Can offshore wind farms be mortgaged under Belgian law ?

Home / Belgium / Can offshore wind farms be mortgaged under Belgian law ?

April 23, 2010 /

[1]

Guido De Latte   [2]


Introduction

1. In June 2009 the first Belgian offshore wind farm on the North Sea was inaugurated. It is a project developed by the C-Power consortium[3]. By the end of 2009 the construction of 6 turbines was completed. 48 more turbines are to be built eventually. The wind farm is situated 27 to 30 kilometres off the Belgian eastern coast on the Thornton Bank. The turbines are fixed to the floor of the North Sea.

2. In the meantime, the Belgian company NV Belwind[4]has started building another offshore wind farm on the North Sea. Belwind has to construct 110 turbines[5]at a distance of 46 km off the Belgian coast, on a sandbank called Bligh Bank (situated 15 till 37 m below sea level). The turbines will be fixed to the seabed via foundation too.

Lastly, in December 2009 a concesson was granted to the Eldepasco consortium for the construction of a third offshore wind farm to be located on a sandbank called ‘Bank Zonder Naam’ (Bank Without A Name), approximately 37 km off the Belgian coast, in between the C-Power and Belwind farms. The surface area of the Eldepasco wind farm will roughly cover 15 km². Dependent upon the type of turbine to be selected, this third wind farm will consist of 36 to 72 turbines . These wind turbines, too, will be fixed to the soil underneath the North Sea by foundation.

3.This paper examines whether these wind turbines are Belgian immovables which can be mortgaged under Belgian law.

Legislation and regulations regarding the Belgian Exclusive Economic Zone (EEZ)

A. Unclos

4. Belgium has ratified the United Nations Convention on the Law of the Sea done at Montego Bay on December 10, 1982 ( hereinafter ‘Unclos’) by an act[6]passed on June 18, 1998.

According to article 55 of Unclos the exclusive economic zone (hereinafter ‘EEZ’) is “an area beyond and adjacent to the territorial sea” subject to a special legal regime.

5. Under article 57 of Unclos the EEZ does not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured ( i.e. from the coast line).

6. Article 60 of Unclos provides as follows:

 1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:
(a) artificial islands;
(b) installations and structures for the purposes provided for in article 56 and other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.
2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.
3. Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. Any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization.
Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States.

Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed.
4. The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.
5. The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization.
Due notice shall be given of the extent of safety zones.
6. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.
7. Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.
8. Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

B. Act of 22 April 1999

7. The Belgian act of 22 April 1999 relating to the exclusive economic zone[7](hereinafter referred to as ‘EEZ Act’) has created the Belgian EEZ.

8. Articles 2 and 3 of the EEZ Act provide that the Belgian EEZ :

  • – contains the waters superjacent to the seabed, the seabed and its subsoil;
    – covers a part of the North Sea extending between the outer limit of the Belgian territorial sea and a specific EEZ outer limit which is a line formed by the segments connecting the under article 3 of the act indicated coordination points.

9. Article 4 of the EEZ Act provides that the Kingdom of Belgium has:

A. sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

B. jurisdiction with regard to:

a. the establishment and use of artificial islands, installations and structures;
b. marine scientific research;
c. the protection and preservation of the marine environment;

D. other rights under international law.

10. It is noted that the sovereign rights ‘for the purpose of exploring and exploiting’ as referred to in article 4, 1°, basically are economic rights, which are quite different from rights of sovereignty over the territorial sea, in that they are well determined specific rights and do not imply any general jurisdiction including all non enumerated competences, as this general jurisdiction applies in the case of the sovereignty over the territorial sea[8].

11. Under article 37 of the EEZ Act Belgium has exclusive jurisdiction over artificial islands, installations and structures, situated in the Belgian EEZ, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. Belgian sovereignty over the territorial sea extends to the artificial islands, installations and structures located in the territorial sea.

12. The provisions of the act of 13 June 1969 regarding the exploration and exploitation of non-living resources of the territorial sea and of the continental shelf[9]have been made applicable by article 38 of the EEZ Act to the artificial islands, installations and structures situated in the EEZ and used for the purpose of exploring and exploiting living and non-living natural resources as well as for other purposes.

Pursuant to the provisions concerned a concession needs to be granted for the establishment and exploitation of the artificial islands, installations and structures; safety zones may be established too.

C. Royal decree of 20 December 2000

13. A royal decree of 20 December 2000[10]determines the conditions and procedure regarding allocation of concessions for the construction and exploitation of installations for the production of electricity from the water, rivers or winds, in the marine areas over which Belgium has jurisdiction under the international law of the sea. This decree was amended by royal decrees[11]of 17 May 2004 and 18 September 2008.

14. Special attention is Drawn to the following provisions of the decree[12]:

Art. 13. The domain concession is granted for a fixed term, which may not exceed twenty years. It may be extended indefinitely without the total term exceeding thirty years.

Art. 20. The request to sell, partially or totally transfer, partition and lease the concession shall be notified to the official authorised by the Minister. The concession holder must not execute this plan, unless a term of 50 working days has expired, during which term the minister – after having been advised by the commission and on the proposal of the authorised official – may notify the concession holder that this operation is not compatible with the concession being maintained. The would-be transferee is subject to the selection criteria summed up in article 2. The obligations and conditions relating to the concession are opposable to the new interested party.

Art. 21. The rights attached to the concession come to an end as a result of the concession having expired or of the title being rescinded because of the cancellation or the renunciation by the concession holder.

Art. 24. Whereas the concession has expired or has been rescinded because of cancellation or renunciation, the concession holder shall execute on his own responsibility the measures prescribed for the final decommissioning and removal of the installation, for the safety of the zone concerned and for the preservation and protection of the marine environment. If the Minister – after having been advised by the administrations and commission concerned – agrees thereto, and depending upon the technical developments, other measures than those prescribed at the time of allocation of the concession may also be applied so far as those measures guarantee equal results.

15. The concessions for the existing offshore wind farm projects were granted in pursuance of the aforementioned royal decree.

Findings

16. It appears that the wind farms on the “Bligh Bank”, “Thornton Bank” and “Bank Zonder Naam” are:

a. immovables, taking the factual situation (their being permanently attached to the seabed) into account; article 519 of the Belgian civil code – though only applicable inside the Belgian territory – stipulates that “windmills or watermills built on piles, and the construction that is part of them, are immovables”; however, professor Dr. Christian ENGELS of the Ghent University who was so kind to read this article before publication, holds the opinion that these wind turbines are not immovables at all, since the ownership aspect of the “soil” (i.e. the seabed) is missing; he refers to articles he has published with regard to the problem of goods being or having become immovables as a result of incorporation or use; in the opinion of Engels not only the ownership aspect of the wind turbine is to be taken into account but also the ownership aspect of the soil on which the turbines have been built[13]; this follows according to Engels from the double presumption established by article 553 of the civil code[14]and confirmed by article 45bis of the land mortgage act[15]; it is essential for Engels that the owner of the wind turbines is not the owner of the banks the turbines are or will be built upon;

b. located outside the Belgian territorial sea which extends no farther than 12 nautical miles or 22.224 km from the coast line;

c. the first wind farms in Europe which – to the knowledge of the author – are built that far offshore; the decisions the Belgian legislator and the Belgian administration are to make with respect to these wind farms, are likely to constitute a precedent.

Position taken by the Comité Maritime International

17. Since 1897 the Comité Maritime International (hereinafter ‘CMI’)[16]has played an important role in the unification of the international law of the sea. Its assistance in Drafting and preparing new maritime conventions has been very valuable to the International Maritime Organisation (IMO) and to the maritime world at large.

Over the years, the CMI has also devoted its attention to the feasibility of an offshore units[17] convention.

18. From the different texts[18]produced by a special CMI working group dealing with the issue of offshore structures, it seems that the following points which are quoted from the relevant CMI Yearbooks, should be retained:

– Article 60 Clause 60(8) of UNCLOS means that fixed structures and artificial islands cannot be regarded as part of state territory unless located in the Territorial Sea. Therefore one cannot apply domestic law respecting property rights in immovables to artificial islands simply by the legal principle of accession to the soil. Unilateral attempts by national governments to extend property laws of general application to structures outside the territorial sea could be subject to challenge under international law or risk of non-recognition by courts of other states. Therefore a specific legal regime is needed for property in fixed structures and artificial islands[19].
– The question whether or not an offshore unit is a ship has bedevilled discussion of this subject for many years. It is the view of the Subcommittee that the term offshore unit is to be preferred to cover both fixed and mobile modes[20] .
– Adoption of a general principle that all offshore units be registered would permit the stable and predictable application of rules for the granting of mortgages or hypothecs in offshore units[21].
– All offshore units should have a nationality. This would permit the clear application of the law of property of the flag under which units are registered. It is undesirable that unregistered or stateless offshore units be permitted to operate outside internal waters without some juridical connection to a state and its legal system (…)[22] .
– The international regime should provide for the registration by flag states of ownership and mortgage or hypothec interest in offshore units. It is immaterial whether such units are registered as ships, or in specialised registries established for that purpose[23] .

Position taken by foreign registries

A. The Netherlands

19. Mr. Z.Klaasse, senior adviser to the Dutch Cadastre in Apeldoorn, has given the following opinion[24]:

In the Netherlands we would enter this kind of deed (i.e. a deed of mortgage against an offshore wind farm) on the register of provisional annotations. This means that the registrar has refused to register the deed, because it relates to an immovable outside the Netherlands. The provisional annotation entitles the applicant to summon the registrar within a fortnight so as to have the court order the registration of the deed. An immediate judgment of the court can be applied for. It is then up to the judge to decide.
(…)
If I were to have to sort out this problem in Belgium (i.e. application for registration of a mortgage deed regarding an offshore wind farm) I might proceed as follows: I would advise to register the wind farm as a ship, under the resolutive condition that it appears not to be a ship. If the bank objects, you could Drop the condition.
It would in any case be quite impossible to register an immovable located outside the Belgian territory, since Belgian law obviously cannot be applicable there.
(…)

B. Scotland

20. Mrs. Susan MacInnes of Registers of Scotland wrote the following opinion:
Here at Registers of Scotland we are currently considering whether we have the authority to register title to the seabed (and therefore any structure situated on the seabed) within the 12 mile limit of territorial waters. The definition of land in the legislation governing our land registers includes land covered with water.

It is accepted that the Crown has ownership of the seabed and therefore in theory that interest could be alienated by lease. A lease of at least 20 years can be registered in our Land Register to give a real right. Therefore a mortgage could be granted over that lease and thus registered in the Land Register. However, in practice this has never happened.

It should be noted that the Crown’s right of ownership[25]over the seabed is a prerogative one and it is qualified by the public’s rights to use the sea and foreshore. For example there is a special statute permitting an offshore wind farm giving authority for works obstructing navigation and fishing in the sea.
(…)
We understand that the Land Registration legislation in England does not include territorial waters and so they cannot register title to the seabed.

C.Germany

21. The opinion of Mr. Christian Dahlke of the ‘Bundesamt für Seeschiffahrt und HyDrographie (BSH)’ is as follows[26]:
You enquire whether in the German Exclusive Economic Zone (EEZ) security interests, mortgages or other similar charges could be created over wind farms.

The German EEZ is not part of Germany‘s sovereign territory. It belongs to nobody. Therefore there are no EEZ land parcels against which security interests such as mortgages can be created.

The wind farms might be used to secure claims, though. Under German civil law a fiduciary transfer or a pledge of the wind farm could be resorted to.

D.France

22. Mr. Jean-Pierre Laval, secretary general of the French Association of Land Registrars (« Association des Conservateurs des Hypothèques – AMC ») gave the following opinion[27]:

1 – The AMC never had to deal with problems regarding the establishment of offshore wind mills.

2 – The AMC cannot give you an authorised opinion about the hypothesis of assimilating wind farms to ships, as neither the association nor the French Land Registration Service has any competence for maritime mortgages.

3 – Nevertheless, a land mortgage seems totally out of the question under French law, in the situation referred to, unless specific and derogative legislative measures, which do not exist at this moment, are taken.
The establishment of a wind farm in the public marine domain, even in an area for which the French state has jurisdiction, cannot, indeed, result in the creation of a right ‘in rem’ that may be mortgaged.
It is true that the act No 94-631 of 25 July 1994 and the decree of 6 May 1995 have allowed for the issuance of permits to occupy the public domain of the State, which permits create rights ‘in rem’ and must be published pursuant to article 28-1-c of the decree of 4 January 1955. But this act (of 25 July 1994) refers only to the artificial public domain (e.g. port installations on land) and expressly excludes the natural public domain.

To conclude, an immovable security interest ‘in rem’ (i.e. a land mortgage) cannot be created under French law against an offshore wind farm – be it an immovable installation (with a foundation in the seabed) or a movable one (simple moored to a location).

Land mortgage

23. A Belgian land mortgage evidently can only be registered against a Belgian immovable, being an immovable situated inside the Belgian territory (the Belgian territorial sea possibly included[28]).
The wind farms concerned are located outside the Belgian territorial waters and are, by way of consequence, not immovables which would be eligible for mortgage under Belgian law.
In the event of the wind turbines not being immovables at all[29], there is a priori no possibility to have any land mortgage registered against them.

24. If a Belgian land mortgage were – in defiance of all logic – registered against the EEZ offshore wind farms concerned, and if a foreclosure and concourse of creditors (as a result of bankruptcy, seizure etc.) would come about, the creditors other than the mortgagees or any other interested party would be very likely to successfully file a claim with the court for the annulment or the non-enforceability / non-effectiveness of the Belgian EEZ land mortgages, in which case the Belgian State, the notary and the land registrar involved would be liable for payment of huge compensation sums. It is general knowledge that the investments needed to finance these offshore wind farms run into tens of millions of euros.

Ship mortgage  [30]

25. Under present Belgian law a ship mortgage is only to be registered against seagoing vessels which have been registered before on the register of seagoing ships[31].
According to art. 1, §1, 1°, of the ship registration act of 21 December 1990[32] a ship can only mean[33]:
“any floating craft, self-propelled or not, with or without any water displacement, used or fit to be used as a means of locomotion, in, above or under the water, including the installations not permanently attached to the shore or to the soil; a ship under construction is considered to be a ship as soon as the building contract has been signed”.

26. It follows that only floating[34]structures on sea (‘mobile offshore structures’) may be registered and mortgaged.

Conclusion and proposal

27. It appears from what precedes that under Belgian law a land mortgage cannot be created against EEZ offshore wind farms.

Under the existing Belgian ship registration act a ship mortgage could not be registered against these wind farms either.

28. As the authoritative CMI suggests (see IV supra) it is recommended that these wind farms and other similar installations and artificial islands should be registered on a ship register or on another analogous specific register in order to provide these offshore structures with a nationality and to allow for the documents of title[35]of these structures to be registered as well as for deeds of «hypothèque maritime»[36]to be registered against them.

The registration of the offshore structures would in that case be applied for by the owner(s) of the structures, thereby opting clearly for the Belgian flag.

29. A registration on the register of seagoing ships seems to be the obvious solution.
Such a registration has the advantage that no other register needs to be created and that the existing legislation and decrees could be made applicable[37].

If the option of registration on the register of seagoing ships is retained, there will be no doubt about the validity of the mortgage or about registration duties having to be paid on the mortgage deed[38.

This solution would also allow for the offshore wind farms to be prefinanced, as registration of the offshore structure and of the ship mortgage created against it would be feasible as soon as the building contract would have been signed[39].

30. Should an urgent solution be necessary[40], it would be sufficient to insert an article in a general act[41], providing that «the ship registration act of 21 December 1990, title I of the maritime act and the provisions of the judicial code relating to the arrest of seagoing ships shall apply to the artificial islands, installations and structures referred to in article 60,1, of the 1982 United Nations Convention on the Law of the Sea and located in the Belgian exclusive economic zone of the North Sea”.

[1]    This is the English translation and adaptation of a Dutch language paper published by the Belgian law
journal “Jurisprudence du Port d’Anvers / Rechtspraak van de Haven van Antwerpen” (January-February-March 2009 issue released in February 2010). The information dealt with in this paper was closed as of January 8, 2010. The paper intends to express the opinion of the author and does not commit the Belgian administration of the Cadastre, Registration and Public Property.

[2]    The author is Belgian ship mortgage registrar (in Dutch: scheepshypotheekbewaarder – in French: conservateur des hypothèques maritimes); he is also secretary of the non-profit organisation Royal Belgian Mortgage Registrars’ Federation (VZW Koninklijke Federatie der Hypotheekbewaarders van België / ASBL Fédération Royale des Conservateurs des Hypothèques de Belgique).

[3]    See www.c-power.be

[4]    See www.belwind.eu

[5]    See www.eldepasco.be

[6]    Official Belgian Journal (Belgisch Staatsblad / Moniteur belge) of 16 September 1999.

[7]   Belgian Official Journal (Belgisch Staatsblad/Moniteur belge) of 10 July 1999; see also: Guido De Latte, Teboekstelling en registratie van schepen, Antwerpen, Maklu, 2007 – No 277; as well as www.shipregistration.be

[8]     Bill (Wetsontwerp / Projet de loi) regarding the exclusive economic zone of Belgium in the North Sea, Motivation (Memorie van toelichting/Exposé des motifs), Parl.Doc. 1998-1999,  No 1902/1

[9]     Belgian Official Journal (Belgisch Staatsblad / Moniteur belge) of 8 October 1969; as this act was amended by article 26 through 36 of the EEZ Act; it is noted that the Belgian EEZ as a matter of fact coincides with the Belgian continental shelf, as instituted by an act of 13 June 1969.

[10]     Belgian Official Journal (Belgisch Staatsblad / Moniteur belge) of 30 December 2000

[11]     Belgian Official Journal (Belgisch Staatsblad / Moniteur belge) of 29 June 2004 and 30 October 2008

[12]     The text which follows is an unofficial translation from the official Dutch text.

[13]     See in this respect: C. Engels, “BeDrijfsuitrustingsgoederen – Het voorrecht van de onbetaalde verkoper en het faillissement: twee problemen”, in Liber amicorum Yvette Merchiers, Brugge, die Keure, 2001, 511-512, No 4-5; idem, “Immeuble et immeuble par destination”, in Liber amicorum Paul Delnoy, Brussel, Larcier, 2005, 218-222, No 2-8.

[14]     The French text of art.553 of the Belgian Civil Code reads as follows:

Toutes constructions, plantations et ouvrages sur un terrain ou dans l’intérieur, sont présumés faits par le propriétaire à ses frais et lui appartenir, si le contraire n’est prouvé; sans préjudice de la propriété qu’un tiers pourrait avoir acquise ou pourrait acquérir par prescription, soit d’un souterrain sous le bâtiment d’autrui, soit de toute autre partie du bâtiment.

[15]     The French text of art.45bis of the Belgian land mortgage act reads as follows:

L’hypothèque peut être constituée sur des bâtiments dont la construction est commencée, ou même seulement projetée, pourvu que celui qui confère l’hypothèque ait un Droit actuel lui permettant de construire à son profit.

[16]     www.comitemaritime.org

[17]     The CMI also uses the word “offshore structures”.

[18]     CMI Yearbook 1996 (p.105 through 165) & CMI Yearbook 1997 (p.159 through 178) & CMI Yearbook 1998 (p.145 through162) & CMI Yearbook 2004 (p.419 through 421)

[19]    CMI Yearbook 1997 – p.162- 1, 1.4. & CMI Yearbook 1998 – p.148, in fine (1.4.)

[20]    CMI Yearbook 1997 – p.162- 1, 1.5. & CMI Yearbook 1998 – p.149, 1.5.

[21]    CMI Yearbook 1997 – p.162, 1, 1.7. & CMI Yearbook 1998 – p.149, 1.7.

[22]    CMI Yearbook 1997- p.163 – 2, 2.2. & CMI Yearbook 1998 – p.149, 2.2.

[23]    CMI Yearbook 1997- p.163, 2, 2.3 & CMI Yearbook 1998 – p.149, 2.3.

[24]    The original Dutch text reads as follows:

In Nederland zouden wij zo’n akte (nl. akte hypotheek op windmolenpark) boeken in het register van voorlopige aantekeningen. Dat betekent dat de bewaarder hem heeft geweigerd in te schrijven, omdat het onroerend goed buiten Nederland betreft. Die boeking geeft de aanbieder het recht om binnen 14 dagen de bewaarder te dagvaarden in kort geding, met als eis dat de bewaarder alsnog moet inschrijven. De rechter beslist dan.

(…)

Misschien zou ik – als ik in België met de genoemde kwestie geconfronteerd werd – het volgende doen: ik zou adviseren het windmolenpark als schip te boek te stellen onder de ontbindende voorwaarde dat het geen schip blijkt te zijn. Als de bank daar problemen mee heeft, kun je die voorwaarde weglaten. Maar een onroerende zaak buiten het rechtsgebied van België inschrijven, lijkt mij een onmogelijke zaak, omdat het Belgisch recht daar niet van toepassing is.

(…)

[25]    Ownership relating of course to the seabed underneath the territorial sea.

[26]    The original German text reads as follows:

Sie erkundigen sich, ob in der deutschen ausschließlichen Wirtschaftszone (AWZ) Sicherungsrechte an den Windenergieanlagen oder Hypotheken oder ähnliches begründet werden können.

Die deutsche AWZ ist kein deutsches Hoheitsgebiet, gehört also niemandem, so dass es auch keine AWZ-Grundstücke gibt, an denen dingliche Sicherungsrechte, wie etwa Hypotheken, bestellt werden können.

Es könnte möglich sein, an den Windenergieanlagen Sicherheiten zu bestellen. Dies könnten nach deutschem Zivilrecht eine Sicherungsübereignung oder eine Verpfändung der Windenergieanlage sein.

[27]    The original French text reads as follows :

1 – L’AMC n’a pas eu à connaître de problèmes portant sur l’implantation en mer d’un parc à éoliennes.

2 – L’AMC ne peut vous donner un avis autorisé sur l’hypothèse d’une assimilation des parcs à éoliennes à des navires, les hypothèques maritimes n’étant pas de sa compétence ni, au demeurant, de celle du Service de la publicité foncière français.

3 – Néanmoins, au regard du Droit français, une hypothèque « foncière » semble totalement exclue dans la situation évoquée, sauf mesure législative spécifique et dérogatoire qui n’existe pas.

En effet, une telle implantation d’un parc à éoliennes sur le domaine public naturel que constitue la mer, même en zone de compétence de l’Etat français, est exclusive de toute possibilité de constituer un Droit réel susceptible d’hypothèque.

Si la loi n° 94-631 du 25 juillet 1994 et le décret du 6 mai 1995 ont permis la délivrance de titres d’occupation du domaine public de l’Etat constitutifs de Droit réel, obligatoirement publiés en vertu de l’article 28-1-c du décret du 4 janvier 1955, cette loi ne vise que le domaine public artificiel (les équipements terrestres portuaires par ex.) et elle exclut expressément  le domaine public naturel.

En conclusion, qu’il s’agisse d’un équipement de nature immobilière (fondations dans les fonds marins d’un élément fixe) ou mobilière (simple arrimage), un parc à éoliennes maritime  ne peut en Droit français donner lieu à constitution de sûreté réelle immobilière.

[28]    It goes without saying that prior to the effective registration of any land mortgage on the sea floor beneath the territorial sea the Belgian legislator would have to elaborate a detailed regulation as regards: land survey of the sea floor, parcel identification, designation of a competent land registry etc.

[29]    See the point of view held by professor Engels – mentioned under point 16/a of this paper.

[30]    For additional information about the legislation and regulations regarding ship mortgages in Belgium, see:

Guido De Latte, Zakelijke rechten en hypotheken op schepen, Mechelen, Kluwer, 2006;

See also: www.shipregistration.be; Guido De Latte, Hypothèques maritimes et fluviales, published in the review of the Belgian Federation of Notaries “Notamus” 3/2008

[31]    “A deed is not eligible for registration unless the ship is registered on the register of seagoing ships” (unofficial translation of Belgian maritime act, art.11); for additional information about the legislation and regulations regarding registration of ships,see: Guido De Latte, Teboekstelling en registratie van schepen, Antwerpen, Maklu 2007

[32]    Belgian Official Journal (Belgisch Staatsblad/Moniteur belge) of 29 December 1990

[33]   The English text is an unofficial translation of the official Dutch text.

[34]    The Belgian register of seagoing ships contains several so-called ‘self elevating platforms’ owned by Dredging companies. From 1985 till 1995 the Drilling platformYatzy also was registered on the Belgian register (under registration No 03.16606.1985).

[35]    The documents of title would consist of the building contracts of the wind turbines, to be supported/accompanied by the relevant concession agreements.

[36] Literally meaning “marine hypothec”- which is perfectly applicable in this case.

[37]    Afterwards the ship registration decree of 4 April 1996 clearly would have to be amended, as regards the particulars of the structures to be supplied (art.13), the attachment/documentation evidencing these particulars (art.21 and art.23) and the exclusion of certain articles which can only apply to real seagoing ships (e.g. regarding bareboat charters and certificates of registry).

[38]    The registration duty for ship mortgage deeds is 0.5% over the amounts to be secured (registration duties code, art.88).

[39]    See definition of ‘ship’ and ‘ship under construction’ according to the ship registration act as mentioned under point 25 of this paper.

[40]    At this time a royal commission presided by professor Dr. Eric Van Hooydonk is preparing a new maritime act
www.zeerecht.be or www.Droitmaritime.be; in this new maritime act there could be inserted an article aiming at assimilating the offshore wind turbines and other offshore structures and artificial islands – at least as regards registration, mortgage and arrest – to seagoing ships.

[41]    Such a general act aiming at dealing with all kinds of legal subjects is called in Belgium a “programmawet” (Dutch) or a “loi-programme” (French).