BELGIUM Law and Practice Contributed by: André Kegels, Kegels Advocaten
Tonnage Tax – for Operators/Ship Managers If certain conditions and minimum thresholds are met, ship-management activities and operating services could qualify for the Belgian tonnage tax regime. 8. Implications of Non- Performance, the IMO 2020, Trade Sanctions and the War in Ukraine 8.1 Force Majeure and Frustration Non-Performance and Force Majeure The non-performance of a shipping contract due to the implications of the pandemic – such as late delivery, non-arrival of a chartered vessel, or slow ratio of loading or discharging – will, in itself, not be considered a “force majeure” event. In general force majeure is an insurmountable obstacle to the fulfilment of commitments. The doctrine of impossibility implies that there are three conditions for the existence of force majeure: the performance of an obligation has become impossible due to circumstances that are not due to a fault of the debtor and that were unforeseeable and insurmountable for them. Force majeure will, in principle, not be accepted to avoid monetary obligations. It is essential that each party fulfils its obliga - tions, even if their performance becomes more onerous either because the cost of performance increased or because the value of the counter- performance was reduced. COVID-19 and force majeure If an obligation must be performed (eg, transport of goods) but is made impossible by an unfore - seen event (eg, a COVID-19 measure), then in some circumstances and depending on the fac -
tual circumstances, this could be considered as force majeure. The Belgian courts have dealt with matters relating to the non-performance of contractual obligations (in relation to shipping contracts or any other commercial contract) due to the COVID-19 pandemic and rarely concluded that a force majeure event was present. Contractual Changes Due to Unduly Onerous Contract Since 2022 new statute law provides that the debtor may ask the creditor to renegotiate the contract with a view to its amendment or ter - mination, albeit only in certain circumstances. Circumstances must have changed to render the performance of the contract unduly onerous, to such an extent that its performance can no longer reasonably be demanded. Such change must have been unforeseeable at the conclusion of the contract and must not be imputable to the debtor; the debtor must not have accepted to take that risk for their account and neither the law nor the contract excludes the possibility of renegotiation. The parties are then obliged to renegotiate the contract. If no agreement can be reached, the president of the competent court will decide on the faith of the contract in urgency proceedings. 8.2 Enforcement of the IMO 2020 Rule Relating to Limitation on the Sulphur Content of Fuel Oil Belgium has implemented IMO 2020 (Annex VI MARPOL), limiting the sulphur content of fuel oil used on board ships to 0.50% mass by mass (m/m), which came into force on 1 January 2020. PSC is responsible for the enforcement of the sulphur content limitation. As the Port of Antwerp is a major place for bun - kering, the new sulphur limits have led to sig - nificant litigation already. Enforcement actions
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