Belgium, how red is red?

[Heckler]

I agree that what they are doing is stupid, but I can't see how Brexit will help, surely they will still fine you after Brexit has happened if you have any trace of red diesel in your tank.

As I understand it they are fining because we are not complying with EU law which they think we should do because we are part of it. After Brexit we are not part of EU and therefore are not bound by EU law. We Will then be the same status as any visiting non EU vessel, taking it to the extreme, the same as a non EU freighter. So the rule of "free paasage" comes in to play. Are they dipping diesel freighters? Or what do they say about tax free bunker oil?
Stu

 

[FWB]

 

[maby]

As I understand it they are fining because we are not complying with EU law which they think we should do because we are part of it. After Brexit we are not part of EU and therefore are not bound by EU law. We Will then be the same status as any visiting non EU vessel, taking it to the extreme, the same as a non EU freighter. So the rule of "free paasage" comes in to play. Are they dipping diesel freighters? Or what do they say about tax free bunker oil?
Stu

I don't think this is a safe assumption - you try landing in Saudi with a bottle of whiskey in your luggage and telling them that it's ok - it was perfectly legal where you bought it.

 

[Angele]

It doesn't need to be quantitative just to show that there is dye in the fuel.

Oh Lordy!!

I said (emphasis added):

But, if they aren't actually doing a quantitative chemical analysis (and I haven't seen any report from victims saying that had to wait to find out if they were going to be fined while a sample was put through a spectrometer) then all they are doing is a visual check and that is impossible to identify infinitesimally small quantities of the dye. So, the threshold cannot be zero.

Not sure why you are taking issue with what I said when I said specifically that there was another way.

 

[maby]

But, if they aren't actually doing a quantitative chemical analysis (and I haven't seen any report from victims saying that had to wait to find out if they were going to be fined while a sample was put through a spectrometer) then all they are doing is a visual check and that is impossible to identify infinitesimally small quantities of the dye. So, the threshold cannot be zero.

Anyone ever performed their own experiment mixing red and white to see at what concentration it starts to look pinkish to the naked eye?

The directive describes the marking and testing regime including the lower detection limits. I assume that the enforcement process will follow similar lines to alcohol testing of drivers - rather like the breathalyser, the colour gives a quick indication of whether or not an offence is likely to be being committed, but a prosecution would have to be supported by a more exhaustive laboratory analysis. If the police issue an on-the-spot fine, then you should have the opportunity to challenge it in court provided you are confident that the actual levels of marker in your tank fall below the lower limit of the testing process.

 

[Fr J Hackett]

But (as you're probably only too well aware!) there is no such EU directive! There are two directives posibly relevant:

1. COUNCIL DIRECTIVE 2003/96/EC, see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:283:0051:0070:EN:PDF which does not mention red (aka 'marked') fuel at all. It merely states that all fuel used for propulsion must be taxed at at least 330 euros per 1000 litres. I believe that the UK is fully compliant with this (we pay at least this much tax on every litre used for propulsion, and take receipts with us to prove it).

2. COUNCIL DIRECTIVE 95/60/EC (which pre-dates the above one by ~8 years), see http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31995L0060&from=EN which requires member states to add die to all non-taxed fuel. Interestingly it's silent about adding die to taxed fuel, but in any case says Member States may allow exceptions to the application of the fiscal marker provided for in paragraph 1 on grounds of public health or safety or for other technical reasons, provided they take appropriate fiscal supervision measures. As I understand it the UK argues that (i) the directive says nothing about adding die to taked fuel, and (ii) due to our long coastline and variety of small ports in such places at the NW of Scotland, we do have adequate technical reasons to continue to allow yachts to use marked fuel, provided that duty has been paid as per directive 2003/96/EC.

Now just because these are EU directives doesn't mean they have any power. They have to be enacted into national law to take effect, andI imagine that all states have done so, certainly both the UK and Belgium. So to take action under any directive a nation state has to apply its own law. What would be really useful in this case would be to get a copy of the actual act of (Belgian) parliarment, to see whetehr they have drafted it in contravention of the relevant EU directive,or, more likely, some officials have decided to interpret it in a manner which is stricter than the EU directive: it's hard to see how national law in one state can cover the directive's clause allowing technical reasons until such time as there has been a ruling in the ECJ. And there hasn't yet been one, so it's my assertion that Belgium is itself in breach of the EU directive.

But, if I may suggest, humphing about the EU and how dreadful it is is most unliekly to lead to any resolution at all, let alone one we'd be happy with. But fighting back with counter-claim that Belgium is acting in breach of EU directives on free movement of people and services, and additionally is acting in breach of IMO agreements on shipping, is, imho, much more likely to prove fruitful.

You may be correct in how they have enacted the directive into Belgian law, here is a post from the East Coast discussion that refers to the "Royal Decree"

[h=2]image: http://www.ybw.com/forums/images/icons/icon1.png

Re: Ostende and red diesel - BEWARE[/h]

This was he reply to my email which I have reproduced below ( I have redacted personal details) - Short and to the point, but what are 'Union Waters' and no further information about why certain boats were targeted....

Dear Sir,

According to the Royal Decree of June 28th 2015, article 54, 2° states clearly that liquid motor fuels present, sold or used to drive an explosion or combustion engine of private pleasure crafts cannot contain any denaturates nor markers, on ilnad waterways or Union waters.

Sincerely,


Dienst PR&C - Communicatie AAD&A
Service RP&C - Communication AAD&A



Verzonden: vrijdag 14 juli 2017 15:39
Aan: Minfin Info Douane (MINFIN)
Onderwerp: Marked Diesel

Dear Sir
It is clear then that, in July, a number of British and Dutch leisure
boats in Belgium channel ports have received hefty fines for having
Marked Diesel in their tanks, some with only a trace.

What is also clear is that there is insufficient information about the
circumstances of the recent incidents. Upsetting the local Customs
personnel may be a factor but I reckon not.

If I fill my tank with Red Diesel and pay full duty in the UK and have a
receipt to prove it am I still committing an infringement of the rules
simply by having marked diesel in the tank. Were the fined boats unable
to produce receipts, or is there some other issue.....

As it is almost impossible to obtain unmarked diesel in UK Marinas, I
feel unable to visit Belgium by boat or for that matter any othe rmeans
Yours sincerely

Shotley
UK


Il est clair alors qu'en juillet, un certain nombre de bateaux de
plaisance britanniques et néerlandais dans les ports de la chaîne belge
ont reçu de lourdes amendes pour avoir marqué Diesel dans leurs
réservoirs, certains avec seulement une trace.

Ce qui est également clair, c'est qu'il n'y a pas suffisamment
d'informations sur les circonstances des incidents récents. Déplacer le
personnel douanier local peut être un facteur, mais je ne sais pas.

Si je remplis mon réservoir avec Red Diesel et que je paye un plein
devoir au Royaume-Uni et que je reçois un reçu pour le prouver, je suis
toujours en train de commettre une infraction aux règles simplement en
ayant un diesel marqué dans le réservoir. Les bateaux ayant reçu une
amende n'étaient-ils pas capables de produire des recettes, ou y a-t-il
un autre problème ...

Comme il est presque impossible d'obtenir un diesel non marqué dans les
Marinas britanniques, je me sens incapable de visiter la Belgique en
bateau ou, en fait, tout moyen​

"Keep true to the dreams of your youth."
Friedrich Schiller (1759 - 1805)
​

Read more at http://www.ybw.com/forums/showthrea...-red-diesel-BEWARE/page19#oYKSS4iXpjyD67VZ.99

 

[Sybarite]

OK - found it :

"Well, at least this bit is clearly defined - you need to dilute 75:1 with white diesel to get below the threshold - so it really is not feasible to do it in even two steps with a 30 gallon tank - you would need to run it down to less than half a gallon - certainly running a serious risk of running out of fuel, probably sucking all sorts of gunge out to the bottom of the tank and into your engine and, probably, not even possible since the dip tube probably does not get close enough to the bottom of the tank. I think that the concensus from Belgium - where they have already done this - is that it takes at least three cycles of running it almost empty, then filling up almost completely to get there."

You can seriously damage your pump if you let it run dry. It is lubricated by the diesel passing through and is machined to very fine tolerances.

 

[Blue Sunray]

Please, please go to Belgium with red diesel in your tank. I doubt they would give you access to t'internet in their pokey so relief for all.

:encouragement:

 

[robertj]

Discussions of whether 2/5/10% in ones tank is completely irrelevant.
Don't go to Belgium they will fine you.
If you do go and you have traces of red in ones tank then you deserve to be fined.
Repeat Don't go to Belgium, give them no revenue, nothing.
The RYA should be advising to avoid Belgium like the plague.

 

[Tomahawk]

Apopros #26 I have been sending emails to the places I used to visit in Belgium..
Also the Flanders tourist board ... and Oostend Vor Anchor...

If everyone starts to do the same they may get the hint..... IT IS HURTING THEIR TOURIST TRADE.
Come on everyone, get onto the act.. email your favorate restaurant, bar, club, and tell them to do something.

 

[Robin]

Discussions of whether 2/5/10% in ones tank is completely irrelevant.
Don't go to Belgium they will fine you.
If you do go and you have traces of red in ones tank then you deserve to be fined.
Repeat Don't go to Belgium, give them no revenue, nothing.
The RYA should be advising to avoid Belgium like the plague.

And very publicly,

Diesel in our boat tanks here in the USA was red also, so good job we sold up here and will buy again when back in the UK, not that I would have any reason now to want to go to Poirot land, bin there done that plenty of times by plane or car, nothing there would attract me back, not even, but especially, the canned gnats pee, Stella :disgust:.. Would they fine a USA boat I wonder?

 

[Heckler]

I don't think this is a safe assumption - you try landing in Saudi with a bottle of whiskey in your luggage and telling them that it's ok - it was perfectly legal where you bought it.

Apples and Pears!
S

 

[Heckler]

And very publicly,

Diesel in our boat tanks here in the USA was red also, so good job we sold up here and will buy again when back in the UK, not that I would have any reason now to want to go to Poirot land, bin there done that plenty of times by plane or car, nothing there would attract me back, not even, but especially, the canned gnats pee, Stella :disgust:.. Would they fine a USA boat I wonder?

I doubt it very much.
S

 

[Heckler]

Discussions of whether 2/5/10% in ones tank is completely irrelevant.
Don't go to Belgium they will fine you.
If you do go and you have traces of red in ones tank then you deserve to be fined.
Repeat Don't go to Belgium, give them no revenue, nothing.
The RYA should be advising to avoid Belgium like the plague.

Exactly!
Stu

 

[Angele]

Would they fine a USA boat I wonder?

I doubt it very much.
S

I'm forgetting who did what. Whether it was the Belgians or the Germans, but IIRC two(?) American boats faced fines for red diesel. They were prepared to hire lawyers to fight their case. Don't know if it ever came to court, or what happened.

Don't assume that septics are immune from these problems.

 

[Fr J Hackett]

I'm forgetting who did what. Whether it was the Belgians or the Germans, but IIRC two(?) American boats faced fines for red diesel. They were prepared to hire lawyers to fight their case. Don't know if it ever came to court, or what happened.

Don't assume that septics are immune from these problems.

I think I read that some of the fine had been repaid and there were still legal wrangling going on, it was Germany and the captains and owners wanted to keep it low profile.

 

[Tranona]

But (as you're probably only too well aware!) there is no such EU directive! There are two directives posibly relevant:

1. COUNCIL DIRECTIVE 2003/96/EC, see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:283:0051:0070:EN:PDF which does not mention red (aka 'marked') fuel at all. It merely states that all fuel used for propulsion must be taxed at at least 330 euros per 1000 litres. I believe that the UK is fully compliant with this (we pay at least this much tax on every litre used for propulsion, and take receipts with us to prove it).

2. COUNCIL DIRECTIVE 95/60/EC (which pre-dates the above one by ~8 years), see http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31995L0060&from=EN which requires member states to add die to all non-taxed fuel. Interestingly it's silent about adding die to taxed fuel, but in any case says Member States may allow exceptions to the application of the fiscal marker provided for in paragraph 1 on grounds of public health or safety or for other technical reasons, provided they take appropriate fiscal supervision measures. As I understand it the UK argues that (i) the directive says nothing about adding die to taked fuel, and (ii) due to our long coastline and variety of small ports in such places at the NW of Scotland, we do have adequate technical reasons to continue to allow yachts to use marked fuel, provided that duty has been paid as per directive 2003/96/EC.

Now just because these are EU directives doesn't mean they have any power. They have to be enacted into national law to take effect, andI imagine that all states have done so, certainly both the UK and Belgium. So to take action under any directive a nation state has to apply its own law. What would be really useful in this case would be to get a copy of the actual act of (Belgian) parliarment, to see whetehr they have drafted it in contravention of the relevant EU directive,or, more likely, some officials have decided to interpret it in a manner which is stricter than the EU directive: it's hard to see how national law in one state can cover the directive's clause allowing technical reasons until such time as there has been a ruling in the ECJ. And there hasn't yet been one, so it's my assertion that Belgium is itself in breach of the EU directive.

But, if I may suggest, humphing about the EU and how dreadful it is is most unliekly to lead to any resolution at all, let alone one we'd be happy with. But fighting back with counter-claim that Belgium is acting in breach of EU directives on free movement of people and services, and additionally is acting in breach of IMO agreements on shipping, is, imho, much more likely to prove fruitful.

you have summarised it well.

That is the whole point of the UK case before the ECJ. HMG is relying 95/60/EC which states that it is a tax issue and our law and regulations are written to meet that. Belgium is relying on the later 2003/96/EC and has written its law to reflect marking as being the discriminant.

Until the ECJ rules both states are right (or wrong).

 

[Lon nan Gruagach]

OK - found it :

"Well, at least this bit is clearly defined - you need to dilute 75:1 with white diesel to get below the threshold - so it really is not feasible to do it in even two steps with a 30 gallon tank - you would need to run it down to less than half a gallon - certainly running a serious risk of running out of fuel, probably sucking all sorts of gunge out to the bottom of the tank and into your engine and, probably, not even possible since the dip tube probably does not get close enough to the bottom of the tank. I think that the concensus from Belgium - where they have already done this - is that it takes at least three cycles of running it almost empty, then filling up almost completely to get there."

Sir, your maths needs a bit of revision...
if you dilute 9:1 twice you end up with 81:1 so in 2 steps you would need to empty a 30 gallon tank to just under 3 1/2 gallons to do the job.

And, if you only half empty a tank before refilling then you would need to do it 7 times.

 

[jdc]

You may be correct in how they have enacted the directive into Belgian law, here is a post from the East Coast discussion that refers to the "Royal Decree" ...

That was extremely helpful, thank you. Digging in, I found:

28 JUIN 2015. - Arrêté royal concernant la taxation des produits énergétiques et de l'électricité
numac 2015003213
pub. 23/07/2015
prom. 28/06/2015

"Art. 54.Les carburants liquides, présents dans le pays, détenus, vendus ou utilisés :
… 2° pour l’alimentation des moteurs à explosion ou des moteurs à combustion interne installés sur des bateaux de plaisance privés visés à l'article 429, § 2, g), de la loi, pour la navigation sur des voies navigables intérieures ou dans des eaux communautaires, ne peuvent contenir ni dénaturant ni marqueur."

It's domestic law in Belgium, not an EU directive. It's quite clear, although it may itself be in violation of EU laws or directives (not the same thing), so nothing can to be done to argue around it. So either one obeys it or one doesn't go there (I shall not be going). To obey it one has two options I think:
1. go there from a non-EU place, and declare that one will leave for a non-EU destination. May be difficult to prove (for a year or two yet), or
2. go there with an auxiliary tank of containing un-marked road diesel and which is plumbed to the engine. This act does not make it illegal to have red fuel aboard but disallows its use. As it's only Belgian domestic law they can only apply it in their own waters. How much fuel does one need to get from the edge of Belgian domestic waters to a port? 6 litres? Most of us should be able to fit an auxiliary tank this size I think.

Of course this means that the OP's question is very much apposite!

 

[Tomahawk]

And very publicly,

...... Would they fine a USA boat I wonder?

I read an article on the Triton of a us vessel being fined... it was more of a superhacnt than one of our size.