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12 MAI 2014. - Regulated Real Estate Corporations Act (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in articles 77 and 78 of the Constitution.
Art. 2. For the purposes of this Act and the decrees and regulations made for its execution, it is understood that:
1° by "regulated real estate company" :
i. an indeterminate corporation;
ii. whose activity is that referred to in section 4; and
iii. which is approved as such by FSMA;
2° by "public regulated real estate company" (in short, "SIRP"): a regulated real estate company whose shares are admitted to negotiations on a regulated market and which collects its financial means, in Belgium or abroad, through a public offer of shares;
3° by "institutional regulated real estate company" (in short, "SIRI"): a regulated real estate company, which is under the exclusive or joint control of a public regulated real estate company, which collects its financial means, in Belgium or abroad, exclusively from eligible investors acting on their own account, and whose securities can only be acquired by such investors;
4° real estate company: the company of Belgian law or foreign law whose main social object is the construction, acquisition, management, development or sale, as well as the rental of real estate on its own account, or the detention of participations in companies with a similar object;
5° real estate :
i. immovables as defined in sections 517 et seq. of the Civil Code and real property rights, excluding logging, agricultural or mining buildings;
ii. shares or shares with voting rights issued by real estate companies, controlled exclusively or jointly by the SIRP concerned;
iii. option rights on real property;
iv. the shares of SIRP or SIRI, provided in the latter case that a joint or exclusive control is exercised on the latter by the SIRP concerned;
v. rights arising from contracts giving one or more properties for financial lease to the SIR or conferring other similar rights of use;
vi. public sicafi actions;
vii. the shares of foreign collective investment organizations listed in section 260 of the Act of 19 April 2014;
viii. the shares of real estate collective investment organizations established in another Member State of the European Economic Area and not included in the list referred to in Article 260 of the Act of 19 April 2014, to the extent that they are subject to control equal to that applicable to public sicafi;
ix. shares or shares issued by companies (i) with legal personality; (ii) under the right of another Member State of the European Economic Area; (iii) whose shares are admitted to negotiations on a regulated market and/or subject to prudential control; (iv) having as its principal activity the acquisition or construction of buildings for the provision of users, or the direct or indirect detention of participations in companies with similar activity; and (v) that are exempted from income tax with respect to profits from the activity referred to in (iv) above subject to compliance with constraints, at least with the legal obligation to distribute part of their income to their shareholders (hereinafter the "Real Estate Investment Trusts", shortened "REIT's");
x. the real estate certificates referred to in Article 5, § 4 of the Law of 16 June 2006;
6° making buildings available to a user by a SIR: the granting by a SIR of rights to the user of a building under a lease, usufruct, emphytheosis, surface or other contract conferring a right of occupancy or disposal, directly or by a subsidiary held in accordance with the provisions of this Act and any orders and regulations made and
7° finance rental: financial lease, as set out in IFRS;
8° Securities: securities defined in section 2, 31° of the Act of 2 August 2002;
9° authorized coverage instruments: financial instruments referred to in section 2, 1°, (d) of the Act of 2 August 2002 exclusively to cover the risk of interest and exchange rates as part of the financing and management of real property of the IRS;
10° public real estate sicaf (in abbreviated, "public pacif"): the alternative collective investment body of Belgian law referred to in sections 193 and 195 of the Act of 19 April 2014, the exclusive object of which is the collective placement in the class of authorized investments referred to in section 183, paragraph 1^er3° of the Act of 19 April 2014;
11° institutional real estate sicaf (in abbreviated, "institutional pacif"): the alternative collective investment organization of Belgian law referred to in articles 286 and 288 of the Act of 19 April 2014, the exclusive object of which is the collective placement in the class of authorized investments referred to in article 183, paragraph 1^er3° of the Act of 19 April 2014;
12° Expert: the real estate expert(s) designated by the SIR under section 24;
13° proponents of the SIRP: subject to section 22, persons who control exclusively or jointly the SIRP or who control exclusively or jointly the corporate manager of the SIRP having adopted the form of a share-sponsored corporation;
14° control: control as defined in Articles 5 et seq. of the Corporate Code;
15° joint control: joint control as defined in Article 9 of the Corporate Code;
16° exclusive control: exclusive control as defined in Article 8 of the Corporate Code;
17° person acting in concert: the person acting in concert, as defined in Article 3, § 1^er13° of the law of 2 May 2007;
18° subsidiary: the subsidiary, as defined in Article 6, 2° of the Corporate Code;
19° joint subsidiary: the joint subsidiary, as defined in Article 9, paragraph 2 of the Corporate Code;
20° related persons: persons referred to in Article 11 of the Corporate Code;
21° participation: participation as defined in Article 13 of the Corporate Code;
22° companies with which there is a link of participation: companies referred to in Article 14 of the Corporate Code;
23° net value per share: value obtained by dividing the consolidated net assets of the IRS, deducting minority interests, or, if not consolidating, the net assets at the statutory level, by the number of shares issued by the IRS, deducting shares held, if applicable at the consolidated level;
24° IFRS standards: international accounting standards approved by the European Commission pursuant to Article 3 of Regulation (EC) No 1606/2002; and
25° by "regulated market": any regulated, Belgian or foreign market referred to in article 2, 3°, 5°, or 6°, of the law of 2 August 2002;
26° by "public offer": any public offer within the meaning of the law of 16 June 2006;
27° by "eligible investor": any eligible investor within the meaning of Article 3, 31° of the Act of 19 April 2014;
28° by "close links" :
(a) a situation in which there is a link of participation; or
(b) a situation in which companies are related enterprises; or
(c) a relationship of the same nature as under (a) and (b) above between a natural person and a legal person;
29° by "multilateral trading system (Multilateral trading facility - MTF)": a multilateral system, operated by an investment company, a credit institution or a market company, which ensures the meeting within itself and according to non-discretionary rules of multiple buyer and seller interests expressed by third parties for financial instruments, in a way that leads to the conclusion of contracts in accordance with the provisions of Chapter 2 of the Act of 2 August 2002/39/
30° "independent control function": internal audit function, compliance function, or risk management function;
31° by "FSMA": the Autorité des services et marchés financiers, referred to in Article 44 of the Act of 2 August 2002;
32° By "BNB": the National Bank of Belgium, subject to the law of 22 February 1998 establishing the organic status of the National Bank of Belgium;
33° by "Law of July 22, 1953": the law of July 22, 1953 creating an Institute of Directors of Entry and organizing public supervision of the profession of company reviewer;
34° by "Law of 2 August 2002": the Act of 2 August 2002 on financial sector monitoring and financial services;
35° by "Law of June 16, 2006": the Act of June 16, 2006 on public tenders of investment instruments and admissions of trading instruments in regulated markets;
36° by "Law of August 3, 2012": the Act of August 3, 2012 on certain forms of collective investment portfolio management;
37° by "Law of April 25, 2014": the Law of April 25, 2014 on the Status and Control of Credit Institutions;
38° by "Law of April 19, 2014": the Act of April 19, 2014 on alternative collective investment organizations and their managers;
39° by "Royal Decree of 7 March 2006": the Royal Decree of 7 March 2006 on securities loans by certain collective investment agencies;
PART II. - Provisions relating to publicly regulated real estate companies
Art. 3. This title regulates the regime applicable to publicly regulated real estate companies.
CHAPTER I^er. - Authorized activity
Art. 4. § 1^er. The public regulated real estate company has an exclusive activity
(a) to make, directly or through a corporation in which it holds an interest in accordance with the provisions of this Act and the orders and regulations made for its execution, buildings available to users; and
(b), if applicable and within the limits of Article 7, (b), hold the real property referred to in Article 2, 5°, vi to x.
As part of the provision of buildings, the public regulated real estate company may, in particular, carry out all activities related to the construction, development, development, acquisition, assignment, management and operation of buildings.
§ 2. The public regulated real estate company is pursuing a strategy to hold its real estate for a long time.
The public regulated real estate company operates with an active management approach, in particular to carry out the day-to-day development and management of buildings as well as any other activities that add value to these same buildings or to their users, such as the provision of complementary services to the provision of the buildings concerned.
For this purpose, the public regulated real estate company:
(a) carry out its own activities without delegating in any way the exercise to a third party other than a related corporation, in accordance with sections 19 and 34;
(b) has direct relations with its customers and suppliers;
(c) has, for the purpose of carrying out its activities in the manner defined in this section, operational teams representing a substantial part of its staff.
The previous paragraph does not prejudice the ability of the public regulated real estate company to use external supplier benefits for certain tasks related to its activities, provided that liability and coordination remain effectively located within the public regulated real estate company.
§ 3. The King, by order deliberately in the Council of Ministers taken on the advice of FSMA, may adapt, supplement or detail the criteria set out in paragraph 2, according to the directives and recommendations of the European Financial Markets Authority.
Where applicable, it sets out the time limit for publicly regulated real estate companies to meet the criteria determined under paragraph 1^er.
Art. 5. The King determines, by Royal Decree taken on the advice of FSMA, whether and to what extent the public regulated real estate company may enter into financial leases.
Art. 6. The subsidiaries of the publicly regulated real estate company may, under the following conditions, prescribe real estate management services to third parties:
1° the subsidiary is owned by the public regulated real estate company concerned in accordance with the provisions of this Act and the orders and regulations made for its execution;
2° the subsidiary does not have the status of an institutional regulated real estate company and the provision of the services concerned is permitted under the law to which it is subject and its statutes;
3° the provision of the services concerned is fully assumed by the subsidiary;
4° the pre-tax income of the subsidiary may not exceed 10% of the consolidated income before taxes and changes in the fair value of buildings and financial assets and liabilities of the public regulated real estate company;
5° the total of assets under management cannot exceed 10% of the consolidated assets of the publicly regulated real estate company;
6° the services presumed are not to carry out real estate promotion or any other activity otherwise prohibited by this Act and the orders and regulations made for its execution;
7° the liability of the subsidiary concerned is covered by an adequate insurance policy;
8° the management activity may not relate to assets that have been transferred to the third party concerned, or to a corporation that is related to it, by the public regulated real estate company or its subsidiaries, or on which they have granted them an area right, emphytéosis, or any other real right, or that have been given to them for rent-financing;
9° neither the public regulated real estate company nor its affiliates can acquire one of the managed assets, or be conferred one of the rights mentioned in 8° by the concerned third party or by a related company;
10° the public regulated real estate company adopts a conflict of interest management policy with respect specifically to the activity referred to in this section. This policy includes measures that the public regulated real estate company adopts to avoid and resolve conflicts between the management of its real property and the exercise of the activity referred to in this section. This policy is published in its annual financial report.
Art. 7. Regulated public real estate companies and their subsidiaries may:
(a) in an incidental or temporary manner and within the limits and conditions established by the King, by order made on the advice of the FSMA, make investments in securities that do not constitute real property within the meaning of this Act and the orders and regulations made for its execution and hold unaffected assets;
(b) hold the real property referred to in Article 2, 5°, vi to x and the right of option on such assets, provided that the fair value of such assets does not exceed 20% of the consolidated assets of the public regulated real estate company.
Art. 8. The regulated public real estate company and its affiliates may, if their statutes permit them to, subscribe authorized coverage instruments, excluding any speculative transactions. These purchases or sales must be part of a financial risk coverage policy established by the public regulated real estate company. This financial risk coverage policy is published in the annual and semi-annual financial reports of the publicly regulated real estate company.
Sales of coverage instruments prior to maturity must be justified in annual or semi-annual financial reports, in light of the financial risk coverage policy referred to in the previous paragraph.
CHAPTER II. - Access to activity
Section 1^re. - Accreditation
Art. 9. § 1^er. Any corporation that wishes to operate under the status of a publicly regulated real estate corporation is required to apply for approval with the FSMA for that purpose.
§ 2. The application for approval shall be accompanied by a record that meets the conditions established by the MSDS and that it is satisfied with the conditions set out in this Act and by the decrees and regulations made for its execution.
The King, by order taken on the advice of FSMA, determines the contents of the accreditation file.
FSMA may request any additional information necessary to appraise the application for approval.
With a view to protecting the interests of investors, FSMA can match conditions.
§ 3. The FSMA agrees with the public regulated real estate company that meets the conditions set out in this Act and by the decrees and regulations made for its execution and whose statutes conform to these provisions. It lists the publicly regulated real estate company on the list of publicly regulated real estate companies. She decides on the application for approval within three months of the introduction of a complete file.
§ 4. Every year, FSMA sets out a list of publicly regulated real estate companies, approved under this Act. This list is published annually on its website. The changes to the list between two annual publications are made public at regular intervals on the FSMA website.
Art. 10. After its approval, the public regulated real estate company shall promptly notify the FSMA of any changes to the elements of the registration file.
On the basis of these new elements and any other information that it is aware of, the FSMA examines whether the conditions of registration of the publicly regulated real estate company are still met.
If FSMA considers that, in light of these new elements, the conditions of approval are no longer met, sections 64 and 66 are applicable.
Section 2. - Conditions of licence
A. Constitution and statutes
Art. 11. § 1^er. The public regulated real estate corporation is subject to the Code of Societies to the extent that it is not derogated from it by or under this Act.
§ 2. Social capital cannot be less than 1,200,000 euros. He must be fully released. For the purposes of section 634 of the Corporate Code, the minimum capital shall be the amount provided for in this subsection.
§ 3. Sections 111, 439, 448, 477 and 616 of the Corporate Code are not applicable.
The King may derogate from section 440 of the Corporate Code.
§ 4. The public regulated real estate company must have the form of an anonymous corporation or a share-sponsored corporation.
By derogation from Article 78 of the Code of Societies, the social name of the public regulated real estate company and all the documents emanating from it contain the mention "public regulated real estate company of Belgian law" or "public Belgian law company" or "Belgian law company" or its name is followed immediately by these words.
§ 5. Its statutory headquarters and central administration must be located in Belgium.
§ 6. It is constituted for an indefinite period.
Art. 12. § 1^er. The King, by order taken by the FSMA, determines the minimum content of the statutes.
Any proposed amendments to the statutes of the publicly regulated real estate company must be submitted to FSMA beforehand.
§ 2. FSMA shall verify the conformity of the statutes of the publicly regulated real estate company with the provisions of this Act and the orders and regulations made for its execution. FSMA shall notify the public regulated real estate company of its approval or refusal to approve the project amendment.
FSMA rules within two months of the introduction of a complete file.
B. Administration
Art. 13. The Board of Directors of the SIRP or, as the case may be, the Board of Directors of the SIRP that has adopted the form of a share-sponsored corporation is composed in such a way as to ensure management that meets the requirements of section 4. The Board of Directors shall have at least three independent members within the meaning of section 526ter of the Corporate Code.
In the event that the SIRP adopts the form of a share-sponsored corporation administered by a manager of a corporation, compliance with the criteria of section 526ter of the Corporations Code also appreciates itself as if the independent member concerned of the board of directors of the manager of a corporation was the director of the SIRP.
Art. 14. § 1^er. Members of the legal body for the administration of public regulated real estate companies, those responsible for the effective management and those responsible for independent control functions, are exclusively natural persons.
Persons referred to in paragraph 1^er must always have the necessary professional honesty and expertise to perform their duties.
§ 2. Paragraph 1^er does not prejudice the possibility for the public regulated real estate company having adopted the form of a share-sponsored corporation to designate as manager of a legal entity.
§ 3. The effective management of the public regulated real estate company must be entrusted to at least two natural persons.
§ 4. Publicly regulated real estate companies inform FSMA of the proposal to appoint members of the legal body of administration, persons responsible for effective management, and those responsible for independent oversight functions.
As part of the information required under paragraph 1^er, publicly regulated real estate companies communicate to the FSMA all the documents and information to enable it to assess whether the persons whose appointment is proposed have the necessary professional honesty and expertise to exercise their functions in accordance with § 1^erParagraph 2.
Paragraph 1^er is also applicable to the proposal to renew the appointment of the persons referred to in the proposal and to the non-renewal of their appointment, revocation or resignation.
The appointment of persons referred to in § 1^er is subject to prior approval by the MSDS.
When it comes to the proposed appointment that is proposed for the first time to a function referred to in § 1^er in a company controlled by FSMA in accordance with Article 45, § 1^er, 2°, of the law of 2 August 2002, FSMA consults the BNB.
The BNB will notify FSMA within one week of receipt of the notice request.
Regulated public real estate companies inform FSMA of the possible division of tasks between the members of the legal board of directors and the persons responsible for the effective management, as well as significant changes in this division of duties.
Significant changes in the allocation of tasks referred to in the preceding paragraph result in the application of paragraphs 1^er 4.
Art. 15. Members of the legal body of administration of the public regulated real estate company, those responsible for the effective management, as well as those responsible for independent control functions, cannot be found in one of the cases referred to in Article 20 of the Act of 25 April 2014.
Art. 16. The members of the legal body of administration, the persons responsible for the effective management and the persons responsible for the independent oversight functions of the manager of the corporate entity of the public regulated real estate company having adopted the form of a limited partnership, shall comply with the provisions of Articles 14 and 15.
C. Management structure and organization
Art. 17. § 1^er. For the purpose of carrying out the activities referred to in section 4, the public regulated real estate company has a clean management structure and an appropriate administrative, accounting, financial and technical organization to carry out its activities in accordance with section 4.
§ 2. The public regulated real estate company must organize adequate internal control, whose operation is evaluated at least once a year.
With respect to its administrative and accounting organization, the public regulated real estate company must organize an internal control system that provides a reasonable degree of certainty as to the reliability of the financial reporting process, so that, in particular, annual accounts and semi-annual accounts, as well as the annual report and semi-annual report, are consistent with the existing accounting regulations.
The King specifies, by order taken on the advice of the FSMA, what must be heard by adequate internal control.
§ 3. The public regulated real estate company takes the necessary measures to be able to have an adequate independent internal audit function on an ongoing basis.
The FSMA may grant exemptions to the provisions of paragraph 1 where the relevant public regulated real estate company determines that this requirement is not proportionate and appropriate in the light of the nature, scale and complexity of its activity, but without being able to deviate from the very obligation to have an internal audit function. FSMA may set specific conditions for the granting of these exemptions.
§ 4. The public regulated real estate company takes the necessary measures to be able to have an adequate independent compliance function permanently, to ensure that, by the public regulated real estate company, its administrators, its effective leaders, employees and agents, the rules of law relating to the integrity of the regulated real estate business.
The King specifies, by order taken on the advice of FSMA, what should be heard by appropriate independent compliance function. It may determine cases in which MSDS may grant exemptions from the provisions made under this paragraph.
§ 5. The public regulated real estate company must have an adequate risk management function and an appropriate risk management policy.
§ 6. The public regulated real estate company is developing an adequate integrity policy, which is regularly updated.
The public regulated real estate company must be structured and organized in such a way as to minimize the risk that conflicts of interest would adversely affect the interests of its shareholders.
§ 7. The persons responsible for the effective management of the public regulated real estate company shall, under the supervision of the board of directors, take the necessary measures to ensure compliance with the provisions of paragraphs 1 to 5.
Without prejudice to the provisions of the Code of Companies, the board of directors must control at least once a year if the publicly regulated real estate company complies with the provisions of paragraphs 1 to 5 and paragraph 1^er and takes note of the appropriate measures taken.
Effective management officials report at least once a year to the Board of Directors, the FSMA and the Approved Commissioner on compliance with paragraph 1^er and on the appropriate measures taken.
This information is transmitted to the FSMA and to the authorized commissioner on the terms and conditions that the FSMA determines.
§ 8. The Authorized Commissioner shall, in due course, provide the Board with a report on important issues arising in the course of its legal mission, and in particular on the serious deficiencies identified in the financial reporting process.
Art. 18. In publicly regulated real estate companies that have adopted the form of a share-sponsored corporation, the manager of a corporation or the publicly regulated real estate corporation itself, in accordance with the management structure adopted, meet section 17.
Art. 19. The SIRP and its subsidiaries can entrust their portfolio management to a related company specializing in real estate management. It must have an appropriate administrative, accounting, financial and technical organization for the management of the real property of the SIRP and its subsidiaries and the placement of real property. Directors and persons who in fact provide effective management must have the necessary professional honesty and the appropriate experience to perform these functions.
In the event that a subsidiary of the SIRP that does not own the entire capital, the SIRP is entrusted with the management of its real property to a third party referred to in paragraph 1^er, management costs must be borne by the said subsidiary.
D. Close links with other natural or legal persons
Art. 20. If there are close links between the public regulated real estate company and other natural or legal persons, these links cannot hinder the exercise of adequate control of the public regulated real estate company.
If the public regulated real estate company has close ties with a natural or legal person under the law of a non-member State of the European Economic Area, the legislative, regulatory and administrative provisions applicable to that person or their implementation cannot hinder the exercise of adequate control of the public regulated real estate company.
E. Public offer of actions
Art. 21. The shares of publicly regulated real estate companies are admitted to negotiations on a Belgian regulated market, no later than one year after registration on the list referred to in Article 9, § 4.
Art. 22. Persons who are a proponent at the time of the approval of the PRSP cease to be considered as proponents within the meaning of this Act not earlier than three years after the approval of the PRSP on that list provided that:
1° they no longer have the control of the SIRP or the legal person manager of the SIRP having adopted the form of a share-sponsored company; and
2° the obligations referred to in Article 23, §§ 1^er2 and 3, paragraph 1^er were executed.
In the event that there are several proponents, they are held in solidarity with their obligations under this Act.
Art. 23. § 1^er. The proponents of the SIRP are strongly satisfied that the conditions for the issuance of any capital increase made by means of a public offer within three years of the date of registration, expressly provide that the capital increase is not realized and that the amount of the subscriptions is refunded to the subscribers, if the amount of the capital already subscribed, increased the aggregate amount of the subscriptions collected after the closing of the period of subscription, is
Excludes information referred to in paragraph 1^er in this paragraph, the prospectus also mentions the proponents' commitment to repay to subscribers in the case referred to in paragraph 1^er, the commissions and brokerages that they may have paid due to the subscription.
§ 2. The prospectus mentions the commitment of the proponents of the SIRP to refund to the shareholders the charges, commissions and expenses that they have paid as a result of the acquisition of shares of the SIRP, and to refund to the SIRP the amount of the remuneration paid by the SIRP or one of its affiliates for the services presumed by a company with which the SIRP or a proponent of the SIRP is connected or have a link of participation, where
§ 3. Proponents are required to ensure, for example, through the use of public sales offers or public subscriptions, that at least 30% of the securities conferring the PRSP's right to vote are in the hands of the public on a continuous and permanent basis from one year after the registration. Proponents are bound to an obligation of means with respect to the effective subscription of the public to the above-mentioned offers.
In the event that an offer of sale or an offer of subscription is made when less than 30% of the securities conferring the SIRP's right to vote are spread in the public, the proponents set the price by title of the above-mentioned offers on the basis of an estimate of the net value per share not dating more than four months before the start of the program or sale and justify any deviations from that offer. The MSDS considers the reasonableness of this price.
§ 4. Without prejudice to § 3, paragraph 1^er of this article, an acquisition of securities conferring the right to vote of the SIRP by the proponent or a person with whom the proponent acts in concert may not have the effect of reducing below 30% the proportion of securities conferring the right to vote in the hands of the public.
§ 5. For the purposes of §§ 3 and 4 of this section, a person who does not act in concert and does not have a link of participation with the proponent shall be deemed to be part of the public.
F. Expert
Art. 24. § 1^er. The SIRP shall designate one or more independent real estate experts to assess the real property referred to in section 47.
The expert is not bound or has no link of participation with the proponent, does not perform management functions with the proponent and does not have any other relationship or relationship with the proponent to affect his independence.
The expert has the necessary professional honourability and experience to perform real estate assessments and his organization is appropriate to the exercise of the expert activity.
The remuneration of the expert may not be directly or indirectly related to the value of the expertized real property.
§ 2. Without prejudice to paragraphs 2 and 3, the expert shall be designated for a term of three years renewable.
An expert may only be responsible for the assessment of a particular property for a period of up to three years.
After the expiration of this three-year period, the same expert can only assess a real estate after a three-year period has passed since the end of the previous term.
In the event that the expert is a legal entity, the rules referred to in paragraphs 2 and 3 of this paragraph apply exclusively to the natural persons who represent him, provided that the expert determines that adequate functional independence exists between them.
CHAPTER III. - Exercise of activity
A. Titles issued by a publicly regulated real estate company and capital transactions
Art. 25. With the exception of shareholders and similar securities and subject to the specific provisions of this Act and the orders and regulations made for its execution, the public regulated real estate company may issue the securities referred to in section 460 of the Corporations Code, in accordance with the rules provided by the latter.
Art. 26. § 1^er. In the event of an increase in capital against cash intake and without prejudice to the application of sections 592 to 598 of the Code of Companies, the right of preference may only be limited or deleted provided that an irreducible right of allocation is granted to existing shareholders when assigning new securities.
This irreducible entitlement meets the following conditions:
1° it covers the entirety of newly issued securities;
2° it is granted to shareholders proportionally to the portion of the capital that their shares represent at the time of the transaction;
3° a maximum price per share is announced no later than the day before the opening of the public subscription period; and
4° the period of public subscription shall in this case have a minimum period of three days of exchange.
Without prejudice to the application of sections 595 to 599 of the Corporate Code, the preceding paragraphs are not applicable in case of cash intake with limitation or suppression of the preferential right, complementary to in-kind intake in the distribution of an optional dividend, provided that the latter is effectively open to all shareholders.
§ 2. Without prejudice to sections 601 and 602 of the Corporate Code, in the event of issuance of securities against in-kind contributions, the following conditions must be met:
1° the identity of the person making the contribution must be mentioned in the report of the board of directors, or as the case may be, of the manager referred to in section 602 of the Code of Companies, as well as, if any, in the convocation to the general assembly which shall decide on the increase of capital;
2° the emission price may not be less than the lowest value between (a) a net value per share not more than four months before the date of the contribution agreement or, at the choice of the SIRP, before the date of the capital increase act and (b) the average of the closing courses of the thirty calendar days preceding that same date.
For the purposes of the preceding sentence, it is permissible to deduct from the amount referred to in paragraph 2 of the preceding paragraph an amount corresponding to the portion of the undistributed gross dividends whose new shares would eventually be deprived, provided that the board of directors specifically justifies the amount of the accumulated dividends to be deducted in its special report and sets out the financial conditions of the transaction in the annual financial report;
3° unless the emission price, or, in the case referred to in § 3, the exchange report, as well as their terms and conditions, are determined and communicated to the public no later than the working day following the conclusion of the contribution agreement by mentioning the period in which the capital increase will be actually realized, the capital increase act has passed within a maximum period of four months; and
4° the report referred to in 1° must also clarify the impact of the proposed contribution on the situation of former shareholders, in particular regarding their share of profit, net value per share and capital, as well as the impact in terms of voting rights.
This subsection is not applicable in the event of a contribution of the right to the dividend in the course of the distribution of an optional dividend, provided that the dividend is effectively open to all shareholders.
§ 3. The provisions of paragraph 2 shall apply mutatis mutandis to mergers, divides and similar transactions referred to in articles 671 to 677, 681 to 758 and 772/1 of the Code of Companies.
In the latter case, by "date of the contribution agreement" it is necessary to hear the date of the filing of the merger or split project.
Art. 27. In the event of an increase in the capital of a SIRI against cash intake at a lower emission price of 10% or more than the lowest value between (a) a net value per share not more than four months before the start of the program and (b) the average of the closing courses of the thirty days calendar before the day of the issuance, the board of directors of the SIRP or, This report and the evaluation criteria and methods used are commented on by the Commissioner of the SIRP in a separate report. The reports of the board of directors or, as the case may be, the manager, and the Commissioner are published in accordance with sections 35 and following of the Royal Decree of November 14, 2007 no later than the day of the commencement of the program and in any event as soon as the price is determined if it is fixed earlier.
For the purposes of the preceding paragraph, it is permissible to deduct from the amount referred to in point (b) of the first paragraph an amount corresponding to the portion of the undistributed gross dividends whose new shares would eventually be deprived, provided that the Board of Directors of the SIRP specifically justifies the amount of the accumulated dividends to be deducted and sets out the financial conditions of the transaction in the annual financial report.
In case the SIRI is not rated, the dete referred to in paragraph 1^er is calculated only on a net value per share not more than four months.
This paragraph is not applicable to capital increases fully subscribed by the SIRP or its subsidiaries, the entire capital of which is owned directly or indirectly by the SIRP.
B. Limitations and risk management
Art. 28. § 1^er. Sections 29 and 30 apply on a consolidated basis to the SIRP and to the companies it consolidates under IFRS.
§ 2. For the purposes of the provisions of this item to the entities on which the SIRP exercises exclusive control, as defined in IFRS, the assets and liabilities of these entities are confused with the corresponding assets and liabilities of the SIRP, regardless of the actual percentage of participation of the SIRP in these entities.
For the purposes of the provisions of this item to persons on whom the PRSP exercises joint control, the assets and liabilities of the companies concerned are, notwithstanding the equivalence, confused with the corresponding assets and liabilities of the PRSP in proportion to the actual percentage of participation of the PRSP in these companies.
§ 3. The provisions of this item concerning real property referred to in Article 47, § 1^er, apply on the basis of the last determination of their fair value by the SIRP expert.
Art. 29. SIRP's assets are diversified to ensure an adequate distribution of risks in terms of real estate assets, by geographic region and by user category or tenant.
Art. 30. § 1^er. Without prejudice to section 29, no operation carried out by the SIRP may have effect
1° that more than 20% of its consolidated assets are placed in real property that form a single real estate unit; or
2° to increase this proportion, if it is already more than 20%, regardless of the cause of the initial exceedance of that percentage.
This limitation is applicable at the time of the transaction.
For the purposes of this section, one or more real estate property must be understood as a single risk in the head of the SIRP by real estate as a whole.
In case of need, FSMA may designate one or more experts, paid by SIRP, to determine whether the real property considered is a real estate package. A copy of the draft report and the final report of experts will be forwarded to the PRSP in a timely manner so that it can make its comments.
§ 2. Companies that have engaged in real estate activities prior to their approval must establish that their consolidated assets are not placed for more than 20% in real property that form a single real estate package.
§ 3. FSMA may, under the conditions fixed by it, grant an exemption to the limits provided for in §§ 1^er and 2,
1° for a period of up to 2 years, from the date of approval, or
2° where the SIRP determines that such an exemption is in the interest of its shareholders, or
3° where the SIRP determines that such an exemption is justified on the basis of the specific characteristics of the placement, including the extent and nature of the investment.
In order to assist it in the granting of the exemption, the ADMSP may, if necessary, designate one or more experts, paid by the ATIS. A copy of the draft report and the final report of the experts will be forwarded to the PRSP in a timely manner so that it can make its comments.
This exemption as well as its possible terms and conditions must be detailed in the annual or semi-annual financial reports prepared up to the time the exemption is not applicable.
§ 4. Derogations under § 3 may not be granted by the FSMA if the consolidated debt rate of the SIRP and its affiliates exceeds 33% of the consolidated assets, deducting the authorized coverage instruments, at the time of the acquisition or assignment concerned.
The derogations referred to in § 3 shall be withdrawn by the MSDS in the event that the consolidated debt rate of the SIRP and its subsidiaries exceeds 33% of the assets consolidated at any time of the derogation period.
§ 5. The limit referred to in § 1^er does not apply, with respect to the risk of investment that relates to the identity of the tenant or the user of real estate, to real property covered by a long-term commitment of a Member State of the European Economic Area as a tenant or user of the property concerned.
Art. 31. § 1^er. The SIRP can only hold shares or shares of a SIRI or a real estate company directly or indirectly provided that it exercises exclusive or joint control over it.
This paragraph shall be without prejudice to securities transactions and financial instruments carried out in accordance with Articles 7, (a) and 8.
§ 2. The SIRP cannot control, together with another SIR that it does not consolidate, an SIRI or a real estate company.
§ 3. The King, by order taken on the advice of FSMA, may further elaborate the conditions under which publicly regulated real estate companies may hold shares or shares in another company.
Art. 32. In case the SIRP controls one or more SIRs, it is forbidden to have a Belgian legal subsidiary with the quality of a real estate company.
In case a SIRP controlling one or more SIRIs acquires control of a Belgian real estate company, it has a period of 24 months to comply with paragraph 1^er.
This section is not applicable to real estate companies in which a SIRP holds shares or shares since 1^er January 2009 at least.
Art. 33. No participation may be held in a subsidiary of the SIRP:
1° the promoter and the persons related to him;
2° persons holding participation in the SIRP;
3° the manager of the SIRP's legal entity having adopted the form of a share-sponsored corporation as well as persons, other than the SIRP, with whom the manager of a corporation is bound or has a tie of participation; and
4° the directors, managers, members of the steering committee, delegates to the day-to-day management, actual leaders or agents of the above-mentioned persons and the SIRP.
Art. 34. The SIRP and its affiliates may hold stakes in companies with limited legal personality and liability that have an incidental object to their own account or on behalf of the SIRP or its subsidiaries, such as the management or financing of the property of the SIRP or its subsidiaries.
The entire capital of the companies referred to in paragraph 1^er must be in the hands of the SIRP or its subsidiaries.
Such participation shall not be subject to the provisions of this item.
C. Remunerations, commissions and fees
Art. 35. § 1^er. The fixed remuneration (a) of directors, managers, steering committee members, day-to-day management delegates and the effective management of the PRSP and (b) of directors, managers, members of the steering committee, day-to-day management delegates and the effective management of the PRSP's corporate manager having adopted the form of a share-sponsored corporation may not be determined on the basis of the transactions and transactions carried out by the PRSP.
Variable remuneration may be granted to persons referred to in paragraph 1^er, provided that (a) the criteria for awarding variable remuneration or the portion of the variable remuneration that depends on the results only relate to the consolidated net result of the PRSP, excluding any change in the fair value of the assets and coverage instruments and (b) that no remuneration is awarded according to a specific transaction or transaction of the PRSP or its affiliates.
§ 2. With the exception of possible brokerages applicable to securities transactions, taxes relating to these transactions and the remuneration of any independent external consultants, no commission, no fee or fee may be charged to the SIRP because of the acquisition of:
1° Securities issued by a corporation with which the SIRP, the manager of the corporate entity of the SIRP having adopted the form of a share-sponsored corporation or a proponent of the SIRP are linked or have a link of participation; and
2° shares of an entity managed, directly or indirectly, by the manager of the corporate entity of the SIRP having adopted the form of a corporation sponsored by shares, a promoter of the SIRP or by a company with which the SIRP, the manager of the corporate entity of the SIRP having adopted the form of a corporation sponsored by shares or a promoter of the SIRP are linked or have a link of participation.
§ 3. By order made on the advice of the FSMA, the King shall determine how the information concerning the remuneration of experts and commissioners, who are responsible for the SIRP or its subsidiaries, shall be published in the annual financial report and, where appropriate, referred to in the prospectus.
D. Conflict of interest prevention and management
Art. 36. The experts referred to in section 24, as well as, in the case of a corporation, their directors, day-to-day management delegates, their managers, directors or agents, may not be considered for transactions with the public regulated real estate company or any of its affiliates, or may obtain any heritage advantage in connection with an operation on an asset of the public regulated real estate corporation or one of its subsidiaries.
In the event that a number of experts have been appointed, each person responsible for the evaluation of a separate portion of the public regulated real estate company's assets, paragraph 1^er is only personally applicable to them for the portion of the heritage entrusted to them by the assessment, as well as for the part of which the assessment was made at any time during the preceding three years.
Art. 37. § 1^er. The transactions contemplated by the SIRP or one of its subsidiaries must be brought to the attention of the FSMA, if one or more of the following persons are directly or indirectly counterparted or obtain any benefit of a heritage nature during the operation:
1° persons who control or hold an interest in the SIRP;
2° the persons with whom (a) the SIRP, (b) a subsidiary of the SIRP, (c) the manager of the corporate entity of the SIRP having adopted the form of a corporation sponsored by shares or a corporation controlled by the SIRP, (d) the promoter and (e) the other shareholders of a subsidiary of the SIRP, are linked or have a link of participation;
3° the manager of a corporation of the SIRP or one of its subsidiaries having adopted the form of a corporation sponsored by shares;
4° the promoter of the SIRP;
5° other shareholders of any subsidiary of the SIRP; and
6° Directors, Managers, Executive Committee Members, Daily Management Delegates, Actual Leaders or Agents:
(a) the SIRP or one of its subsidiaries;
(b) the corporate manager of the SIRP or one of its subsidiaries having adopted the form of a share-sponsored corporation;
(c) the proponent;
(d) other shareholders of any subsidiary of the SIRP; and
(e) a person referred to in 1st of this paragraph.
§ 2. When informing FSMA, the public regulated real estate company must establish that the proposed transaction is of interest to it and that it is in the normal course of its corporate strategy.
If the FSMA considers that the information it is previously informed is insufficient, incomplete or not conclusive or relevant, it advises the public regulated real estate company.
If it is not taken into account, the FSMA may make it public.
By order made on the advice of FSMA, the King specifies the information and publication obligations that apply in this context to the publicly regulated real estate company.
§ 3. The operations referred to in § 1^er must be carried out under normal market conditions.
Article 49, § 2 is applicable.
Art. 38. The provisions of sections 36 and 37 do not apply:
1° to transactions of less than the lowest amount between 1% of the consolidated assets of the RRP and EUR 2,500 000;
2° to the acquisition of securities by the SIRP or any of its affiliates as part of a public broadcast by a third-party issuer, for which a promoter or a person referred to in section 37, § 1^er intervene as an intermediary within the meaning of Article 2, 10° of the Act of 2 August 2002;
3° to the acquisition or subscription of shares of the SIRP by the persons referred to in Article 37, § 1^erissued following a decision of the General Assembly; and
4° to transactions relating to the liquidity of the SIRP or one of its subsidiaries, provided that the counterpart person has the quality of intermediary within the meaning of section 2, 10° of the Act of 2 August 2002 and that such transactions are carried out under conditions consistent with those of the market.
E. Obligations and prohibitions
Art. 39. The public regulated real estate company and its subsidiaries are prohibited:
1° participation in a firm or guarantee union;
2° the loan of financial instruments, except for loans made under the terms and conditions of the Royal Decree of 7 March 2006; and
3° the acquisition of financial instruments issued by a private corporation or association that is declared bankrupt, concludes an amicable agreement with its creditors, is the subject of a judicial reorganization procedure, has obtained a stay of payment, or has been subject to a similar measure in a foreign country.
Art. 40. The public regulated real estate company and its affiliates provide adequate insurance coverage for all their properties.
Insurance coverage meets the conditions usually applicable on the market.
The percentage of the fair value of buildings covered by insurance coverage is mentioned in the annual financial report.
Art. 41. Neither the public regulated real estate company nor one of its subsidiaries can act as a real estate developer.
For the purposes of this section, a real estate promoter means a person whose business activity, as principal or as an accessory, consists, excluding occasional operations, in the construction or construction of buildings with a view to assigning them as expensive, in whole or in part, either before construction or during construction, or within five years after construction.
Art. 42. Without prejudice to the rules defined by the King in respect of the rental-financing activity, and with the exception (a) of the granting by the publicly regulated real estate company of credits and the establishment of security rights or guarantees for the benefit of a subsidiary and (b) of the grant by a subsidiary of the publicly regulated real estate company of credits and the establishment of security rights or guarantees for the benefit of the regulated real estate corporation public or
For the purposes of paragraph 1^er, are not taken into account the amounts due to the public regulated real estate company of the head of the assignment of real property, provided that they are paid within the time limits of use.
Art. 43. A publicly regulated real estate company or a subsidiary of it may not grant a mortgage or grant other security rights or guarantees only in the context of the financing of its real estate activities or those of the group.
The total amount covered by mortgages, security rights or guarantees referred to in paragraph 1^er cannot exceed 50% of the fair aggregate value of real property held by the publicly regulated real estate company and its subsidiaries.
No mortgage, security or guarantee encumbering a particular real estate property, granted by the public regulated real estate company or a subsidiary of the public regulated real estate company, may not exceed 75% of the value of the encumbered property.
Art. 44. A publicly regulated real estate company or one of its subsidiaries may only acquire encumbered properties of a mortgage when the assignment of encumbered properties of a mortgage is of common practice in the jurisdiction where the property is located.
Art. 45. The King, by order made on the advice of FSMA, determines the obligations and prohibitions to which publicly regulated real estate companies are subject in the following matters:
1° the extent to which publicly regulated real estate companies may resort to borrowing;
In this regard, the King cannot fix the maximum debt rate of the publicly regulated real estate company to a ceiling above 65% of its assets;
2° the obligations of publicly regulated real estate companies in the allocation of the result.
In this regard, and without prejudice to the possibility for Him to define exceptions to the obligation of distribution, the King cannot set the minimum amount of distribution of the dividend to less than 80% of the result, as defined under this Act and the decrees and regulations made for its execution.
F. Expert Inventory and Evaluation
Art. 46. Without prejudice to the obligation under section 9 of the Act of 17 July 1975 relating to the accounting of enterprises to establish an inventory at least once a year, the SIRP prepares an inventory of its real property as well as of its affiliates each time it issues shares. The same applies to the purchase of shares other than a regulated market.
Art. 47. § 1^er. At the end of each fiscal year, the expert assesses the fair value of the following properties in detail:
1° real property and rights on real property, held by the SIRP or by one of its subsidiaries, with the exception of assets recorded as receivables, in accordance with IFRS, as part of a financial lease;
2° the option rights on buildings, held by the SIRP or by one of its subsidiaries, as well as the buildings on which these rights apply; and
3° the rights arising from contracts giving one or more property for real estate financing to the SIRP or one of its subsidiaries, as well as the underlying buildings.
These evaluations link the PRSP to the establishment of its statutory accounts and consolidated accounts.
§ 2. In addition, at the end of each of the first three quarters of the fiscal year, the expert updates the determination of the fair value of the real property mentioned in § 1^er and held by the SIRP and its subsidiaries, based on market developments and the specific characteristics of the property concerned.
Art. 48. Without prejudice to section 47, the fair value of real property held by the SIRP and its subsidiaries referred to in section 47, § 1^er is assessed by the expert whenever the PRSP conducts the issuance of shares, the registration of shares in a regulated market or a merger, splitting or similar operation. The same applies to the purchase of shares other than a regulated market. The SIRP is not bound by this evaluation but must justify the issuance or redemption price on the basis of this evaluation.
The assessment referred to in paragraph 1^er cannot go back to a date prior to a month prior to the transaction.
However, a new assessment is not necessary when the issuance of shares, the listing of shares for the negotiation on a regulated market, the acquisition of shares or the filing of the proposed merger, split or assimilated transaction occurs within four months after the last assessment or update of the valuation of the property concerned and provided that the expert confirms that the general economic situation and the state of the property does not require a new assessment.
Art. 49. § 1^er. Without prejudice to § 2, the fair value of each property mentioned in Article 47, § 1^er, to be acquired or disposed of by the SIRP or its subsidiaries, is assessed by the expert before the transaction takes place, provided that the transaction, as a whole, represents an amount greater than the lowest amount between 1% of the consolidated assets of the SIRP or EUR2,500 000.
Where the acquisition or disposal price of a property is more than 5% of the valuation referred to in paragraph 1^erthe transaction and its price are justified in the annual financial report and, where applicable, in the semi-annual financial report of the SIRP.
§ 2. Where the other contracting party is one of the persons referred to in Article 37, § 1^er or if any of these individuals obtain any benefit at the time of the transaction, the fair value of the property concerned is assessed regardless of the value of the transaction.
In the event of a transfer by the SIRP or its subsidiaries of a property in the case referred to in paragraph 1^er, the fair value determined by the expert is the minimum price to which the property can be alienated. Similarly, in the case of acquisition by the SIRP or its affiliates of a property in the case referred to in paragraph 1^er, the fair value determined by the expert is the maximum price to which the property can be acquired.
§ 3. The determination of the fair value referred to in the preceding paragraphs cannot go back to a date prior to a month prior to the transaction.
§ 4. However, a new determination of fair value is not necessary when the operation in question takes place no later than four months after its last assessment by the expert and as long as the expert confirms that the general economic situation and the state of the property does not require a new assessment.
G. Regular information and accounting policies
Art. 50. § 1^er. The Public Regulated Real Estate Corporation shall submit its annual and semi-annual reports to FSMA.
§ 2. The persons responsible for the effective management of the public regulated real estate company declare to FSMA that the periodic reports referred to in § 1^er are in accordance with accounting and inventories.
§ 3. These reports (a) must be complete and include all data in accounting and inventories on the basis of which periodic reports are prepared, and (b) must be accurate and consistent with accounting and inventories on the basis of which periodic reports are prepared. Effective management officials confirm that they have made the necessary steps to ensure that the above-mentioned reports are prepared in accordance with the existing instructions of the MSDS, as well as by applying the accounting and evaluation rules that preside over the preparation of annual accounts, with respect to the periodic reports prepared at the end of the year, or by applying the accounting and evaluation rules that preside over the preparation of the annual accounts for the last fiscal year,
§ 4. The King, by order taken on the advice of FSMA, determines the content of annual and semi-annual reports.
FSMA may, in special cases, authorize exemptions to the content of annual and semi-annual reports.
Art. 51. The King, by order taken on the advice of FSMA, sets out the rules that public regulated real estate companies hold their accounting, conduct inventory assessments and establish and publish their annual accounts. It may derogate from section 105 of the Corporate Code, adapt, amend and supplement the rules made pursuant to the Act of 17 July 1975 on business accounting and, under the conditions of section 122, paragraph 1^er the Corporations Code, the rules made pursuant to section 92 of the Corporate Code.
CHAPTER IV. - Control
Section 1^re. - Control exercised by FSMA
Art. 52. § 1^er. The public regulated real estate company is subject to the control of FSMA.
§ 2. The FSMA may be provided with all information and documents relating to the organization, operation, situation and operations of the publicly regulated real estate company that it controls, and the valuation and profitability of its heritage.
§ 3. It may conduct on-site inspections with the public regulated real estate company and be informed and copied, without displacement, of any information held by it, with a view to:
1° to verify compliance with the provisions of this Act and the decrees and regulations made for its execution, and the provisions of the statutes, as well as the accuracy and sincerity of the accounting and annual accounts, as well as annual and semi-annual reports, periodic reports and other information transmitted to it by the public regulated real estate company;
2° to verify the adequacy of the management and internal control structures of the public regulated real estate company;
3° to ensure that the management of the public regulated real estate company is healthy and prudent and is not likely to compromise the rights attached to the securities.
§ 4. The provisions of sections 79 to 85 of the Act of 2 August 2002 shall apply for the exercise of the powers assigned to the ADMSP by and under this heading.
Art. 53. The public regulated real estate company periodically communicates to FSMA a detailed financial situation. It is established in accordance with the rules set out by regulation of the MSDS, taken in accordance with section 64 of the Act of 2 August 2002, which determines its content, frequency and mode of communication. In addition, FSMA may prescribe the regular communication of other encrypted or descriptive information necessary to verify compliance with the provisions of this Act and the orders and regulations made for their implementation.
The persons responsible for the effective management of the public regulated real estate corporation declare to the ADMF the periodic financial statements referred to in paragraph 1^er are in accordance with accounting and inventories. These periodic statements (a) must be complete and include all data in accounting and inventories on the basis of which the periodic financial statements are prepared, and (b) must be accurate and consistent with accounting and inventories on the basis of which the periodic financial statements are prepared.
They confirm that they have made the necessary steps to ensure that the above-mentioned statements are prepared in accordance with the existing ADMSP instructions, as well as through the application of the accounting and evaluation rules for the preparation of the annual accounts.
FSMA may, in special cases, authorize exemptions from the regulation referred to in paragraph 1^er.
The regulations under paragraph 1^er is taken after consultation with relevant professional associations.
Art. 54. FSMA is not aware of the relationship between the public regulated real estate company and a specified shareholder only to the extent required for the control of the public regulated real estate company.
Section 2. - Revisional control
Art. 55. § 1^er. The public regulated real estate company is required to designate a commissioner who acts as commissioner under the Corporate Code.
Section 141, 2°, of the Corporate Code is not applicable to the public regulated real estate company.
§ 2. The functions of Commissioner may only be entrusted to a registered revisor or revisors or to one or more revisors registered by the FSMA in the public regulated real estate company.
The Public Regulated Real Estate Corporation may designate alternate commissioners who perform the duties of Commissioner in the event of their licensee's lasting incapacity. The provisions of this Article and Article 56 shall apply to such substitutes.
Art. 56. Authorized reviewers perform the duties of Commissioner under section 55 through a registered reviewer designated by them and pursuant to section 6 of the Act of July 22, 1953. The provisions of this Act and the decrees and regulations made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners, as well as to sanctions, other than criminal, that are applicable to the commissioners, shall apply both to revisors and to approved reviewers representing them.
A registered reviser corporation may designate an alternate representative from among its eligible members to be designated.
Art. 57. The ADMSP, with the approval of the Minister of Finance and the Minister of Economic Affairs, shall determine the regulations for the approval of revisers and revisers.
Accreditation regulations are made after consultation with approved reviewers represented by their professional organization.
The Institut des Réviseurs d'Entrentreprise informs the FSMA of the opening of any disciplinary proceedings against an approved reviser or a registered reviser company for failure to perform its duties with a publicly regulated real estate company.
Art. 58. The designation of commissioners and alternate commissioners to the public regulated real estate company is subject to the prior agreement of the FSMA. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of an approved reviser company, the agreement shall jointly deal with the company and its representative and, where appropriate, its alternate representative.
The same agreement is required for the renewal of the mandate.
When, by virtue of the Act, the Commissioner's appointment is made by the President of the Commercial Court or the Court of Appeal, they make their choice on a list of certified reviewers with the consent of the MSDS.
Art. 59. ADMSP may, at any time, revoke, by a decision based on reasons for their status or the performance of their duties as an approved reviser or a registered reviser corporation, as provided by or under this Act, the agreement given, pursuant to section 58, to a Commissioner, an alternate commissioner, a registered reviser corporation or a representative or alternate representative of such a corporation. This revocation puts an end to the duties of Commissioner.
In the event of a commissioner's resignation, the FSMA and the public regulated real estate company are previously informed, as well as the reasons for the resignation.
The regulation of registration referred to in section 57 shall rule the procedure.
In the absence of an alternate commissioner or an alternate representative of a registered revisor corporation, the public regulated real estate corporation or a registered revisor corporation shall, in accordance with section 58, be replaced within two months.
In the regulated public real estate company, the proposal to revoke the commissioner's terms of reference, as set out in sections 135 and 136 of the Corporate Code, is submitted to the ADMSP. This notice is communicated to the General Assembly.
Art. 60. § 1^er. The Commissioners shall cooperate in the control exercised by the MSDS under their exclusive personal responsibility and in accordance with this paragraph, in the rules of the profession and in the instructions of the MSDS. To this end:
1° they assess the internal control measures adopted by the public regulated real estate company in accordance with Article 17, § 2, and the orders and regulations made pursuant to that provision, and communicate their findings in this matter to the FSMA;
2° they report to FSMA on:
(a) the results of the limited review of semi-annual reports, communicated by the publicly regulated real estate company to the MSDS pursuant to section 50, confirming that they are not aware of any facts that it appears that the semi-annual reports have not, in all significant respects, been prepared in accordance with the existing instructions of the MSDS. They further confirm that semi-annual reports are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that sense (a) that they are complete and that they mention all the data in the accounting and inventories on the basis of which they are prepared, and (b) that they are correct and that they correspond exactly with the accounting and with which they are prepared they also confirm that they are not aware of any facts that appear to be that the biannual reports were not prepared by application of the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year;
(b) Monitoring results:
(i) annual reports submitted by the publicly regulated real estate company to the FSMA at the end of the social exercise under section 50, § 1^er;
(ii) periodic financial statements that are transmitted to the ADMSP under section 53:
- arrested at the end of the calendar year for publicly regulated real estate companies closing their fiscal year on 31 December;
- arrested at the end of the quarter that coincides with the closing of the fiscal year, for publicly regulated real estate companies whose fiscal year is closed on the last calendar day of a quarter that does not end on December 31, or
- arrested at the end of the quarter before the end of the fiscal year, for publicly regulated real estate companies whose fiscal year is not closed at a date that coincides with the last calendar day of a quarter, confirming that the above-mentioned reports and statements have, in all significant respects, been prepared in accordance with the existing instructions of the MSDS. They further confirm that the annual reports and financial statements are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that sense (a) that they are complete and that they mention all the data in the accounting and in the inventories on which they are prepared, and (b) that they are correct and that they correspond exactly with the inventories established with the accounting and they also confirm that annual reports and financial statements have been prepared by application of the accounting and evaluation rules that preside over the preparation of annual accounts;
(c) the results of their review of the amounts of the net assets as mentioned in the periodic financial statements transmitted to the MSDS pursuant to section 53, at the end of the calendar year for the publicly regulated real estate corporation that does not close its fiscal year on 31 December, confirming that it is not aware of the facts that it would appear that the above data have not, in all significant respects, been determined in accordance with the instructions given in respect
3° they make special reports to FSMA, at its request, on the organization, activities and financial structure of the public regulated real estate company, reports whose settlement fees are borne by the corporation in question;
4° as part of their missions to the regulated public real estate company, as well as to a related company, within the meaning of Article 11 of the Code of Societies, with the regulated public real estate company, the commissioners report to the MSDS as soon as they find:
(a) decisions, facts or developments that significantly influence or influence the situation of a publicly regulated real estate company from a financial perspective;
(b) decisions or facts that may constitute violations of the Corporations Code, the statutes, this Act and the orders and regulations made for its execution;
(c) other decisions or facts that are likely to result in a refusal to certify or issue reservations.
No civil, criminal or disciplinary action may be brought or any professional sanction imposed against the commissioners who have proceeded in good faith to any information referred to in the 4th of this paragraph.
Commissioners shall communicate to the executives of the publicly regulated real estate company their reports to the ADMDS pursuant to paragraph 1^erThree. These communications fall under the secret organized by section 76 of the Act of 2 August 2002. They transmit to FSMA copies of the communications they address to these leaders, which deal with issues of interest to the control exercised by them.
§ 2. The MSDS may require that the accuracy of the information transmitted to it under section 53 be confirmed by the Commissioner of Public Regulated Real Estate Corporation.
The commissioners may be charged by FSMA, at the request of the BNB or the European Central Bank, to confirm that the information that the public regulated real estate company is required to communicate to these authorities is complete, correct and established in accordance with the rules applicable thereto.
Art. 61. The King may, by order made on the advice of the MSDS, determine additional missions to be performed by the Commissioner and determine the conditions for the exercise of these missions.
Section 3. - Abolition of accreditation, exceptional measures and administrative sanctions
Art. 62. § 1^er. A publicly regulated real estate company may waive its approval by complying with the following procedure.
§ 2. The renunciation by a publicly regulated real estate company to its approval requires a decision of its general assembly taken under the terms of Article 559 of the Code of Societies and found, barely invalid, by an authentic act. This act reproduces the conclusion of the report prepared by the authorized commissioner.
§ 3. Immediately after the passing of the notice of renunciation, the statutes of the corporation having waived the status of a publicly regulated real estate corporation, including the clauses that alter its name and, if so, its social object, are arrested on the same conditions of presence and majority as those required for the act of renunciation. If not, the decision to waive the status of a publicly regulated real estate company remains without effect.
§ 4. The provisions of Article 78, §§ 1^er and 2 are mutatis mutandis of application.
§ 5. The act of renunciation and the statutes are published simultaneously in accordance with section 74 of the Corporate Code. The denunciation is published in full; the statutes are extracted in accordance with articles 69, 71 and 72 of the same Code.
The report of the authorized commissioner is filed in shipment or original at the same time as the act to which it relates.
Art. 63. FSMA eliminates the accreditation of the public regulated real estate company, which:
1° renounces accreditation;
2° did not commence its activities within twelve months of the accreditation;
3° has ceased to operate for more than six months; or
4° was declared bankrupt.
Art. 64. § 1^er. When FSMA finds that a publicly regulated real estate company does not operate in accordance with the provisions of this Act and the orders and regulations made for its execution or with the provisions of its statutes, that its management or financial situation are likely to jeopardize the successful termination of its commitments, that its internal control presents serious deficiencies, or that the rights attached to the securities of the public regulated real estate company that are or have been the subject of a fixed public offer
If at the end of this period, the situation has not been resolved, the MSDS may:
1° publicize its position on the findings made under paragraph 1^er; the costs of this publication are borne by the public regulated real estate company;
2° appoint a special commissioner;
3° suspend or prohibit for the duration that it determines any issue or purchase of securities;
4° suspend or prohibit, for the duration it determines, the trading in the securities market of the publicly regulated real estate company;
5° enjoin the replacement of the members of the legal body of administration of the public regulated real estate corporation within a time limit that it determines and, failing such a replacement within that period, substitute for all the administrative and management bodies of the public regulated real estate company one or more provisional directors or managers who have, alone or collegially as the case may be, the powers of the replaced persons. FSMA publishes its decision to the Belgian Monitor;
6° revoke the accreditation of the public regulated real estate company. FSMA publishes its decision to the Belgian Monitor.
§ 2. In the case referred to in § 1^er, paragraph 2, 2°, the written, general or special authorization of the Special Commissioner is required for all acts and decisions of all organs of the public regulated real estate company, including the general meeting of shareholders; FSMA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all organs of the public regulated real estate company, including the general assembly, any proposals that he considers appropriate. The remuneration of the Special Commissioner is fixed by the FSMA and supported by the public regulated real estate company.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without having obtained the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the public regulated real estate company or third parties.
If the FSMA has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions subject to its authorization, the acts and decisions taken without that authorization while it was required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization from the Special Commissioner is null unless the Special Commissioner ratifies it.
FSMA may designate an alternate commissioner.
In the event of a serious threat to holders of securities of the public regulated real estate company, the FSMA may designate a special commissioner without prior fixing of a period as provided in § 1^erParagraph 1^er.
§ 3. In the case referred to in § 1^er, paragraph 2, 3°, the members of the legal body of administration of the public regulated real estate company and the persons responsible for the management who perform acts or make decisions in violation of the suspension or prohibition are jointly responsible for the damage caused to the public regulated real estate company or the third parties.
If FSMA has issued the suspension or prohibition to the Belgian Monitor, the actions and decisions against it are null and void.
§ 4. In the case referred to in § 1^er, paragraph 2, 5°, the remuneration of the director(s) or provisional manager(s) is fixed by the MSDS and supported by the public regulated real estate company.
The MSDS may, at any time, replace the director(s) or provisional manager(s), either on its own motion or at the request of a majority of shareholders of the public regulated real estate corporation when they justify that the management of the persons concerned no longer presents the necessary guarantees.
§ 5. The decisions of the FSMA referred to in § 1^er depart their effects with respect to the publicly regulated real estate corporation on the date of their notification to the corporation and, in respect of third parties, on the date of their publication in accordance with the provisions of §§ 1^er and 2.
§ 6. § 1^erParagraph 1^er and § 5 are not applicable in the event of the revocation of the registration of a registered public regulated real estate company in bankruptcy.
§ 7. The court of commerce shall pronounce at the request of any interested person the nullities provided for in §§ 2 and 3.
The nullity action is directed against the public regulated real estate company. If there are serious grounds to justify it, the plaintiff may apply to refer the provisional suspension of the acts or decisions under attack. The order of suspension and the judgment pronouncing nullity produce their effects on all. In the event that the suspended or annulled act or decision has been published, the suspension order and the judgment pronouncing nullity are published by extract in the same forms.
Where nullity is likely to affect the rights acquired in good faith by a third party in respect of the publicly regulated real estate company, the court may declare nullity in respect of such rights without effect, subject to the right of the applicant to damages if applicable.
The action in nullity may no longer be brought after the expiration of a period of six months from the date on which the acts or decisions taken are enforceable against the person who invokes nullity or are known to him.
§ 8. Without prejudice to the measures defined by other laws and regulations, §§ 1^er to 7 are applicable where the FSMA finds that a publicly regulated real estate company, which falls under the Act of 16 June 2006, does not operate in accordance with the Act of 16 June 2006.
Art. 65. § 1^er. Without prejudice to the legal provisions relating to the provision of information by the FSMA to the Minister who has the Finance in his or her duties in the event that an institution on which the FSMA exercises control has established a particular mechanism for or for the purpose of promoting tax evasion by third parties, FSMA does not know tax matters.
However, § 1^erParagraphs 1^er and 2, 2° and § 2 of Article 64 are applicable in case the MSDS is aware of the fact that a publicly regulated real estate company has established a particular mechanism with the aim or effect of promoting tax evasion by third parties.
Art. 66. § 1^er. Without prejudice to the other measures provided for in this Act, ADMSP may set a time limit for a publicly regulated real estate corporation to:
(a) it shall comply with any specified provisions of this Act or any orders or regulations made for its execution, or
(b) it must bring the necessary adaptations to its internal control.
If the public regulated real estate company remains in default on the expiry of the period, the ADMSP may, the public regulated real estate company heard or at least duly summoned, charge it with a maximum amount of Euro2,500 000 per offence or Euro50,000 per day of delay.
§ 2. Without prejudice to the other measures provided for in this Act and without prejudice to the measures defined by other Acts or other regulations, FSMA may, when it finds an offence to the provisions of this Act or to the measures taken pursuant to these Acts, impose an administrative fine to a publicly regulated real estate company under Belgian law which may not be less than 5,000 euros or greater, for the same fact or for the same set of facts, at 2,500 000 euros.
§ 3. Penalties and fines imposed under §§ 1^er or 2 are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
Art. 67. § 1^er. The public regulated real estate company whose registration has been deleted under section 63, 2°, remains subject to this Act and to the orders and regulations made for its performance up to the refund of shareholders, unless the ADMDS exempts it from certain provisions.
§ 2. The public regulated real estate company whose approval has been deleted or revoked under sections 63, 3 or 64 remains subject to this Act and to the orders and regulations made for its execution until the winding-up has been completed, unless the ADMDS does not exempt it for certain provisions.
PART III. - Institutional regulated real estate companies
Art. 68. This title regulates the regime applicable to the corporate regulated real estate company.
Art. 69. § 1^er. Without prejudice to their possible application on a consolidated basis to the SIRP and the companies it consolidates, sections 3, 13, paragraph 1^er, second sentence, and second paragraph 2, 21, 22, 23, 24, 26, § 1^er, 27, 28, 29, 30, 31, 32, 33, 34,47, 48 and 52, § 1^er Title II is not applicable to SIRI.
§ 2. Without prejudice to the provisions of this title, the provisions of Title II applicable to the SIRP which are not covered by § 1^er are, mutatis mutandis, applicable to SIRI.
Art. 70. An institutionally regulated real estate company must be subject to exclusive or joint control by a public regulated real estate company.
Art. 71. § 1^er. The shares of corporate regulated real estate companies are nominal.
§ 2. In the event of an admission to the negotiation of shares of an institutionally regulated real estate company on an MTF or on a regulated market that is accessible to the public or where the shares of such a corporation are held, through third parties, by investors other than eligible investors, it is not affected by the institutional character of the institutional regulated real estate company provided that it takes adequate measures to ensure the quality of investors
The King may, by Royal Decree taken on the advice of the MSDS, determine the conditions under which the corporate regulated real estate company is presumed to take the appropriate measures, within the meaning of the preceding paragraph, to guarantee the quality of eligible investors of its shareholders.
Art. 72. Article 26, §§ 2 and 3 is applicable, on the understanding that in the event that the institutional regulated real estate company is not listed, the minimum emission price referred to in Article 26, § 2, paragraph 1^er, 2° is determined on a net value per share not more than four months.
The report referred to in section 602 of the Corporate Code is published by the board of directors of the publicly regulated real estate corporation in the manner provided for in sections 35 et seq. of the Royal Decree of November 14, 2007 prior to the capital increase.
The provisions of Article 26, §§ 2 and 3 are not applicable (a) to the capital increases wholly owned by the public regulated real estate company or its affiliates whose entire capital is held, directly or indirectly, by the said public regulated real estate company or (b) to the mergers, divides and assimilated transactions referred to in Articles 671 to 677, 681 to 758 and 772/1
Art. 73. In the event that the totality of the securities conferring the right to vote of the corporate regulated real estate corporation is not held directly or indirectly by a public regulated real estate corporation, the board of directors of the corporate regulated real estate corporation, or, as the case may be, by the manager of the corporate regulated real estate corporation having adopted the form of a corporation in commission by shares, must be composed of at least one quarter of the non-executive members
Art. 74. § 1^er. By derogation from Article 78 of the Code of Societies, the social name of an institutionally regulated real estate company and all the documents emanating from it, must contain the words "regulated real estate society institutional of Belgian law" or "institutional SIR of Belgian law" or "SIRI of Belgian law" or its name is immediately followed by these words.
§ 2. By derogation from Article 1^er the Corporate Code, an institutionally regulated real estate company may be incorporated by a public regulated real estate company acting alone.
Article 646, § 1^er, paragraph 2, of the Corporate Code is not applicable.
Art. 75. The corporate regulated real estate company is subject to the control of FSMA.
For the purposes of this Act, the accounts of the institutionally regulated real estate company are subject to control of the MSDS only to the extent required for the control of the consolidated accounts of the public regulated real estate company.
Art. 76. FSMA has no relationship between an institutionally regulated real estate company and a shareholder of the corporation other than a public regulated real estate corporation or one of its subsidiaries, only to the extent required for the control of the public regulated real estate company and for the respect of the conditions for the registration and exercise of the activity of the public regulated real estate company.
PART IV. - Accreditation of a real estate sicaf as a regulated real estate company
Art. 77. § 1^er. By amending its statutes and, in particular, its purpose to bring them into conformity with the provisions of this Act and the decrees and regulations made for its execution, any public sicafi may be registered as a publicly regulated real estate company, in accordance with the procedure and conditions of registration set out in Chapter 2 of this Act and the decrees and regulations made for its execution.
Sicafi submits an application for approval that meets the requirements of section 9 no later than four months from the coming into force of this Act.
FSMA only issues approval if it is also satisfied with paragraphs 2 and 2 below.
Where applicable, it shall issue the approval under suspensive condition of respect for paragraphs 2 and below. In this case, the General Assembly effectively deciding on the amendment of the statutes of the public sicafi must be held within three months of the FSMA's decision to grant the approval.
§ 2. At the same time as the publication of the convocation of the general assembly to amend its statutes, the public sicafi publishes a press release and simultaneously makes available to its shareholders a document containing a general description of the consequences of the proposed change of status and a description of the right of withdrawal referred to in § 3. This release and document are at least published on its website.
This release and document may only be published after their approval by FSMA. This approval does not include any assessment of the appropriateness of the proposed change of status or of the public sicafi situation.
This release and document constitute regulated information within the meaning of the Royal Decree of 14 November 2007 on the obligations of the issuers of financial instruments admitted to trading in a regulated market.
§ 3. In the case that the general assembly of the public sicafi approves the amendment of the proposed statutes, any shareholder who has voted against this proposal may exercise a right of withdrawal, at the highest price between (a) the last closing course prior to the publication of the convocation of the shareholders to the general assembly (if applicable, of deficiency) and (b) the average of the closing courses of the thirty calendar days preceding the date of the general meeting that approves the amendment. This right can be exercised only in a number of shares representing a maximum of EUR 100,000 given the price at which the withdrawal is exercised and as long as it was in shares with which it voted against this proposal and which it has remained the owner in an uninterrupted manner since the thirtieth day before the general assembly (if any, of deficiency) having on the agenda the modification of the statutes until the end of the meeting approves The price is made exclusively of species.
The condition of uninterrupted ownership referred to in the preceding paragraph is established, for the name shares, by the register of the name shares of the public sicafi. For dematerialized actions, the shareholder who intends to exercise his or her right of withdrawal must file before the general assembly (the case of failure, deficiency), within the period specified in Article 536, § 2, paragraph 3 of the Code of Companies, a certificate established by the contents of the approved accounts or the liquidation agency recognizing the number of shares for which he or she is the owner in an uninterrupted manner since the thirtieth day before the general meeting
For the purposes of paragraph 1, the property is considered to be prosecuted in the head of the rights holders in the event of death transmission or transfer following one of the transactions referred to in sections 670 to 773 of the Code of Companies.
For shares subject to indivision or dismemberment of ownership rights, shareholders must designate a single person to exercise the right of withdrawal.
Power of attorneys must include a point relating to the exercise of the right of withdrawal.
§ 4. Immediately after the approval of the amendment of the statutes, the shareholder shall exercise his right of withdrawal. The company first communicates the price to which the shares will be taken. The company takes the necessary steps to allow the shareholder to exercise his right of withdrawal at the time of the general assembly.
§ 5. In the month following the general assembly, the public sicafi (or the third party it replaced) pays the price.
§ 6. The public sicafi may include a proposal to amend its statutes of a condition that this amendment will only come into force if the number of shares for which the right of withdrawal is exercised does not exceed a certain percentage of the capital.
§ 7. In the event that the exercise of the right of withdrawal would result in a violation of the provisions of sections 620 et seq. of the Code of Societies and of the decrees and regulations made for its execution or the provisions of this Act and of the decrees and regulations made for its execution, the amendment of the statutes proposed does not take place and the public sicafi concerned retains its status.
§ 8. This section does not affect the application of section 5 of the Act of 1^er April 2007 relating to public tenders and orders and regulations made for its execution.
The publication of the releases or documents pursuant to this paragraph does not constitute, by itself, a public tender for acquisition within the meaning of this Act or a public offer within the meaning of the Act of 16 June 2006.
§ 9. A regulated real estate company cannot accumulate its status with an approval as an alternative collective investment organization.
Art. 78. § 1^er. Accreditation of a public sicafi as a publicly regulated real estate company entails full right and simultaneously the accreditation of institutional sicafi that it controls as corporate regulated real estate companies.
§ 2. The institutional sicafi management body approved as an institutional regulated real estate corporation shall take the necessary steps to make the statutes in accordance with the provisions of this Act and the decrees and regulations made for its execution.
PART V. - Criminal and other provisions
Art. 79. Are punished by imprisonment from eight days to three months and a fine of 50 euros to 10,000 euros or only one of these penalties:
1° those who used the name "regulated real estate company" to qualify an entity that is not registered as a regulated real estate company;
2° the regulated real estate company, as well as directors, managers and directors of such a corporation, who knowingly violated the provisions of this Act or the orders and regulations made for its execution;
3° those who, as an independent commissioner or expert, have certified, approved or confirmed accounts, annual accounts, or semi-annual reports, or periodic information, while the provisions of this Act or the orders and regulations made for its execution have not been complied with, or knowing that they had not been complied with, or having failed to perform the normal steps to ensure that they have not been respected.
Art. 80. Before a decision is taken on the opening of a bankruptcy proceeding or on a provisional divestiture within the meaning of section 8 of the Bankruptcy Act of 8 August 1997, in respect of a regulated real estate corporation, the President of the Commercial Court shall apply to the FSMA for an opinion. The clerk shall forward this request without delay. He informs the King's attorney. The MSDS referral is written. It is accompanied by the necessary documents for its information.
PART VI. - Amendments
CHAPTER I^er. - Amendments to the Financial Sector Supervision and Financial Services Act of 2 August 2002
Art. 81. In Article 45, § 1^er, 2°, of the Financial Sector Supervision and Financial Services Act of 2 August 2002, a point h is added as follows:
"h. regulated real estate companies."
Art. 82. In section 122 of the same law, it is added points 45° and 46°, as follows:
"45° to the applicant, against the refusal of approval or refusal of approval by the MSDS pursuant to Article 9, § 3, or 12, § 2, of the Law of 12 May 2014 on Regulated Real Estate Corporations, or where the MSDS has not ruled within three months or two months respectively from the date of the introduction of a complete file. In the latter case, the application for approval or approval is expected to be rejected;
46° to the regulated real estate company, against the decisions of the MSDS made under Article 64, § 1^er, paragraph 2, 3° and 6°, of the law of 12 May 2014 mentioned above. The appeal suspends the enforcement of the decision unless the ADMSP decides otherwise in the event of a serious threat to creditors or shareholders".
CHAPTER II. - Amendments to the Income Tax Code 1992
Art. 83. Article 2, § 1^er, 5, of the Income Tax Code 1992, replaced by the Act of 10 August 2001 and amended by the Acts of 27 December 2006, 11 December 2008 and 21 December 2013, is supplemented by
"g) Regulated Real Estate Corporation: any regulated, public or institutional real estate corporation, as referred to in section 2 of the Act of May 12, 2014 relating to settled real estate companies. ".
Art. 84. In Article 46, § 1^er, paragraph 2, of the same Code, amended by the Royal Decree of 3 March 2011 implementing the evolution of the control structures of the financial sector, the words "or a regulated real estate company" are inserted between the words "or in unlisted shares" and the words "accompanied by the Autorité des services et marchés financiers".
Art. 85. In section 171 of the same Code, last amended by the Program Act of 28 June 2013, the 3° quater is replaced by the following:
"3° quater at the rate of 15 p.c., the dividends distributed by a fixed capital investment corporation referred to in Articles 20, paragraph 1^erand 122, § 1^er, of the Act of 3 August 2012 on certain forms of collective investment portfolio management, which is the exclusive purpose of collective investment in the category "real property" referred to in Article 7, paragraph 1^er, 5°, of the said law, by a similar investment company referred to in book 3 of the said law or by a regulated real estate company referred to in article 2, 1°, 2° or 3° of the law of 12 May 2014 relating to regulated real estate companies, that this investment company or regulated real estate company publicly offers its securities in Belgium or not, as long as an exchange of information by the Member State concerned is organized For the purposes of this condition, "home" means both an individual dwelling and a collective dwelling such as a flat or a resting house."
Art. 86. In section 185bis of the same Code, inserted by the Act of 27 December 2006 and last amended by the Act of 30 July 2013, the following amendments are made:
(a) § 1^er is replaced by the following:
§ 1^er. By derogation from section 185, investment companies referred to in sections 15, 20, 26, 119, 122, 126 and 140 of the Act of 3 August 2012 relating to certain forms of collective investment management, regulated real estate companies, as well as pension financing organizations referred to in section 8 of the Act of 27 October 2006 relating to the control of professional pension institutions, shall be taxable only on the total amount of anormal benefits
(b) in § 2, paragraph 2, inserted by the law of 30 July 2013, the words "and regulated real estate companies" are inserted between the words "in the head of investment companies" and the words "seen in § 1^er".
Art. 87. Article 202, § 2, paragraph 3, 1 and 3, of the same Code, replaced by law 24 December 2002, is each time supplemented by the words "and regulated real estate companies. ".
Art. 88. In section 203, of the same Code, last amended by the Act of 22 December 2009 and by the Royal Decree of 3 March 2011, the following amendments are made:
(a) to § 1^erParagraph 1^er, a 2° bis is inserted between 2° and 3°, written as follows:
"2° bis a regulated real estate company, or a foreign company
- the main purpose of the acquisition or construction of buildings for the provision of users, or the direct or indirect detention of participations in entities with similar social purpose;
- that is subject to constraints, at least with the obligation to distribute part of its income to its shareholders;
- which, although subject to a tax referred to in the 1st, in the country of its tax domicile, benefits from a tax regime exorbitant of the common law;"
(b) in § 2, paragraph 2, the words “Par § 1^er, 2°, does not apply to investment companies" are replaced by the words "Paragraph 1^erParagraph 1^er, 2° and 2° bis, does not apply to dividends distributed respectively by the investment companies and companies referred to in § 1^erParagraph 1^er2° bis,
(c) in § 2, paragraph 4, the words "Article 6, paragraph 1^er, 2°, of the law of 20 July 2004" are replaced by the words "Article 3, 6°, of the law of 3 August 2012" and the words "Article 119" are replaced by the words "Article 140".
Art. 89. Article 205octies, 3°, of the same Code, inserted by law June 22, 2005, is supplemented by the words "and regulated real estate companies".
Art. 90. Article 210, § 1^erthe same Code, as amended by the Act of 16 July 2001 and by the Royal Decree of 3 March 2011 implementing the evolution of financial sector control structures, the following amendments are made:
(a) the 5th is replaced by the following:
"5° in the event of an approval as a fixed capital investment company in real property, by the Autorité des services et marchés financiers, with the exception of the approval as a fixed capital investment company in real estate or in unlisted shares of a company that, at the time of the approval, was already registered as a regulated real estate company".
(b) § 1^er is completed by a 6°, written as follows:
"6° in the event of registration as a regulated real estate company, by the Autorité des services et marchés financiers, with the exception of the registration as a regulated real estate company of a company that, at the time of registration, was already approved as a fixed capital investment company in real property or in unlisted shares".
Art. 91. In Article 211, § 1^er, paragraph 6, of the same Code, last amended by the Royal Decree of 3 March 2011 implementing the evolution of the control structures of the financial sector, the words "or a regulated real estate company" are inserted between the words "or in unlisted shares" and the words "accompanied by the Autorité des services et marchés financiers ou qui".
Art. 92. In article 215, paragraph 3, 6, of the same Code, as amended by the law of 27 December 2006, the words "or regulated real estate companies" are inserted between the words "investment portfolio" and the words "and pension financing organizations".
Art. 93. In article 217, 1°, of the same Code, inserted by the law of 29 March 2012, the words "and 6°" are inserted between the words "vised in articles 210, § 1^er5° and the words "and 211, § 1^erParagraph 6."
Art. 94. In article 231, § 2, paragraph 4, of the same Code, last amended by the law of 11 December 2008 and by the royal decree of 3 March 2011 implementing the evolution of the control structures of the financial sector, the words "or a regulated real estate company" are inserted between the words "or in unlisted shares" and the words "accompanied by the Autorité des services et marchés financiers".
Art. 95. Section 266, paragraph 2, of the same Code, replaced by Act 4 July 2004, is supplemented by a 4° written as follows:
"4° of shares or shares of a regulated real estate company except those distributed by an institutional regulated real estate company referred to in Article 2, 3° of the law of May 12, 2014, when they
- either fall within the scope of the Council Directive of 23 July 1990 (90/435/EEC) concerning the common taxation regime applicable to parent companies and affiliates of different Member States, as amended by the Council Directive of 22 December 2003 (2003/123/EC);
- is collected by a publicly regulated real estate company referred to in section 2, 2° of the same law and which are related to a participation of at least 10 p.c. in the capital of the corporation that distributes them, held for an uninterrupted period of at least one year.".
Art. 96. In section 269 of the same Code, last amended by the Program Act of 28 June 2013, the third is replaced by the following:
"3° at the rate of 15 p.c., the dividends distributed by a fixed capital investment corporation referred to in Articles 20, paragraph 1^erand 122, § 1^er, of the Act of 3 August 2012 on certain forms of collective investment portfolio management, which is the exclusive purpose of collective investment in the category "real property" referred to in Article 7, paragraph 1^er, 5°, of the said law, by a similar investment company referred to in book 3 of the said law or by a regulated real estate company, that this investment company or a regulated real estate company publicly offers its securities in Belgium or not, provided that an exchange of information by the Member State concerned is organized under article 338 or a similar regulation, to the extent that at least 80 p.c. of the real estate For the purposes of this condition, "home" means both an individual dwelling and a collective dwelling such as a flat or a resting house."
Art. 97. Section 95 of the Program Law of December 27, 2012 remains applicable to settled real estate companies arising from the approval of a settled real estate scaf as referred to in Chapter V.
CHAPTER III. - Amendments to the Value Added Tax Code
Art. 98. In Article 44, § 3, of the Value Added Tax Code, the 11° is replaced as follows:
"11° the management of collective investment organizations covered by the Act of 3 August 2012 on certain forms of collective management of investment portfolios, regulated public or institutional real estate companies referred to in Article 2, 1°, 2° and 3° of the Act of 12 May 2014 on regulated real estate companies, and pension financing organizations referred to in Article 8 of the Act of 27 October 2006 on the control of professional pension institutions;
CHAPTER IV. - Amendments to the Code of Miscellaneous Duties and Taxes
Art. 99. In article 120bis of the Code of Various Duties and Taxes, last amended by the law of 27 December 2006, a 2° bis is inserted between the 2° and the 3°, as follows:
"2° bis by regulated real estate company, any regulated real estate company, public or institutional, as referred to in Article 2 of the Law of May 12, 2014 on regulated real estate companies;".
Art. 100. Article 121, § 1^er, 1°, of the same Code, last amended by the law of December 28, 2011, is supplemented by the words "or by a regulated real estate company;".
Art. 101. Section 122, 3°, of the same Code, last amended by the Act of 28 December 2011, is supplemented by the words "or to the regulated real estate company;".
Art. 102. In article 1261, 2°, of the same Code, last amended by the law of 27 December 2006, the words ", by a regulated real estate company" are inserted between the words "collective placement agency" and the words "or by a non-resident".
CHAPTER V. - Amendments to the Code of Succession Rights
Art. 103. In section 161 of the Code of Succession Rights, last amended by the Act of 21 December 2007, the 1st is replaced as follows:
"1° the investment companies, referred to in Article 3, 11°, of the Act of 3 August 2012 on certain forms of collective management of investment portfolios, with the exception of private pricafs referred to in Article 140 of the same Act, and publicly regulated or institutionally regulated real estate companies referred to in Article 2, 1°, 2° and 3°, of the Law of 12 May 2014 on Regulated Real Estate Companies".
CHAPTER VI. - Amendments to the April 19, 2014 law on alternative collective investment organizations and their managers
Art. 104. Section 67 of the Act of April 19, 2014 on alternative collective investment organizations and their managers is replaced by the following:
"Art. 67. Without prejudice to section 36/33 of the Act of 22 February 1998, FSMA shall transmit to the Bank information collected under sections 60, paragraph 1^er and 63-66.
The Bank informs FSMA of the additional information it requires from managers under section 36/33, § 2, 3, of the Act of 22 February 1998. FSMA informs ESMA of the additional information required.
FSMA imposes additional reporting requirements at the request of ESMA. FSMA shall transmit the information referred to in this paragraph to the Bank.
FSMA agrees with the Bank on the practical modalities for the transmission of information referred to in this article. ".
Art. 105. Section 73 of the Act is repealed.
Art. 106. Section 74 of the Act is replaced by the following:
"Art. 74. FSMA shall ensure that all information gathered under articles 60, paragraph 1^er, and 63 to 67, with respect to all managers subject to the control of the MSDS, and the information collected under Article 13 shall be made available to the competent authorities of the other Member States concerned, the AESMA and the EESRB, using the procedures provided for in Article 346, §§ 1^er 5 on monitoring cooperation.
Where, as part of its monitoring mission to credit institutions, or on the basis of information received under section 67 and section 36/33 of the Act of 22 February 1998, the Bank is aware that a risk of significant counterparty in respect of a manager or OPCA is likely to arise in respect of a credit institution, or other institutions of systemic importance to the Bank. FSMA transmits this information bilaterally to the competent authorities of other Member States directly concerned, in accordance with the procedures provided for in Article 346 §§ 1^er 5.
Without prejudice to paragraph 2, FSMA shall inform the competent authorities of the other Member States directly concerned, in accordance with the procedures provided for in Article 346, §§ 1^er at 5, when it becomes aware, as part of its monitoring mission, that a manager or an OPCA subject to its control is likely to present an important counterparty risk to an institution of systemic importance of another Member State. It can determine quantitative criteria for this effect.".
Art. 107. Section 75 of the Act is replaced by the following:
"Art. 75. § 1^er. The manager demonstrates to the MSDS that the levers effect limits set for each OPCA that it manages are reasonable and that it meets these limits at any time. FSMA assesses the risks that a manager may use the leverage effect with respect to the OPCAs it manages. ADMSP may, inter alia, set levers to which a manager is empowered to use or impose any other restrictions on the management of managed OCAs.
As part of its mission under Chapter IV/3 of the Act of 22 February 1998, the Bank analyzes the information received from the MSDS in order to detect systemic risks, including specific leverage risks that may arise from the activities of managers. In this context, and without prejudice to section 36/39 of the Act of 22 February 1998, the Bank may, among other things, recommend to FSMA to set limits to the level of leverage that managers are empowered to use or impose any other restrictions on the management of managed OPCAs to limit the extent to which the use of leverage contributes to the increase of systemic risks in the financial system or the risks of disorganization of markets.
§ 2. Measures that MSDS may adopt under paragraph 1^er shall be taken only after notification to ESMA, ESRB and the competent authorities of the OPCA concerned by the procedures provided for in Article 346, §§ 1^er 5.
The notification referred to in paragraph 1^er is made at least ten working days before the expected effective date or renewal of the proposed measure. The notification includes details of the proposed measure, by motoring and specifying its intended date of entry into force. FSMA may decide that the proposed measure comes into force during the first sentence period.
If FSMA proposes to take measures contrary to the recommendation of the ESMA referred to in Article 25, paragraph 6 or 7, of Directive 2011/61/UE, it shall inform ESMA of its decision. ".
Art. 108. Section 502 of the Act, and Book IV - Provision for the entry into force of the provisions on systemic risk control - which immediately precedes it, are repealed."
CHAPTER VII. - Transitional provisions - Entry into force
Art. 109. Legal persons who, on the date of entry into force of this Act, acted as a member of the legal body of administration of the corporation or of the real estate sicaf, which requests its approval as a regulated real estate corporation, or the manager of that corporation or real estate sicaf having adopted the form of a share-sponsored corporation, are authorized to continue the exercise of their current mandate until the expiry of the current term.
Paragraph 1^er is also applicable to single-person private limited liability companies that, on the date of entry into force of this Act, were responsible for the effective direction of a real estate siaf.
Until the expiry of the terms referred to in this Article, Article 14, § 1^er, 2^e paragraph, is applicable to the permanent representative of the legal person.
Art. 110. Section 509 of the Act is replaced by the following:
"Art. 509. § 1^er. Investment corporations that opted for the authorized investment category referred to in section 7, paragraph 1^er5° of the Act of 3 August 2012 relating to certain forms of collective management of investment portfolios, which do not require their approval as a regulated real estate corporation in accordance with sections 77 and 78 of the Act of 12 May 2014 relating to regulated real estate companies and to the decrees and regulations made for its execution, remain subject, until the fourth month of the coming into force of the said Act, to the provisions of the Act of 3 August 2012
Effective the fourth month of the coming into force of the Act of 12 May 2014 on Regulated Real Estate Corporations, the investment companies referred to in paragraph 1^er are required to file an application for approval pursuant to Part II of the Act of 19 April 2014 relating to collective investment organizations and their managers and are subject to all of its provisions and to the orders and regulations made for its execution.
§ 2. Investment companies that opted for the authorized investment category referred to in section 7, paragraph 1^er, 5° of the Act of August 3, 2012 on certain forms of collective management of investment portfolios that require their approval as a regulated real estate corporation in accordance with sections 77 and 78 of the Act of May 12, 2014 relating to regulated real estate companies and to the decrees and regulations made for its execution remain subject to the provisions of the Act of August 3, 2012 and the decrees and regulations made for its execution, as in force on the date of the coming into force ".
Art. 111. The economic and budgetary impact of this Act is subject to periodic evaluation.
Art. 112. This Act comes into force on the date determined by the King, on the advice of the MSDS.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 12 May 2014.
PHILIPPE
By the King:
Minister of Economy,
J. VANDE LANOTTE
The Minister of Justice,
Ms. A. TURTELBOOM
Minister of Finance,
K. GEENS
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) House of Representatives (www.lachambre.be):
Documents: 53 - 3497
Full report: 22 April 2014
Senate (www.senate.be):
Documents: 5-2860
Annales du Senate : April 24, 2014