Law Supplementing, As Regards To Legal Remedies, Alternative Collective Investment Undertakings And Their Managers Act

Original Language Title: Loi complétant, en ce qui concerne les voies de recours, la loi relative aux organismes de placement collectif alternatifs et à leurs gestionnaires

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belgiquelex.be - Carrefour Bank of Legislation

10 AVRIL 2014. - An Act to supplement, with regard to remedies, the law relating to alternative collective investment organizations and their managers



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER Ier. - Introductory provisions
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. This Act provides for the partial transfer of Directive 2011/61/EU of the European Parliament and the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC as well as Regulations (EC) No. 1060/2009 and (EU) No. 1095/2010.
CHAPTER II. - Amendments to the Act of April 19, 2014 relating to managers of alternative collective investment organizations and their managers
Art. 3. In section 321 of the Act of April 19, 2014 on alternative collective investment organizations and their managers, the following amendments are made:
(1) existing paragraphs 6 and 7 shall, respectively, become paragraphs 7 and 8;
2° a new paragraph 6 is inserted, as follows:
§ 6. In case of forbearance to make the prior notifications prescribed by § 1er or 5 or in the event of an acquisition or increase of an participation in spite of the opposition of the MSDS referred to in § 3, the president of the trade tribunal in whose jurisdiction the management society of alternative collective investment bodies has its seat, ruling as referred, may take the measures referred to in Article 516, § 1er, the Corporate Code, as well as the cancellation of all or part of the general assembly proceedings held in the above cases.
The procedure is initiated by a quotation from FSMA.
Article 516, § 3 of the Corporate Code is applicable."
Art. 4. Section 322 of the Act is supplemented by a paragraph, which reads as follows:
"When voting rights have been exercised by the original holder or by a person, other than the receiver, acting on behalf of the holder after the deadline set in accordance with paragraph 1er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1er1°, the court of commerce in which the company has its seat may, upon request of the FSMA, declare the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered."
Art. 5. In section 360 of the Act, the following amendments are made:
(1) Existing paragraphs 7 and 8 shall become paragraphs 8 and 9;
2° it is inserted a new paragraph 7, which reads as follows:
"§ 7. The Court of Commerce shall decide on the application of any interested person, the invalidity provided for in paragraphs 2 and 3.
The nullity action is directed against the investment company and/or the management company concerned. 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 OPCA or the management corporation, the court may declare nullity in respect of such rights without effect, subject to the right of the applicant to damages and interests 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."
CHAPTER III. - Amendments to the Financial Sector Supervision and Financial Services Act of 2 August 2002
Art. 6. In section 121 of the Financial Sector Supervision and Financial Services Act of 2 August 2002, the following amendments are made to the Royal Decree of 12 November 2012:
1° in 4°, the words "of articles 110, 115, 151, 155, § 1erparagraph 3, 157, paragraph 2, 165, § 1erParagraph 1er166, § 1erParagraph 3 and § 3, and 255 of the Act of 3 August 2012 on certain forms of collective investment portfolio management are replaced by the words "Articles 110, 115, 151, 155, § 3, 165, § 1erParagraph 1er and § 2, 166, § 3 and 255 of the Act of 3 August 2012 on collective investment bodies that meet the requirements of Directive 2009/65/EC and the debt-taking institutions";
2° in the 4th, the words ", articles 362 and 365 of the Act of 19 April 2014 on alternative collective investment bodies and their managers" are inserted between the words "of the Act of 3 August 2012 on collective investment bodies that meet the requirements of Directive 2009/65/EC and the organizations of placement in receivables" and the words ", of Article 22, § 1eror Article 23, § 1er of the Act of 22 March 2006";
3° in 5°, the words "166 of the law of 3 August 2012 relating to certain forms of collective investment portfolio management" are replaced by the words "166, § 1er of the Act of 3 August 2012 on collective investment organizations that meet the requirements of Directive 2009/65/EC and debt-taking institutions";
4° 5° is supplemented by the words "and articles 232, 233, paragraph 2 and 267, paragraph 1er the Act of April 19, 2014 on alternative collective investment organizations and their managers".
Art. 7. In section 122 of the Act, last amended by the Act of 31 July 2013, the following amendments are made:
1° to 21° the words "the Act of August 3, 2012 on certain forms of collective investment portfolio management" are replaced each time by the words "the Act of August 3, 2012 on collective investment organizations that meet the requirements of Directive 2009/65/EC and on debt investment agencies";
2° the 26° is replaced by the following:
"26° to the collective investment management company, against the decisions of the MSDS made under Article 250, § 1er, paragraph 2, 1°, 2°, 3°, 4° and 5° of the law of 3 August 2012 mentioned above or the decrees referring to it. The same appeal shall be appealed against FSMA decisions taken under § 1er, 1°, of the above-mentioned article 250, or of the decrees referring to it, when the FSMA notified the management company that it will publish these decisions. The appeal is suspensive of the decision and its publication unless, due to a serious risk to investors, the FSMA has declared its binding decision notwithstanding appeal;"
3° the 26° /1 to 26° /6 are inserted, as follows:
"26° /1 to the applicant, against the refusal of registration decided by the MSDS pursuant to section 199 of the Act of April 19, 2014 relating to alternative collective investment organizations and their managers, or where the MSDS has not ruled within the time limits set out in section 199. In the latter case, the application for registration is supposed to be rejected. The same appeal is open to the investment agency against the refusal of registration decided by the MSDS pursuant to section 259, paragraph 2, of the Act of 19 April 2014 referred to above;
26° /2 to OPCA, against refusal of approval, refusal of approval or refusal of acceptance decided by the MSDS pursuant to sections 201, 203, paragraph 1er, 211, paragraph 1er or 213, paragraph 2 of the Act of 19 April 2014, or where the ADMSP has not ruled within three months of the introduction of a complete file. In the latter case, the application for approval, approval or acceptance is expected to be rejected;
26° /3 to the OPCA, against the decisions of the FSMA taken under Article 360, § 1erParagraph 2, 1 (iii) and (vi) of the Act of 19 April 2014 referred to above. The appeal suspends the enforcement of the decision unless the ADMSP decides otherwise in the event of a serious threat to creditors or participants;
26° /4 to the applicant, against the decisions taken by the MSDS regarding approval under Articles 16, 137, § 2, paragraph 2, 139, § 1er and 140, §§ 1er and 2 of the Act of 19 April 2014 referred to above. The same appeal shall be appealed to the applicant when FSMA has not ruled within the time limits set out in Article 16, § 1erParagraph 1er. In the latter case, the appeal is treated as if the application had been rejected;
26° /5 to the applicant, against the decisions made by the MSDS regarding approval under section 310 or 334 of the Act of 19 April 2014 referred to above. The same appeal shall be open to the applicant when the ADMSP has not decided within the time limits set out in paragraph 1er Article 310 above. In the latter case, the appeal is treated as if the application had been rejected;
26° /6 to the management company of OPCA, against the decisions of the FSMA taken under Article 360, § 1er, paragraph 2, 2°, (ii), (iii), (iv), (v) of the Act of 19 April 2014 referred to above or to the relevant orders. The same appeal is open against decisions of the MSDS made under Article 360, § 1er, paragraph 2, 1° above, or orders referring to it when the MSDS has been notified to the management company that it will publish these decisions. The appeal is suspensive of the decision and its publication unless, due to a serious risk to investors, FSMA has declared its enforceable decision notwithstanding appeal."
CHAPTER IV. - Entry into force
Art. 8. This Act comes into force on the day of the coming into force of the Act of April 19, 2014 on alternative collective investment organizations and their managers.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 10 April 2014.
PHILIPPE
By the King:
Minister of Economy,
J. VANDE LANOTTE
The Minister of the Interior,
Ms. J. MILQUET
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
House of Representatives
(www.lachambre.be)
Documents: 53 - 3433
Full report: 20 March 2014
Senate
(www.senate.be)
Documents: 5-2778
Annales of the Senate: April 3, 2014.