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The new Belgian legislation on pleasure boating

In Belgium, new legislation on pleasure boating entered into force on 5 July 2018. Until now, pleasure boating in Belgium was still characterised by a fragmented legislative framework, namely regulated by 7 different legislations, 15 Royal Decrees and 5 Ministerial Decrees. The continuous growth of this sector in our country, however, created the need for coordinated legislation that would subsequently make pleasure boating in Belgium more accessible.

This approach is therefore clearly reflected in the guidelines set out for this purpose, which to a large extent characterises the new legal provisions, in particular;

(1) to achieve administrative simplification;

(2) to create of an environment that would encourage economic investment in Belgium;

(3) to enhance safety on inland waterways.

-I- The renewed legislation

In line with the objectives of creating new legislation for pleasure boating, the biggest changes can be seen in terms of

(1) Definition;

(2) Scope of application;

(3) Registration;

(4) Safety

A. Towards a more transparent definition

1.- Whereas previously 'ship' and 'pleasure boat' were concepts whose definition had a fragmented existence across different legislations, from the coordinating point of view of the Act of 5 July 2018 uniform definitions are provided for in Article 2;

Art. 2. For the purposes of this Act and its implementing decrees, the

following definitions shall apply;

1° "ship" means any craft, with or without motive power, with or

without displacement of water, which is or has been propelled and

which is used or is suitable for use as a means of waterborne traffic,

including air-cushion vehicles but excluding fixed craft, seaplanes and

amphibian craft;

2° "pleasure boat" means any ship engaged in or intended for use in

pleasure boating, whether for business or professional purposes or

not, to the exclusion of ships carrying more than twelve passengers;

2.- It should be noted that the new legislation no longer retains the often unclear distinction between 'commercial' and 'non-commercial' pleasure boats, but has preferred a new distinguishing criterion, i.e. 'business or professional use'.

Pleasure boating intended for business or professional use and thus used for the performance of an economic activity still has to comply with higher safety standards as laid down by Royal Decree.

On the other hand, the guideline for determining when a pleasure boat is used for an 'economic activity' has been changed. Indeed, if a certain activity for which the recreational craft is used, is in itself subject to VAT legislation, it is considered as being used for ‘business or professional purposes’, irrespective of who owns the craft.

B. Wider in scope

1.- Previously, the term 'pleasure boat' was reserved exclusively for boats with a maximum length of 24 metres. The so-called 'super yachts' were thus not covered by the previous legislation on pleasure boating.

However, this exclusion is now a thing of the past with this new legislation, since Article 3 of the Law of 5 July 2018 no longer provides for a maximum length but, on the contrary, only creates a minimum requirement of 2.5 metres for a ship to be registered as a 'pleasure boat' in Belgium.

This amendment then implies that under the new legislation a significantly higher number of ships will be eligible for registration as 'pleasure boat' in Belgium.

C. Under a simplified registration regime

1.- Belgium not only wants to become more attractive as a country of registration for recreational boats, but also to stimulate the economic investments of this sector in our country.

These two objectives were translated into a new registration regulation in which, on the one hand, a far-reaching administrative simplification was observed and, on the other hand, a required economic connection with Belgium was provided for from now on.

2.- In accordance with Article 4 of the Act of 5 July 2018, the Belgian registration of a pleasure boat has been reduced to a single compulsory registration, for which a unique registration letter is received.

This registration letter is intended to replace the previous obligation to provide a flag letter and/or immatriculation document, depending on the sailing areas (inland shipping and/or maritime shipping).

3.- Simplification, on the other hand, goes hand in hand with the new requirement to have a minimum link with Belgium in order to be able to register. This minimum link implies that at least 50% of the ownership of the vessel must be in the hands of a natural person or legal entity with the Belgian nationality, a Belgian registered office, a Belgian company number or that the vessel has been placed on the Belgian market by a Belgian trader in accordance with Directive 2013/53/EU (with regard to the CE marking).

This obligation is aiming not only to attract economic investment to Belgium, but also to raise the safety aspect to a higher level. The figures for 2015 show that 33.5% of flag letters were issued to natural or legal persons having no connection with Belgium, which made it more difficult to inspect pleasure boats, even though these vessels are increasingly used for drugs and human trafficking. The new system should thus meet this need.

4.- Finally, a stricter regime has been introduced with regard to the choice of the home port. Under the new legislation, the choice of a Belgian registration is therefore accompanied by the compulsory designation of a Belgian home port.

If a dispute subsequently arises without there being a territorial connecting factor for the competent court to determine, the chosen Belgian home port shall serve that purpose.

5.- The registration letter, unlike the former flag letter (which remains valid for only five years), is now issued for an indefinite period. As a counterbalance to this 'luxury', every 4.5 years a control question will be required by DG Navigation regarding the identification of the owner of the vessel. In this way, the data are kept up to date.

D. And more attention to safety on inland waterways.

1.- The safety conditions will be raised under the new regulation, the details of which will be included in the implementing royal decrees to follow later.

2.- Pleasure boats used for business or professional purposes shall remain obliged to hold a certificate of soundness.

This certificate is a confirmation of compliance with all legal and regulatory safety requirements and is issued by the competent authority, after verification, so that any user of the vessel can be certain of its safety.

Whereas previously this requirement only applied to pleasure boats sailing on the Belgian territorial sea, the new legislation extends this obligation to pleasure boating used commercially on inland waterways.

In addition, the obligation now also applies to pleasure boats flying a foreign flag in Belgian waters and used for economic activities. Admittedly, foreign vessels may also be able to meet this requirement if they are able to produce a comparable foreign certificate. The validity of this certificate still requires the approval of the DG Navigation.

The period of validity of the certificate shall remain unchanged for five years.

3.- However, stricter equipment requirements will be imposed on these recreational craft intended for commercial or professional use in the implementing royal decrees to follow later.

4.- However, as far as licensing is concerned, it should be noted that, for Belgian waters, the STCW obligations have become less strict, in the sense that, as from now on, practical experience is considered more important than simply having a certificate.

5.- Finally, by virtue of Article 16 of the Act of 5 July 2018, there has been given the option of providing compulsory insurance for certain vessels by way of Royal Decree.

-II- Legislation entered into force?

The above provisions entered into force on 1 July 2018. As the implementing royal decrees are now awaited for the practical implementation of the renewed registration procedure for pleasure boating, Chapter 2 (i.e. the provisions concerning the registration of a pleasure boat in Belgium) of the Act of 5 July 2018 will only enter into force on 1 January 2019.

-III- Conclusion

Analysing the renewed legal provisions, the current pillars of pleasure boating in Belgium are clear, and are focusing on: (1) codification, (2) the growth of the Belgian pleasure boating fleet and finally (3) on the safety of inland waterways.

However, in order to benefit from the simplified registration procedure for this purpose, it will be a matter of waiting until chapter 2 of the Act of 5 July 2018 on pleasure boating will enter into force, which will thus have an effect as of 1 January 2019.

If you want more information on the Belgian legislation on pleasure boating, please contact info@kegels-co.be