities of waste as they are landfilled, incinerated or co-incinerated, including admixtures which were added for the purposes of landfilling, incineration or co-incineration.


Article 46. Translation not available

Article 47.

The environmental tax mentioned in Article 45 shall be owed:

at the moment the waste is processed in the facilities mentioned in Article 46, paragraph 1, subparagraph 1, 1° to 18° inclusive and paragraph 2, subparagraph 1, where the amounts mentioned in Article 46, paragraph 1, subparagraph 1, 1° to 18° inclusive and paragraph 2, subparagraph 1 are concerned;

at the moment the waste produced in the Flemish Region is shipped for the purposes of its processing outside the Flemish Region, where the amounts mentioned in Article 46, paragraph 1, subparagraph 1, 19° are concerned.

 

When a waste undergoes different treatment methods, the tax shall only be payable for the first treatment method applied that is subject to the tax. The exemption from the tax shall also apply for the admixtures added in the first treatment method.


Article 48. When for the operation of a facility the licence granted in conformity with the provisions of this Decree has expired and a new licence has been issued for the same facility, with a view to the application of the environmental taxes mentioned in Article 46, paragraph 1 and paragraph 2 the new licence shall be deemed to have been issued either with effect from the time mentioned in the licence decision if the licensing authority has taken a decision within the legally determined period, or with effect from the time when this decision should have been taken in conformity with the legally set period.

Article 49.

The collection of the tax shall take place once per quarter, specifically:

in the course of the months of April and May for the first quarter;

in the course of the months of July and August for the second quarter;

in the course of the months of October and November for the third quarter;

in the course of the months of January and February of the next year for the fourth quarter.

  

The Government of Flanders shall lay down the more specific rules concerning the collection of the tax.

 

The Government of Flanders shall appoint the officials and contract staff of OVAM who will be charged with the collection and the recovery of the tax and the control of compliance with the obligations relating to the tax, and it shall determine the more specific rules with respect to their competences.


Article 50.

§ 1.

The party responsible for paying the tax shall submit a declaration in the course of the months of April, July, October and January concerning the tax owed for the prior quarter.

 

§ 2.

The party responsible for paying the tax shall pay the tax for the prior quarter before 10 May, 10 August, 10 November and 10 February. The party responsible for paying the tax shall also, before 10 December of each year, make an advance payment of the tax for the fourth quarter of that year. This advance payment shall be set at sixty-six per cent of the amount obtained by dividing the amount payable by the party responsible for paying the tax for the first three quarters by three. The resulting fixed sum shall be rounded down to the nearest ten. If based on the declaration relating to the fourth quarter it appears that the tax that is actually due is lower than the due advance payment, this advance payment is decreased by the tax that is actually due, but increased by legal late payment interest on the calculated difference, shall be repaid to the party responsible for paying the tax within ninety calendar days of receipt of the appropriately completed declaration relating to the fourth quarter. The advance payment shall not be payable if the party responsible for paying the tax provides proof before 10 December that they have ceased their taxed activity before the commencement of the fourth quarter.

 

 

§ 3.

If the party responsible for paying the tax does not proceed with payment of the indicated amount, or if after control by the official charged with the collection and recovery of the tax it appears that the indicated amounts are incorrect, the official charged with the collection and recovery of the tax may claim a further amount from the party responsible for paying the tax.

 

§ 4.

If the party responsible for paying the tax has to make payments for a number of quarters, the oldest debts shall be paid first and, in order, payment shall be made of administrative penalties, late payment interests and the principal sum.

 

§ 5.

The Government of Flanders shall lay down the more specific rules for the declaration and payment of the tax.


Article 51.

The party responsible for paying the tax may reclaim the part of the tax included by him in his declaration and which has been regularly paid in the manner described in Article 50, paragraph 2), under the following conditions:

the tax is indisputable and has been clearly described on an invoice issued by the party responsible for paying the tax to a contracting partner with reference to the register referred to in subparagraph 1 of Article 52;

the claim of the party responsible for paying the tax shall be deemed permanently non-collectable in case of absence of assets after recording as an indisputable claim in the liabilities of the bankruptcy of the contracting partner on the basis of a certificate issued by the acting liquidator;

the application for the repayment of the tax shall be submitted to OVAM by registered mail, accompanied by the invoice mentioned in point 1° and a copy of the certificate issued by the acting liquidator mentioned in point 2


Article 52.

The party responsible for paying the tax shall record the quantities of wastes, in tonnes, for each day and in the order of treatment, in a register.

 

The party responsible for paying the tax shall present all documents required to check the settlement of the tax or the correctness of the indicated amounts on each request from the officials responsible for the control of compliance with the obligations relating to the tax.

 

On each request from the officials responsible for the control of compliance with the obligations relating to the tax, the party responsible for paying the tax shall, orally or in writing, provide all information requested from him to check the settlement of the tax or the correctness of the indicated amounts.


Article 53. If the tax has not been paid after the expiry of the period referred to in Article 50 paragraph 2, the legal interest mentioned in the Royal Decree of 4 August 1996 amending the legal interest rate shall become payable by operation of law.

Article 54.

If a party responsible for paying the tax, for whatever reason, has not submitted the declaration referred to in Article 50 paragraph 1, or has submitted it late, or has not complied with the obligations referred to in Article 52, the official charged with the collection may impose an official notice to pay for the amount of tax that is estimated to be payable.

 

In the cases mentioned in subparagraph 1 the tax shall be determined based on the requested documents or, in the absence thereof, based on the information that can be demonstrated by documents, witnesses and presumption.

 

The official notice to pay shall be imposed without prejudice to the possibility of further claims within the period referred to in Article 59.


Article 55.

Within a period of thirty days of the date of sending the official notice to pay or a further claim by registered mail, the party responsible for paying the tax may submit an appeal by registered mail to the Flemish minister appointed by the Government of Flanders, who shall issue a ruling within six months of the date of sending the notice of appeal. A copy of this appeal must be delivered to OVAM by registered letter. Under penalty of nullity, the appeal shall make reference to the case number, assessment year and quarter mentioned in the official notice to pay or the further claim. The Flemish minister appointed by the Government of Flanders may extend the abovementioned period once only by a period of six months by means of a registered letter stating reasons sent to the party responsible for paying the tax.

 

Before taking a decision, the Flemish minister appointed by the Government of Flanders shall present the disputes referred to in the first paragraph before an advisory committee.

 

The Government of Flanders shall determine the more specific regulations with respect to the operation and composition of the disputescommittee.

 

In the absence of a ruling by the Flemish minister appointed by the Government of Flanders within the period mentioned in the first paragraph, the appeal of the party responsible for paying the tax shall be deemed to have been granted.

 

The minister shall send his decision to the party responsible for paying the tax by registered mail. An appeal may be lodged against the decision of the minister in accordance with the provisions of Articles 1385decies and 1385undecies of the Judicial Code.

 

In the event that proceedings are conducted before the Court of Cassation, notwithstanding Article 1080 of the Judicial Code, the application for a provision in cassation and the answer to the provision may be signed and deposited by a lawyer.

 


Article 56.

With regard to the party responsible for paying the tax referred to in Article 45, the repayment of excessively declared and paid environmental taxes can take place by setting it off against the due amount to be declared and paid in a next quarter of the current calendar year.

 

With the quarterly declaration the party responsible for paying the tax shall append the necessary documents to prove the validity of his calculation. If this calculation is incorrect or wrongly applied, further claims as mentioned in Article 50, paragraph 3 remain possible.


Article 57. The Government of Flanders may determine more specific rules with respect to the appointment of persons charged with the collection and recovery of the environmental taxes, the method of collection and recovery of the environmental taxes, the declaration and the payment of the environmental taxes and the treatment of the appeals lodged in accordance with subparagraph 1 of Article 55.

Article 58. Without prejudice to the application of the provisions of Chapter 7, an administrative penalty shall be imposed for each further claim, as mentioned in Article 50, paragraph 3), and for each official notice to pay, as mentioned in subparagraph 1 of Article 54. If taxes are not or insufficiently declared, the penalty shall be equal to the taxes that were not or insufficiently declared. In cases where payment of the declared taxes is late, the penalty shall be equivalent to 10% of the taxes that were not paid on time. In both cases, the penalty shall be no less than 70 euros. This administrative penalty shall be calculated based on the environmental tax without application of the coefficient of 0.70, as referred to in Article 46, paragraph 6.

Article 59. The claim for payment of the tax, the interest and the administrative penalty shall lapse after five years starting on the date of origination. This period of limitation shall be interrupted in the manner and under the conditions described in the Civil Code.

Article 60. The official appointed by the Government of Flanders to this end may reach settlements with the party responsible for paying the tax, to the extent that these do not lead to an exemption from or reduction of the tax.

Article 61.

The official mentioned in Article 60 shall also decide on the reasoned requests for the release from or reduction of the administrative penalty addressed to him by registered mail by the party responsible for paying the tax. Under penalty of nullity, these requests must be submitted at the latest within one month after the appellant has been notified of the decision of the Flemish minister appointed by the Government of Flanders concerning the appeal lodged in accordance with the provisions of the fifth paragraph of Article 55.

 

An appeal may be lodged against the decision mentioned in the first paragraph in accordance with the provisions of Articles 1385decies and 1385undecies of the Judicial Code.

 

In case of proceedings before the Court of Cassation, by way of derogation from Article 1080 of the Judicial Code, the application for a provision in cassation and the answer to the provision may be signed and deposited by a lawyer.

 


Article 62. The official mentioned in Article 60 shall also decide on the reasoned requests to delay payment submitted to him by registered letter by the party responsible for paying the tax.

Article 63.

In the absence of the settlement of the tax, the interest, the administrative penalty and related charges, the official charged with collection shall issue a final demand and notice.

 

This final demand and notice shall be signed and declared enforceable by the official designated for this purpose by the Government of Flanders. The final demand notice shall be served by writ or by registered letter.

 

The provisions of part V of the Judicial Code with regard to attachment and means of enforcement shall apply to the final demand and notice.


Article 64.

As security for the settlement of the tax, the interest, the administrative penalty and the costs, the Flemish Region shall have a general preferential right to all movable property of the party responsible for paying the tax. It may establish a legal mortgage on all goods liable for such that are located in the Flemish Region and belong to the person in whose name the further claim or tax demand is established.

 

The preferential right mentioned in subparagraph 1 shall rank immediately after the preferential rights mentioned in Articles 19 and 20 of the Mortgage Law.

 

The rank of the legal mortgage shall be determined by the date of registration.

 

The mortgage shall be registered on the request of the officials referred to in Article 60.

 

Article 19 of the Bankruptcy Law shall not apply to the legal mortgage relating to the tax due for which the registration was made and notice was served on the party responsible for paying the tax prior to the bankruptcy order.


Article 65.

Municipalities shall be entitled to call in the services of OVAM for the collection of the surcharges, insofar as these amount to a maximum surcharge of 20%, to be collected by the municipality in question on the environmental taxes collected by OVAM, mentioned in Article 46, paragraph 1 and paragraph 2, for facilities subject to the taxes located on their territory.

 

The Government of Flanders shall lay down the more specific rules relating to the costs and method for the collection of the surcharges.


Section 3.
Fees


Article 66. Translation not available

Chapter 6.
Transition towards a circular economy


Article 67.

OVAM, as a competent entity, in collaboration with all the actors involved, supports  the transition towards  sustainable materials management and a circular economy. The purpose of this support is to achieve and support concrete breakthroughs on the road towards a sustainable economy and society when it comes to materials in the Flemish region, and to set an example within the European Union. To this end, OVAM will set up a cooperation partnership with  the Government of Flanders institutions involved, the business community, the knowledge world and civil society.

 

Within that partnership, agreements are made about:

the establishment of a public-private steering group to manage the transition in terms of content and strategy. The steering group is composed in a balanced way of representatives of organisations that play an important role in the transition to a circular economy, and who are committed to investing time and resources in it;
the drawing up of internal regulations on the internal functioning of the steering group. 

 

The Government of Flanders can lay down further rules for the transition and the partnership referred to in the first paragraph.                                                     


CHAPTER 7.
Supervision and criminal provisions


Article 68.

For the purposes of this Decree and its implementing orders, the supervision and the administrative enforcement shall be carried out and safety measures shall be taken according to the rules referred to in Chapters III, IV and VII of Title XVI of the Decree of 5 April 1995 concerning general provisions relating to environmental policy.

 

By way of derogation from subparagraph 1, the supervision of and administrative enforcement of compliance with the requirements relating to environmental taxes shall be carried out according to the rules mentioned in Chapter 5, Section 2.


Article 69.

For the purposes of this Decree and its implementing orders, the investigation, detection and punishment of environmental infringements and environmental offences shall be carried out according to the rules referred to in Title XVI of the Decree of 5 April 1995 concerning general provisions relating to environmental policy.

 

By way of derogation from subparagraph 1, breaches of the requirement to notify and pay environmental taxes mentioned in Article 50 and the requirement to pay the administrative fine mentioned in Article 58 shall only be punished in the manner mentioned in Chapter 5, Section 2.


CHAPTER 8.
Amending provisions


Article 70.

In Article 3.2.2, § 1, of the Decree of 5 April 1995 containing general provisions regarding environmental policy, inserted by the Decree of 19 April 1995, the word “waste flows” is replaced by the word “material flows” and point d) is replaced by what follows:


“d) to monitor the maintenance of the waste materials register and the materials register and compliance with the notification obligation stated in Articles 6, 23 to 25 and 30 of the Decree of 23 December 2011 on the sustainable management of material cycles and waste materials”.
 


Article 71.

In article 3.4.3, § 1, of the same decree, inserted by the decree of April 19, 1995, the words ‘Without prejudice to articles 17, § 1, and 23 of the decree of July 2, 1981 on the prevention and management of waste materials” are replaced by the words "Without prejudice to the application of Article 23, paragraph 1, and Article 30 of the Decree of 23 December 2011 regarding the sustainable management of material cycles and waste materials".


Article 72.

In Article 3.5.1 of the same decree, inserted by the decree of 19 April 1995, the second paragraph is replaced by the following:

 

“The Government of Flanders may also prescribe that the information to be provided for the establishments referred to in the first paragraph in accordance with Article 23, second paragraph, of the Decree of 23 December 2011 on the sustainable management of material cycles and waste materials, must be included in the annual environmental report“.


Article 73.

In Article 10.1.1 of the same decree, inserted by the decree of 7 May 2004, the second paragraph is replaced by the following:

 

“2° Materials Decree: the Decree of 23 December 2011 regarding the sustainable management of material cycles and waste;”.


Article 74.

In Article 10.3.2 of the same decree, inserted by the Decree of 7 May 2004, the words “referred to in Article 5 of the Waste Materials Decree” are replaced by the words “mentioned in Article 4 of the Materials Decree” and the words “material flows” are replaced by the words ‘material cycles’.


Article 75.

In Article 10.3.3, § 1, of the same decree, inserted by the decree of 7 May 2004 and amended by the decrees of 22 April 2005 and 25 May 2007, the following changes are made:

in paragraph 1, the words “material flows” and “cycles of material flows” are replaced by the words “material cycles”;
in paragraph 2, 1 °, a), the words ‘Substance cycles’ are replaced by the words ‘material cycles’; 
in paragraph 2, point 2° is replaced by the following: 
“2° the design of prevention programmes and implementation plans as stated in Articles 17 and 18 of the Materials Decree, as well as checking and following up the implementation of the aforementioned prevention programmes and implementation plans and preparing and developing programmes in accordance with the applicable international and European regulations, of which the implementation falls within the scope of the Materials Decree;”;
in paragraph 2, point 3° is replaced by the following:
“3° concluding agreements with the municipalities or associations of municipalities to promote or support the organisation of the selective collection or collection of household waste materials as stated in Article 27 of the Materials Decree;”;
in paragraph 2, point 4° is replaced by the following: 
“4° preparing the negotiations with a view to concluding the environmental policy agreements, stated in the Materials Decree;”; 
in paragraph 2, point 4° is replaced by the following: 
“4° preparing the negotiations with a view to concluding the environmental policy agreements, stated in the Materials Decree;”;
in paragraph 2, point 7° is replaced by the following:
“7° performing the tasks within the framework of the extended producer responsibility, stated in Article 21 of the Materials Decree, and the take-back obligation stated in the Packaging Waste Cooperation Agreement;”; 
in paragraph 2, point 8° is replaced by the following: 
“8° the establishment, collection and recovery of the environmental tax on the processing of waste materials, stated in Article 44 up to and including Article 65 of the Materials Decree;”;
in paragraph 2, point 9° is replaced by the following:
9° the handling of subsidy applications, stated in Article 15 of the Materials Decree;”;
10° in point 10° the words “waste flows” are replaced by the word ‘material flows’;
11° a point 12° is added, which reads as follows:
“12° advising the Government of Flanders on deviations from the hierarchy as stated in Article 8 of the Materials Decree”.

Article 76.

In Article 10.3. 4, of the same decree, inserted by the decree of 7 May 2004 and amended by the decrees of 19 May 2005 and 12 December 2008, paragraph 4 is deleted.


Article 77.

In Article 16.1.1, first paragraph, of the same decree, inserted by the decree of 21 December 2007 and replaced by the decree of 30 April 2009, point 10° is replaced by the following: 
 
“10° Materials Decree: the Decree of 23 December 2011 regarding the sustainable management of material cycles and waste;”.
 


Article 78.

In Article 16.6.1, § 1, second paragraph, of the same decree, inserted by the decree of 21 December 2007 and amended by the decree of 30 April 2009, point 3° is replaced by the following: 
 
“3° violations of the obligation to comply with the levy and pay the administrative fine referred to in Articles 48 and 58 of the Decree of 23 December 2011 on the sustainable management of material cycles and waste;”.
 


Article 79.

In Article 16.6.4, first paragraph, of the same decree, inserted by the decree of 21 December 2007, the words «the decree of 2 July 1981 on the prevention and management of waste materials» are replaced by the words “the decree of 23 December 2011 on the sustainable management of material cycles and waste”.


Article 80.

In Appendix IV of the same decree, inserted by the decree of 21 December 2007, the second paragraph is replaced by the following: 
 
«12° Any cross-border shipment of waste within, to and from the European Union for which a permit is required or a prohibition applies as stated in Article 14, first and second paragraph, of the Decree of 23 December 2011 on the sustainable management of material cycles and waste.“.
 


CHAPTER 9.
Final provisions


Article 81. Articles 1 and 7 of the Law of 22 July 1974 on toxic waste are repealed.

Article 82.

The Decree of 2 July 1981 on the prevention and management of waste, last amended by the Decree of 23 December 2010, is repealed.

 

In all legal texts referring to the Decree of 2 July 1981 on the prevention and management of waste, this must be read as a reference to this Decree.


Article 83.

The Royal Decree of 9 February 1976 containing general regulations on toxic waste, last amended by the Decree of the Walloon Government of 20 December 2001, is repealed.


Article 84.

The sectoral implementation plans, established in accordance with the Decree of 2 July 1981 on the prevention and management of waste, remain valid for the period of validity established in the plan.


Article 85.

The appeals lodged before the entry into force of this decree in accordance with article 50, § 15, of the decree of 2 July 1981 on the prevention and management of waste materials against an official assessment or recovery, will be further dealt with in accordance with the procedure stated in article 50 of the Decree of 2 July 1981 on the prevention and management of waste.


Article 86.

This Decree enters into force on a date to be determined by the Government of Flanders, with the exception of Section 2 of Chapter 5, which enters into force on 1 January 2012.