Law On The Integration Of Book Vii "payment And Credit Services" In The Code Of Economic Law, With Insertion Of Specific Definitions In Book Vii And The Penalties Relating To Offences In Book Vii, In Books I And Xv Of The Code Of Law "

Original Language Title: Loi portant insertion du livre VII "Services de paiement et de crédit » dans le Code de droit économique, portant insertion des définitions propres au livre VII et des peines relatives aux infractions au livre VII, dans les livres I et XV du Code de droit

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belgiquelex.be - Carrefour Bank of Legislation

19 AVRIL 2014. - An Act to include Book VII "Payment and Credit Services" in the Economic Law Code, to include the definitions specific to Book VII and penalties relating to Book VII offences, in Books I and XV of the Economic Law Code, and to make various other provisions (1)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I. - General provision
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - The Economic Law Code
Art. 2. In Book I, Title 2, of the Economic Law Code, a Chapter 5 is inserted, as follows:
"CHAPITRE 5. - Definitions specific to Book VII
Art. I. 9. For the purposes of Book VII, the following definitions are applied:
1° payment service: any service offered for sale in the course of a professional activity, mentioned below:
(a) services to pay cash on a payment account and all transactions required by the management of a payment account;
(b) services to remove cash from a payment account and all transactions required to manage a payment account;
(c) the execution of payment transactions, including transfers of funds on a payment account to the user's payment service provider or to another payment service provider:
- the execution of domiciles;
- the execution of payment transactions through a payment instrument;
- the execution of transfers, including permanent payment orders;
(d) the execution of payment transactions in which funds are covered by a credit granted to the user of payment services:
- the execution of domiciles;
- the execution of payment transactions through a payment instrument;
- the execution of transfers, including permanent payment orders;
(e) the issuance and/or acquisition of payment instruments;
(f) transfers of funds;
(g) the execution of payment transactions, where the consent of the payer to a payment transaction is given by means of any telecommunication, digital or computer device and the payment is sent to the operator of the system or network of telecommunications or computer, acting only as an intermediary between the user of payment services and the supplier of goods or services;
2° payment service provider: any legal person who provides payment services to a payment service user and who meets the characteristics of one of the institutions listed below:
(a) the credit institutions referred to in Article 1er2 of the Act of 22 March 1993 on the Status and Control of Credit Institutions;
(b) electronic currency institutions as referred to in Article 4, 31°, of the Act of 21 December 2009;
(c) Anonymous societe of public law bpost;
(d) payment institutions: legal persons who are authorized to provide payment services in accordance with the Act of 21 December 2009;
(e) the National Bank of Belgium and the European Central Bank, where they do not act as a monetary authority or other public authority;
(f) the Belgian federal, regional and local authorities, provided that they are empowered to do so under the legislation that regulates their missions and/or their statutes and do not act as public authority.
The person who provides payment services in the course of his or her usual or professional activity to a payment service user or remits electronic currency to an electronic currency holder without a necessary approval or authorization shall nevertheless be subject to the mandatory provisions of this Act;
3° payment service user: the natural or legal person who uses a payment service as a payer, beneficiary or both;
4° Payer: the natural or legal person who holds a payment account and authorizes an order of payment from that payment account, or the natural or legal person who, in the absence of a payment account, gives an order of payment;
5° Recipient: the natural or legal person who is the intended recipient of funds that have been the subject of a payment transaction;
6° payment transaction: an action initiated by the payer or the recipient, consisting of the payment, transfer or withdrawal of funds, regardless of any underlying obligation between the payer and the recipient;
7° order of payment: any instruction of a payer or beneficiary to his payment service provider requesting the execution of a payment transaction;
8° payment account: an account that is held on behalf of one or more users of payment services and is used for the purposes of the execution of payment transactions;
9° funds: bank notes and coins, scriptural currency and electronic currency within the meaning of Article 4, 11° of the Law of December 21, 2009;
10° payment instrument: any personalized device and/or set of procedures agreed between the payment service user and the payment service provider and to which the payment service user uses to initiate a payment order;
11° authentication: a procedure allowing the payment service provider to verify the use of a given payment instrument, including its custom security devices;
12° unique identifier: the combination of letters, numbers or symbols indicated to the payment service user by the payment service provider, which the payment service user must provide to allow the certain identification of the other payment service user and/or its payment account for a payment transaction;
13° domicile: a payment service to debit a payor's payment account, where a payment transaction is initiated by the recipient on the basis of the consent given by the payer to the recipient, the recipient's payment service provider or the payer's own payment service provider;
14° transfer of funds: a payment service by which the funds are received from a payer, without the creation of payment accounts on behalf of the payer or recipient, for the sole purpose of transferring a corresponding amount to a beneficiary or other payment service provider acting on behalf of the recipient, and/or by which such funds are received on behalf of the recipient and made available to the recipient;
15° payment system: a system for transferring funds, governed by standardised formal procedures and common rules for processing, compensation and/or payment transactions;
16° Framework contract: a payment services contract that governs the future execution of specific and successive payment transactions and may set out the obligations and conditions related to the opening of a payment account;
17th working day: a day in which the payer's payment service provider or the recipient's payment service provider involved in the execution of a payment transaction is accessible to carry out an activity that allows for payment transactions;
18° value date: the reference date used by a payment service provider to calculate interest applicable to funds debited from a payment account or credited to a payment account;
19° reference exchange rate: the exchange rate that serves as the basis for calculating exchange transactions and is made available by the payment service provider or emanates from a source accessible to the public;
20° base debtor rate: the base debtor rate to calculate the interest to be applied and from a publicly available source that can be verified by both parties to the payment services contract;
21° distance communication: any means that can be used to enter into a payment services contract without the simultaneous physical presence of the payment service provider and the payment service user;
22° durable support: any instrument that allows a person to store information that is addressed to him personally in a way that allows him to easily refer to it in the future for a period of time adapted for the purposes to which the information is intended and that allows the identical reproduction of the information stored;
23° custom security device: any technical means assigned by a payment service provider to a given user for the use of a payment instrument. This device specific to the user of payment services and placed in his custody, allows to verify the use of a given payment instrument and aims to authenticate the user;
24° agent: a natural or legal person acting on behalf of a payment institution for the provision of payment services;
25° Branch: an operating seat other than the central administration that is a part of a payment establishment, lender or credit intermediary, that has no legal personality, and that directly carries out, in whole or in part, the transactions inherent in the payment establishment, lender or credit intermediary activity; all operating seats created in the same Member State by a payment institution, lender or credit intermediary, having its central administration in another Member State are considered to be a single branch;
26° electronic currency: a monetary value that is stored in an electronic form, including magnetic, representing a debt on the issuer, which is issued against the remittance for payment transactions and is accepted by a natural or legal person other than the electronic currency issuer;
27° electronic currency issuer: the electronic currency issuer as referred to in Article 4, 32° of the Act of December 21, 2009;
28° electronic currency establishment: the establishment of electronic currency as referred to in Article 4, 31°, of the Act of December 21, 2009;
29° electronic currency holder: a natural or legal person who remits funds to an electronic currency issuer in exchange for the issuance of electronic currency by that issuer;
30th Act of December 21, 2009: the Act of December 21, 2009 on the Status of Payment Institutions and Electronic Currency Establishments, Access to Payment Service Provider Activity, Electronic Currency Emission Activity and Access to Payment Systems;
31° transfer: payment service provided by the payment service provider who holds the payment account of a payer, to credit, on the basis of an instruction given by the payer, the payment account of a beneficiary by a transaction or series of payment transactions, made from the payor's payment account;
32° Regulation (EC) No. 924/2009: Regulation (EC) No. 924/2009 of the European Parliament and Council of 16 September 2009 concerning cross-border payments in the Community and repealing Regulation (EC) No. 2560/2001;
33° Regulation (EU) No. 260/2012: Regulation (EU) No. 260/2012 of the European Parliament and the Council of 14 March 2012 establishing technical and commercial requirements for transfers and withdrawals in euros and amending Regulation (EC) No. 924/2009;
34° lender: any natural or legal person who consents to a credit in the course of its business or business activities, except for the person who offers or concludes a credit contract when the contract is subject to an immediate assignment or subrogation for the benefit of an authorized or registered lender, designated in the contract;
35° 'credit intermediary: a natural or legal person who does not act as a lender and who, in the course of carrying out his business or professional activities, against a remuneration that may be monetary or take any other form of economic benefit that has been agreed upon:
(a) presents or proposes consumer credit contracts;
(b) assist consumers by making preparatory work for credit contracts other than those referred to in (a);
(c) concludes credit contracts with consumers on behalf of the lender. is assimilated to it, the person who offers or consents credit contracts, where such contracts are subject to an immediate assignment or subrogation for the benefit of another registered or registered lender, designated in the contract;
36° related agent: a credit intermediary acting on behalf and under full and unconditional responsibility:
(a) one lender;
(b) a single group of lenders, or
(c) a number of lenders or lender groups that do not represent the majority of the market;
37° credit broker: the credit intermediary that is not a related agent;
Group 38: a group of lenders to be consolidated for the purpose of establishing consolidated accounts, as defined in Directive 2013/34/EU of the European Parliament and the Council of 26 June 2013 on annual financial statements, consolidated financial statements and related reports of certain forms of business;
39° credit contract: any contract under which a lender consents or undertakes to consent to a consumer a credit, in the form of a payment period, loan or other similar payment facility;
40° offers credit: the final issue of the lender's will that must be accepted by the consumer for the credit contract to be formed;
41° total cost of credit for the consumer: all costs related to the credit contract that the consumer must pay and that are known by the lender, with the exception of notary fees. These include:
(a) interest receivables;
(b) the commissions and/or remuneration that the credit intermediary receives for its intermediation;
(c) taxes;
(d) any costs of any kind, such as investigation fees, file design fees, file consultation fees, management, administration and encumberment fees, all charges related to a card, with the exception of what is referred to in (f);
(e) costs related to miscellaneous services related to the credit contract, including insurance premiums, if the conclusion of this service contract is obligatory to obtain the credit or under terms and conditions of business;
(f) the costs of holding an account, including a payment account, related to a credit contract on which payment transactions and debits are carried, the costs of using a payment instrument to carry out both payment transactions and debits as well as other costs related to such payment transactions, unless the opening of the account is optional and any charges related to that account have been clearly indicated
The total cost of credit for the consumer does not include:
(a) costs and allowances payable to the consumer in the event of non-performance of any of its obligations in the credit contract;
(b) costs, other than the purchase price, that are incurred in the acquisition of goods or services, whether the purchase is made in cash or on credit;
42° overall effective annual rate: the rate that expresses the equivalence, on an annual basis, of the updated values of all the commitments of the lender (pupils) and the consumer (refunds and total cost of the credit for the consumer), existing or future, and which is calculated on the basis of the elements indicated by the King and according to the mode it determines;
43° Advertising: any communication as referred to in article I. 8, 13°;
44° debtor rate: the rate of interest expressed as a fixed or variable percentage, applied on an annual basis on the part of the capital taken and calculated on the basis of the elements indicated by the King, by a deliberate order in the Council of Ministers, and in the manner determined, if any, including the method of calculating the delayed interest related thereto;
45° fixed debt rate: the debtor rate provided for by a provision of the credit contract under which the lender and the consumer agree to a single debt rate for the entire duration of the credit contract, or several debtor rates for partial periods by applying exclusively a given fixed percentage;
46° temperament sale: any credit contract, regardless of its qualification or form, which must normally take the acquisition of goods or services, sold by the lender or credit intermediary, referred to in 35°, c), last sentence, and the price of which is paid by periodic payments;
47° leasing: any credit contract, regardless of its qualification or form, by which one of the parties undertakes to provide the other party with the enjoyment of a tangible property at a specified price that the latter undertakes to pay periodically, and which includes, in an express or tacit way, an offer of purchase. For the purposes of this Act, the lessor is considered to be the lender or credit intermediary referred to in 35°, c), last sentence;
48° ready to temper: any credit contract, regardless of its qualification or form, under which a sum of money or other means of payment is made available to a consumer who undertakes to repay the loan by periodic payments;
49° credit opening: any credit contract, regardless of its qualification or form, under which a purchasing power, a sum of money or any other means of payment is made available to the consumer, who may use it by making one or more credit levies, including by means of a payment instrument or otherwise, and who agrees to repay under the agreed terms.
If it is not possible to make a new levy only with the prior agreement of the lender or with respect for conditions other than those initially agreed, then this levy is considered a new credit contract;
50° remote credit contract: any credit contract entered into in accordance with article I.8, 15° of this Code;
51° ease of discovery: an explicit credit opening under which a lender allows a consumer to have funds that exceed the available balance of the payment account attached to it;
52° exceeds: an easy-to-discovery facility that is tacitly accepted and under which a lender authorizes a consumer to dispose of funds that exceed the available balance of the consumer's payment account or the agreed overdraft facility;
53° Mortgage Credit: The purpose of the credit is to finance the acquisition or retention of real property rights, granted to a consumer, and
(a) is either guaranteed by a mortgage or a privilege on a building or a collateral in the same way,
(b) is a receivable arising from the subrogation of one or more third parties in the rights of a privileged creditor on a building,
(c) is stipulated with the right to request a mortgage guarantee, even if that right is stipulated in a separate act,
(d) is a mortgage guarantee for the benefit of the person who constitutes a security right;
54° consumer credit: the credit that, regardless of its qualification or form, is granted to a consumer and does not constitute a mortgage;
55° Debt mediation: the provision of services, excluding the conclusion of a credit contract, with a view to carrying out an adjustment of the terms and conditions of payment of the debt that are wholly or partially derived from one or more credit contracts;
56° data processing: the processing of personal data defined by Article 1er§ 2 of the Act of 8 December 1992 on the protection of privacy in respect of personal data processing;
57° file: the file defined in article 1er, § 3, of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing;
58° responsible for the treatment: the controller defined in section 1er§ 4 of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing;
59° establishment of the lender or credit intermediary: places where he or she usually operates his or her business or the establishment of another lender or credit intermediary;
60° capital: the principal debt on which the credit contract carries.
For uncovered facilities and overtakings without a phased refund method of the principal: the amount taken by the consumer, increased interest receivables accrued and, in the event of a mere delay in payment as referred to in Article VII.106, § 2, interest of delay accrued on the amount overrun;
61° capital amortization: the mode of repayment of the capital by which the consumer enters the obligation to make payments for the duration of the credit, which immediately reduce the capital to competition;
62° replenishment of capital: the mode of repayment of capital by which the consumer enters the obligation to make, during the term of the credit contract, payments that, although conventionally allocated to the repayment of capital, do not result in immediate release corresponding to the lender. They only reduce capital in times and under the conditions provided by the contract or by this book;
63° remaining balance due: the amount to be paid to amortize, reconstitute or repay the deducted capital;
64° related credit contract: a credit contract under which:
(a) the credit in question is used exclusively to finance a contract relating to the acquisition of particular property or the provision of particular services, and
(b) both contracts constitute, from an objective point of view, a commercial unit. A commercial unit is deemed to exist where the supplier or service provider itself finances the credit to the consumer or, in the case of financing by a third party, when the lender uses the services of the supplier or provider for the conclusion or preparation of the credit contract or when particular goods or the provision of a particular service are specifically mentioned in the credit contract;
65° credit amount: the ceiling or total of the amounts made available under a credit contract;
66° total amount due by the consumer: the sum of the amount of the credit and the total cost of the credit for the consumer including, in the case of a leasing credit, the residual value of the property to be paid when the purchase option is lifted;
67° FSMA: the Autorité des services et marchés financiers as referred to in Article 44 of the Act of 2 August 2002;
68° Bank: the National Bank of Belgium;
69° Centrale des Crédits aux Particuliers chargé des missions visées à l'article VII.127;
70° incidental service: a service offered to the consumer in conjunction with the credit contract or payment service;
71° credit institution: the credit institution as referred to in section 1er2 of the Act of 22 March 1993 on the Status and Control of Credit Institutions;
72° insurance company: the insurance company established in Belgium referred to in Article 2, § 1erthe Act of 9 July 1975 on the control of insurance companies;
73° regulated company: a regulated company within the meaning of Article 1er, 7°, of the Royal Decree of 21 November 2005 organizing the supplementary supervision of credit institutions, insurance companies, investment companies and management companies of collective investment organizations, being part of a financial service group, and amending the Royal Decree of 22 February 1991 on the general regulation of the control of insurance companies and the Royal Decree of 12 August 1994 on the control of consolidated on- basis
74° sub-agent: the natural or legal person who, as a credit intermediary, acts on behalf of and under the full and unconditional responsibility of a single credit intermediary;
75° constitutive act: all authentic and private acts and any document containing provisions governing the same credit;
76° original member state:
(a) where the lender or credit intermediary is a natural person, the member state in which its central administration is located;
(b) where the lender or credit intermediary is a legal entity, the Member State in which its registered office is located, or, if it has no statutory seat under its national law, the Member State in which its central administration is located;
77° Member State: the Member State, other than the Member State of origin, in which the lender or credit intermediary has a branch or offers services;
78° responsible for the distribution: any natural person in the direction of a lender, a credit intermediary or any worker in the service of such a person, and who, de facto, assumes responsibility for the intermediation activity or exercises control over it;
79° person in contact with the public: other persons of a lender or credit intermediary who, in any way, are in contact with the public in order to propose credit contracts or to provide information about them;
80° Act of 2 August 2002: Act of 2 August 2002 on financial sector monitoring and financial services;
81° incidental agents: vendors of non-financial goods and services acting as intermediary in consumer credit for incidental purposes and on behalf of one or more lenders. "
Art. 3. In the same Code, a book VII is inserted as follows:
"LIVRE VII. - PAYMENT AND CREDIT SERVICES
PART 1er. - General principles
Art. VII. 1. This book focuses on the regulation of payment services and credit contracts.
It aims at the transposition of the provisions:
1° of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the domestic market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC;
2° of the Directive 2008/48/EC of the European Parliament and the Council of 23 April 2008 on consumer credit contracts and repealing Council Directive 87/102/EEC;
3° Regulation (EC) No 924/2009 of the European Parliament and Council of 16 September 2009 concerning cross-border payments in the Community and repealing Regulation (EC) No 2560/2001;
4° of Directive 2011/90/EU of the Commission of 14 November 2011 amending Annex I, Part II, of Directive 2008/48/EC of the European Parliament and of the Council setting out the additional assumptions necessary for calculating the overall effective annual rate;
5° of Regulation (EU) No 260/2012 of the European Parliament and Council of 14 March 2012 establishing technical and commercial requirements for transfers and withdrawals in euros and amending Regulation (EC) No 924/2009.
PART 2. - Scope of application
Art. VII. 2. § 1er. Titles 3 and 5 to 7 of this book apply to payment services, to the extent that both the payer's and the recipient's payment service provider, or the sole payment service provider involved in the payment transaction, are located in a Member State.
Article VII. 47 is applied to payment services, as soon as the payment service provider of the payer or the beneficiary is located in Belgium.
Articles VII. 35 and VII. 36 are also applicable to payment services, as soon as the payer's payment service provider is located in Belgium.
The King may, by a deliberate order in the Council of Ministers, taking into account the comparable legal provisions applied in the other Member States, the nature and availability of the payment service offered and the real possibility for payment service providers to provide additional information, extend the list of the items listed in the preceding paragraph to Articles VII.4 to VII.19, VII.21, § 1er, VII.22, VII.24 to VII.27, VII.29 to VII.33, VII.39 to VII.41, VII.48 in VII.55, § 1er.
Unless otherwise provided, this book applies to payment services as referred to in § 1er, provided in euros or in the currency of a member state outside the euro area. However, articles VII.35 and VII.36 of this book apply to payment services irrespective of the currency used.
This book is also applicable to the issuance and reimbursement of electronic currency by electronic currency issuers.
§ 2. Titles 4 to 7 of this book apply to credit contracts with a consumer who has his habitual residence in Belgium provided that:
1° the lender exercises his professional activity in Belgium, or
2° by any means, directs this activity to Belgium or to several countries, including Belgium, and that the contract falls within the scope of this activity.
Chapter 1er Title 4 applies only to consumer credit.
Chapter 2 of Title 4 applies only to the mortgage.
Chapter 2 of Title 5 applies only to consumer credit.
Chapter 3 of Title 5 applies only to mortgage credit.
§ 3. Notwithstanding the provisions of §§ 1er and 2, the parties may, in accordance with Article 3 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), choose the law applicable to a contract meeting the conditions of Article 6, paragraph 1erRules. This choice, however, cannot result in depriving the consumer of the protection afforded to it by the provisions to which it cannot be derogated by agreement under the Belgian legislation which would have been applicable, in the absence of choice.
§ 4. Without prejudice to the provisions of articles VII. 26, VII. 54. and VII. 194 to VII. 208 inclusive, any stipulation contrary to the provisions of this book and its enforcement orders is prohibited and null and void as long as it is intended to restrict the rights of consumers or to increase their obligations.
Without prejudice to the provisions of Article VII.54, the terms and conditions or combinations of clauses and conditions that are intended to charge the user of payment services or the consumer, proof of compliance with all or part of the obligations referred to in this book, which are the responsibility of the provider of payment services, the lender or the credit intermediary, are prohibited and void of full right. It is the responsibility of the lender to provide evidence that the lender has complied with the obligations relating to the assessment of solvency, as set out in sections VII.69, VII.75 and VII.77, of the consumer and, where applicable, of the person who constitutes a personal overhead.
Art. VII. 3. § 1er. This book does not apply to:
1° payment transactions exclusively made in cash and going directly from the payer to the beneficiary, without any intermediary intervention;
2° payment transactions from the payer to the recipient, through a commercial agent authorized to negotiate or conclude the sale or purchase of goods or services on behalf of the payer or recipient;
3° physical transport of bank notes and professional documents, including their collection, processing and delivery;
4° payment transactions consisting of the collection and remission of non-professional species as part of a non-profit or charitable activity;
5° services for which cash is provided by the recipient for the benefit of the payer as part of a payment transaction, at the express request of the payment service user formulated just before the execution of the payment transaction via a payment for the purchase of goods or services;
6° exchange activities, i.e. "species against cash" transactions in which funds are not held on a payment account;
7° payment transactions based on one of the following documents, drawn from the payment service provider to make funds available to the recipient:
(a) a paper cheque referred to in section 1er Act of 1er March 1961 concerning the introduction in national legislation of the Uniform Cheque Act and its entry into force or any other similar form of paper cheque, such as the postal cheque referred to in the Act of 2 May 1956 on the postal cheque, a circular cheque or any other cheque that, whatever its name, carries the same legal consequences;
(b) a paper currency letter referred to in section 1er the coordinated laws of 31 December 1955 on the letter of exchange and the promissory note and any other similar form of paper letter of exchange which, regardless of its name, carries the same legal consequences;
(c) a paper-based service title, including the paper-based service title referred to in section 2, 1°, of the Act of 20 July 2001 to promote the development of services and local employment, and paper-based cheques;
(d) a paper travel cheque;
(e) a paper-based postal mandate issued and/or paid in cash at a post office or another postal service point;
8° payment transactions carried out within a system of payment or settlement of securities transactions between settlement agents, central counterparties, compensation boards and/or central banks and other system participants, and payment service providers, without prejudice to the provisions of section 49 of the Act of 21 December 2009;
9° payment transactions related to the asset and securities service, including the distribution of dividends, income or other, refunds or sales, made by persons referred to in 8° or by investment companies, credit institutions, collective investment organizations or portfolio management companies providing investment services and any other entity authorized to keep in deposit of financial instruments;
10° services provided by technical service providers in support of the provision of payment services, without entering, at any time, the funds to be transferred and consisting in, inter alia, the processing and recording of data, trust and privacy services, the authentication of data and entities, information technologies and the provision of communication networks, as well as the provision and maintenance of terminals and services
11° services based on payment instruments that cannot be used, for the acquisition of goods or services, only in the premises used by the transmitter or in the context of a trade agreement with the transmitter, within a limited network of service providers or for a limited range of goods or services, and that:
- these payment instruments are not directly or indirectly related to a credit contract, or
- if it is a payment instrument, on which may be loaded or unloaded of the electronic currency, no direct access to the payment account used to charge or unload the electronic currency is possible using this instrument;
12° payment transactions performed by a digital or computer telecommunications device, where the goods or services purchased are delivered and must be used by a digital or computer telecommunications device, provided that the operator of the telecommunications, digital or computer system does not act solely as an intermediary between the payment service user and the supplier of goods or services;
13° payment transactions between payment service providers, their agents or branches for their own account;
14° payment transactions between a parent company and its subsidiary or between subsidiaries of the same parent company, without any other payment service provider of a company of the same group acting as an intermediary;
15° cash withdrawal services by means of automatic ticket distributors, offered by vendors acting on behalf of one or more card issuers, who are not parties to the framework contract with the customer withdrawing money from a payment account, provided that these providers do not provide other payment services listed in I.9, 1°.
§ 2. This book does not apply to:
1° insurance contracts as well as contracts for the continued delivery of services or the delivery of goods of the same nature, under which the consumer regulates the cost of such services or goods, as long as they are provided, by instalment payments;
2° lease contracts in which the obligation to purchase the object of the contract is not provided in the contract itself or in a separate contract. Such an obligation shall be deemed to exist if the lessor so decides unilaterally;
3° consumer credit contracts without interest for which the credit is refunded within a period not exceeding two months, and for which the lender seeks costs less than 4.17 euros on a monthly basis. These costs include the costs referred to in I. 9, 41°, if necessary calculated on the basis of the items referred to in I. 9, 42°.
The threshold amount is indexed to 1er January of each year based on the following formula: 4,17 euros multiplied by the new index and divided by the starting index. The new index is the consumer price index of December of the previous year and the starting index is the consumer price index of December 2010. The indexed amount is rounded in accordance with the rules that are applicable to the borough of the debtor rate under section I. 9, 44°. The King may change the amount of this threshold;
4° the consumer credit contracts resulting from an agreement reached before a court or any other authority established by a law;
5° matrimonial brokerage contracts that fall under the law of 9 March 1993 to regulate and control the activities of matrimonial brokerage enterprises;
6° consumer credit contracts related to the payment period, without charge, for the settlement of an existing debt;
7° credit contracts awarded by the pebble mounds covered by the Act of 30 April 1848 on the reorganization of the pebbles;
8° interest-free and no-cost credit contracts that fall under section 18 of the Consumer Protection Act of 28 August 2011 in respect of contracts for the use of shared-time goods, long-term vacation products, resale and exchange.
§ 3. This book also does not apply to:
1° credit contracts covering amounts less than 200 euros, with the exception of the provisions of Articles VII. 1, VII. §§ 2 to 4, VII. 3, §§ 2 to 4, VII.64 to VII. 66, VII. 67 to VII.74, VII. 75, paragraph 1er, VII.79, paragraph 3, VII. 80, VII. 85 to VII. 90, VII. 94, VII. 98, VII. 99, VII. 105 to VII. 115, VII. 158 to VII. 188, VII. 194 to VII. 208, VII 215 to VII. 219;
2° uncovered facilities, refundable within one month, with the exception of the provisions referred to in Articles VII. 1, VII.2, paragraphs 2 to 4, VII. 3, §§ 2 to 4, VII. 68, VII. 71, § 3, VII. 72 and VII. 73, VII. 77, VII. 85 to VII. 87, VII. 88 and VII. 89, 99, § 1, VII. 100 and VII. 101, VII. 105 and VII. 106, VII. 107, VII. 112, VII 114 to VII. 122, VII. 158 to VII. 188, VII. 196, VII. 199, VII. 200, VII. 201, 1° and 2°, VII. 204, VII. 205, VII. 215 to VII. 219;
3° Discovery facilities, refundable at the lender's request or within a maximum period of three months, with the exception of the provisions of Articles VII. 1, VII.2, paragraphs 2 to 4, VII. 3, §§ 2 to 4, VII. 64, § 1erParagraph 1er, 1° to 3°, and § 2, VII. 65 and VII 66, VII. 67 to VII. 69, VII. 71 to VII 77, VII. 78, §§ 1 and 2, 1° to 13°, § 4, 1° and 2°, VII. 79, VII. 84 to VII. 95, VII. 96, § 1, VII. 97, § 2, VII.98, VII.99, § 1erVII. 100 to VII. 122, VII. 148 to VII. 188, VII. 194 to VII. 208, VII. 215 to VII. 219;
4° exceedances except for the provisions of Articles VII. 1, VII. §§ 2 to 4, VII. 3, §§ 2 to 4, VII. 64, § 2, VII. 65 and VII. 66, VII. 68, VII. 85, VII. 86, §§ 1 to 3, 5 to 7, VII. 87 to VII. 89, VII. 94, VII. 97, § 1, VII. 97, § 2, VII. 101, VII. 105 to VII. 107, VII. 112 to VII. 122, VII. 148 to VII. 188, VII. 196, VII. 199 in VII. 200, VII. 205, VII. 215 to VII. 219;
5° credit contracts with an investment company under the Act of August 2, 2002 or with a credit institution referred to in section 1er, paragraph 2, 1° of the Act of 22 March 1993 relating to the status and control of credit institutions, for the purpose of allowing an investor to make a transaction related to at least one of the financial instruments referred to in section 2, 1°, of the Act of 2 August 2002, when the investment undertaking or the crediting establishment is associated with that transaction, with the exception of the provisions of sections VII. 1, VII. §§ 2 to 4, VII. 3, §§ 2 tot 4, VII. 64 to VII. 78, VII. 86 to VII. 89, VII.94, VII. 96 to VII.108, VII. 112 to VII. 122, VII. 148 to VII. 188, VII. 194 to VII. 208, VII. 215 to VII. 219. In such cases and with respect to the use of credit, credit or investment also ensures compliance with the rules referred to in section 27 of the Act of 2 August 2002;
6° consumer credit contracts providing that payment times or reimbursement methods are the subject of an agreement between the lender and the consumer when the consumer is already in default of payment for the initial credit contract, and that:
(a) such an agreement would be likely to deviate the possibility of a court proceeding for the said default, and
(b) the consumer would thus not be subject to less favourable provisions than those of the initial credit contract, except for the provisions referred to in Articles VII. 1, VII. §§ 2 to 4, VII. 3, §§ 2 to 4, VII.64 to VII. 66, VII. 67 to VII. 69, VII. 71 to VII. 77, VII. 78, §§ 1, 2, 1° to 8°, 3, 2°, 3° in 4°, VII. 79, VII. 84, VII. 91, VII. 93, VII. 94 to VII. 108, VII. 112 to VII. 122, VII. 148 to VII. 188, VII. 194 to VII. 208, VII. 215 tot VII. 219. If the credit contract falls within the scope of the 3°, only the provisions of that paragraph apply. The exception referred to in this paragraph may apply only once.
§ 4. The King may determine that certain articles of this book, designated by him, do not apply:
1° to credit contracts that are granted by an employer to its employees in an incidental, interest-free or aggregate annual rates lower than those in the market and which are not offered to the public in general;
2° to the credit contracts granted, for the purpose of general interest, by public institutions or by private institutions approved for this purpose by the competent authority, to a restricted public and to a lower interest rate than that practised on the market, or without interest, or to other conditions that are more favourable to the consumer than those in force on the market and to interest rates that are not higher than those in the market.
PART 3. - Payment services
CHAPTER 1er. - Introductory provision
Art. VII. 4. The provisions of this title do not affect any other legal provisions contained in Title 4 of this book that would arise from additional requirements for pre-information or specific conditions, rights and obligations in respect of the granting of consumer credit.
CHAPTER 2. - Insulated payment transactions
Section 1re. - Scope of application
Art. VII. 5. This chapter applies to isolated payment transactions that are not covered by a framework contract.
Section 2. - Prerequisite information and conditions
Art. VII. 6. When a payment order for an isolated payment transaction is transmitted through a payment instrument under a framework contract, the payment service provider is not required to provide or make available information that has already been given to the payment service user on the basis of a framework contract with another payment service provider or that will be given to the payment service provider in accordance with the said framework contract.
Art. VII. 7. § 1er. Before the payment service user is bound by an isolated contract or offer of payment service, the payment service provider shall make available to the payment service user in a readily accessible form the information and conditions set out in Article VII.8.
Upon request from the payment service user, the payment service provider provides this information and conditions on a sustainable basis.
This information and conditions are communicated in easily understandable terms and in a clear and intelligible form in the language or languages of the linguistic region where the payment service is offered or in any other language agreed by the parties.
§ 2. If, at the request of the payment service user, the insulated payment service contract is entered into by a remote means of communication not allowing the payment service provider to comply with paragraph 1er, the latter meets the obligations arising out of the said paragraph immediately after the execution of the payment transaction.
§ 3. It is also possible to fulfill the obligations under § 1er providing a copy of the draft Isolated Payment Service Contract or the draft payment order containing the information and conditions defined in Article VII. 8.
Art. VII. 8. § 1er. The information and conditions to be provided or made available to the payment services user include at least:
1° of the specific information or unique identifier that the payment service user must provide for the correct execution of his payment order;
2° the maximum period of execution in which the payment service must be provided;
3° all fees payable by the payment service user to the payment service provider and, where applicable, the breakdown of the fee amounts;
4° where applicable, the actual or reference exchange rate that must be applied to the payment transaction.
§ 2. Where applicable, other relevant information and conditions referred to in Article VII. 13 are made available to the payment services user in an easily accessible form.
Section 3. - Information after payment order and after payment transaction
Art. VII. 9. Immediately after receiving the payment order, the payer's payment service provider shall provide the payer or make available to the payer in accordance with the terms and conditions set out in section VII. 7. § 1erthe following information:
1° a reference allowing the payer to identify the payment transaction and, where applicable, information relating to the recipient;
2° the amount of the payment transaction expressed in the currency used in the order of payment;
3° the amount of the fee payable to the payer for the payment transaction and, where applicable, the breakdown of the amounts of the payment;
4° where applicable, the exchange rate applied to the payment transaction by the payer's payment service provider or a reference to that rate, where it is different from the exchange rate provided in accordance with Article VII. 8, § 1er, 4°, and the amount of the payment transaction after this monetary conversion;
5° the date of receipt of the payment order.
Art. VII. 10. Immediately after the execution of the payment transaction, the recipient's payment service provider shall provide the recipient or make available to the recipient, in accordance with the terms referred to in Article VII. 7. § 1erthe following information:
1° references allowing the recipient to identify the payment transaction and, where applicable, the payer, as well as any information transmitted with the payment transaction;
2° the amount of the payment transaction in the currency in which the funds are available to the recipient;
3° the amount of the fee payable to the beneficiary for the payment transaction and, where applicable, the breakdown of the amounts of the fee;
4° where applicable, the exchange rate applied to the payment transaction by the recipient's payment service provider, and the amount of the payment transaction prior to that monetary conversion;
5° the credit value date.
CHAPTER 3. - Framework contract and individual payment transactions covered by it
Section 1re. - Scope of application
Art. VII. 11. This chapter applies to payment transactions covered by a framework contract.
Section 2. - Framework contract
Sub-section 1re. - Prerequisite information and conditions
Art. VII. 12. § 1er. In due course, before the payment service user is bound by a framework contract or offer, the payment service provider provides, on a sustainable basis, the information and conditions referred to in Article VII. 13.
This information and conditions are provided in easily understandable terms and in a clear and intelligible form, in the language of the linguistic region in which the payment service is offered or in any other language agreed by the parties.
§ 2. If, at the request of the payment service user, the framework contract is entered into by means of remote communication not allowing the payment service provider to comply with § 1erthe latter shall comply with the obligations arising out of the said paragraph immediately after the conclusion of the framework contract.
§ 3. It is also possible to fulfill the obligations under § 1er providing a copy of the draft framework contract with the information and conditions defined in Article VII.13.
When the framework contract relates to the opening of a payment account and it is possible that a surcharge is allowed to the consumer, the framework contract then mentions information regarding the debt rate referred to in Article VII. 71, § 2, paragraph 2, 5°. The payment service provider provides, in all cases, on a sustainable basis, such information at regular intervals, whether or not an actual exceedance occurs.
Art. VII. 13. The information and conditions to be provided to the payment services user include at least the following:
1° the payment service provider:
(a) the identity of the payment service provider, including, where appropriate, its business number, the geographic address of its central administration and, where applicable, the geographic address of its agent or branch established in Belgium in which the payment service is proposed, and all other addresses, including the e-mail address, to be taken into account for communication with the payment service provider, and
(b) the coordinates of the competent prudential control authority and the register concerned with that authority in which the payment service provider is registered for approval, as well as its registration number or equivalent means of identification of that register,
2° the use of a payment service:
a) a description of the main features of the payment service to be provided, including, where applicable, the possible uses of the payment instrument and in particular the question of whether it is possible to agree on the limits of expenses for the payment transactions carried out through the payment instrument, in accordance with Article VII. 29, § 1er,
(b) the specific information or unique identifier that the payment services user must provide for the correct execution of his payment order;
(c) the form and procedure for giving consent to the execution of a payment transaction and the withdrawal of that consent, in accordance with Articles VII. 27 and VII. 41,
(d) a reference at the time of receipt of the payment order as defined in Article VII. 39 and the possible deadline established by the payment service provider,
(e) the maximum delivery time in which the payment service must be provided,
3° fees, interest rates and exchange rates:
(a) all fees payable by the user of payment services to his or her payment service provider and, where applicable, the breakdown of the amounts of such fees,
(b) where applicable, interest rates on an annual basis and exchange rates to be applied or, if interest and reference exchange rates are to be used, the method of calculating the real interest, and the date and the index or base to determine such a reference interest or exchange rate, and
(c) if agreed in this manner, the immediate application of the changes to the benchmark interest or exchange rates and the information requirements for these amendments, in accordance with Article VII. 15, § 2,
4° the communication:
(a) where appropriate, means of communication, including technical requirements for the equipment of the payment service user, agreed between the parties for the purpose of transmitting information or notifications under this Act;
(b) the terms and frequency that the information provided by this Act is provided or made available;
(c) the language(s) in which the framework contract will be concluded and the communication made during the contractual relationship, and
(d) the right of the user of payment services to receive the contractual terms of the framework contract, as well as the information and conditions provided for in Article VII. 14,
5° protection measures and corrective measures
(a) where appropriate, a description of the risks and precautionary measures that the user of payment services takes to preserve the security of a payment instrument and the terms and conditions of notification to the payment service provider under Article VII. 30, § 1er2°,
(b) if so agreed, the conditions under which the payment service provider reserves the right to block a payment instrument in accordance with Article VII. 29,
(c) the liability of the payer in accordance with Article VII. 36, including information on the amount concerned,
(d) the period and the terms and conditions under which the payment service user shall notify the payment service provider of the non-authorized or improperly executed payment transactions in accordance with Article VII. 33 and the liability of the payment service provider for unauthorized payment transactions, in accordance with Article VII. 35,
(e) the liability of the payment service provider for the execution of payment transactions in accordance with Articles VII. 49 to VII. 51,
(f) the conditions of reimbursement in accordance with Articles VII. 37 and VII.38,
6° the modification and termination of the framework contract:
(a) if so agreed, the fact that the user of payment services is deemed to have accepted the amendment of the terms in accordance with section VII. 15 unless notified to the payment service provider of its refusal to do so before the proposed date for the coming into force of this amendment,
(b) the duration of the framework contract,
(c) the right of the user of payment services to terminate the framework contract and any agreement related to that termination, in accordance with Articles VII. 15, § 1er and VII. 16,
7th appeal:
(a) any contractual clause relating to the law applicable to the framework contract and/or the competent court,
(b) alternative claims and remedies open to the user of payment services, in accordance with Book XVI, including the physical address of the proceeding in which the user of payment services may address his claims, including the contact information of the Directorate General Economic Inspection with the SPF Economy.
Art. VII. 14. During the contractual period, the user of payment services has, at any time, the right to receive, upon request, the contractual terms of the framework contract, as well as the information and conditions referred to in Article VII. 13, on a sustainable basis.
Sub-section 2. - Change of conditions and termination of the framework contract
Art. VII. 15. § 1er. Any modification of the framework contract, as well as the information and conditions referred to in Article VII. 13, is proposed by the payment service provider in accordance with the terms set out in Article VII. 12, § 1erand no later than two months before the proposed date for its entry into force.
In the event that section VII 13, 6°, (a), applies, the payment service provider shall inform the payment service user that it is deemed to have accepted the amendment if it did not notify the payment service provider before the proposed effective date of this amendment, that it did not accept it. In this case, the payment service provider also specifies that the payment service user has the right to terminate the framework contract immediately and without charge, before the proposed effective date of the amendment.
§ 2. Changes in interest or exchange rates may apply immediately and without notice, provided that the framework contract provides for this right and that the changes are based on the rates of interest or reference exchange agreed in accordance with Article VII.13, 3°, (b) and (c).
The payment service user is informed of any changes to the interest rate as soon as possible, in accordance with the terms and conditions set out in Article VII. 12, § 1erunless the parties agree on a particular frequency or terms of the provision or provision of the information. However, changes in interest or exchange rates that are more favourable to users of payment services may be applied without notice.
§ 3. Changes in interest or exchange rates applied to payment transactions are implemented and calculated in a neutral manner that does not discriminate against users of payment services.
Art. VII. 16. § 1er. The payment services user may, at any time, terminate the framework contract without charge and with immediate effect, unless a maximum notice period of one month has been agreed.
If the framework contract provides, the payment service provider may, as provided for in Article VII. 12, § 1er, terminate a framework contract for an indefinite period, with a notice of at least two months.
§ 2. The fees regularly charged for the provision of payment services are payable by the user of payment services only on the prorated basis of the period after the end of the contract. If they have been paid in advance, these costs are refunded without delay on a pro-rata basis from the month following the date of termination.
The payment service provider will pay to the payment service user, at no additional cost, the positive balance of the payment account including all interest to which it is entitled under the legal and regulatory provisions as well as general terms and conditions or will pay it on a payment account of a payment service provider.
After the close of a payment account, the payment service provider is required to reimburse the management fees paid by the payment service user on an annual basis for the payment account, in the amount of the full number of calendar months from the month following the closing date of the account until the end of the period for which the management fees were paid.
§ 3. This section also applies to savings accounts referred to in section 2 of the Royal Decree of 27 August 1993 for the execution of the Income Tax Code 1992.
Section 3. - Individual payment transactions
Sub-section 1re. - Information before the execution of the payment transaction
Art. VII. 17. For any individual payment transaction under a framework contract initiated by the payer, the payment service provider shall, at the request of the payer and prior to the payment transaction, provide explicit information on its maximum delivery time and on fees that must be paid by the payer and, where applicable, the breakdown of the amounts of such costs.
Sub-section 2. - Information after the execution of the payment transaction
Art. VII. 18. § 1er. After the amount of an individual payment transaction has been debited from the payer's account or, where the payer does not use a payment account, after receipt of the payment order, the payer's payment service provider shall, without delay and in accordance with the terms and conditions specified in Article VII.12, § 1erthe following information:
1° a reference allowing the payer to identify each payment transaction and, where applicable, information relating to the recipient;
2° the amount of the payment transaction expressed in the currency in which the payor's payment account is debited or in the currency used in the payment order;
3° the amount of all fees applied to the payment transaction and, if applicable, their breakdown, or interest due by the payer;
4° where applicable, the exchange rate applied to the payment transaction by the payor's payment service provider and the amount of the payment transaction after that money conversion;
5° the date of the debit or the date of receipt of the order of payment.
§ 2. A framework contract may provide for a condition that the information referred to in § 1er are provided or made available periodically, at least once a month, and in accordance with agreed terms and conditions that allow the payer to store and reproduce the information on an identical basis, so as to allow the payer to reasonably monitor the status of its expenditures.
§ 3. The King may, by derogation from § 2 and in accordance with the terms that it determines, by order deliberately in the Council of Ministers, prescribing that the payment service provider must provide free of charge to the payer's request the information referred to in § 1er paper once a month.
Art. VII. 19. § 1er. After performing an individual payment transaction, the recipient's payment service provider shall provide the recipient without delay and in accordance with the terms and conditions set out in Article VII. 12, § 1erthe following information:
1° a reference allowing the recipient to identify the payment transaction and, where applicable, the payer, as well as any information provided during the payment transaction;
2° the amount of the payment transaction expressed in the currency in which the beneficiary's payment account is credited;
3° the amount of all fees applied to the payment transaction and, where applicable, their breakdown, or interest due by the beneficiary;
4° where applicable, the exchange rate applied to the payment transaction by the recipient's payment service provider and the amount of the payment transaction prior to that monetary conversion;
5° the credit value date.
§ 2. A framework contract may provide for a condition that the information referred to in § 1er must be provided or made available periodically, at least once a month, and in accordance with agreed terms and conditions that allow the recipient to store and reproduce the information on an identical basis, so as to allow the recipient to reasonably monitor the status of its expenditures.
§ 3. The King may, by derogation from § 2 and in accordance with the manner in which he determines, by order deliberately in the Council of Ministers, prescribing that the payment service provider must provide free of charge to the request of the beneficiary the information referred to in § 1er paper once a month.
Section 4. - Derogatory provisions
Art. VII. 20. § 1er. In the case of payment instruments that, in accordance with the framework contract, relate exclusively to payment transactions not exceeding 30 euros per unit or, either have a limit of expenditures of 150 euros, or store funds that do not exceed at any time 150 euros, this chapter will apply to the extent described below:
1° by derogation from articles VII. 12, VII. 13 and VII. 17, the payment service provider only provides the payer with information on the main features of the payment service, including how the payment instrument can be used, liability, fees collected, and other concrete information required to make a decision in the knowledge of the case and an indication of where the other information and conditions defined in Article VII. 13 are readily available;
2° it may be agreed that by derogation from Article VII. 15, the payment service provider is not required to propose an amendment to the terms of the framework contract in the manner provided for in Article VII. 12, § 1er;
3° it may be agreed that by derogation from articles VII. 18 and VII. 19, after execution of a payment transaction:
(a) the payment service provider shall provide or make available only a reference allowing the payment service user to identify the payment transaction, its amount and fees and/or, in the event of multiple payment transactions of the same type to the same beneficiary, only information concerning the total amount and costs of such payment transactions;
(b) the payment service provider is not required to provide or make available the information referred to in (a) if the payment instrument is used anonymously or if the payment service provider is otherwise technically unable to provide it. However, the payment service provider provides the payer with the opportunity to verify the amount of the funds stored.
§ 2. For national payment transactions, the King may, by order deliberately in the Council of Ministers, reduce or double the amounts referred to in § 1erParagraph 1er and for prepaid payment instruments increase up to 500 euros.
CHAPTER 4. - Provisions common to all payment transactions referred to in Chapters 2 and 3
Art. VII. 21. § 1er. Payments are made in the currency agreed by the parties.
§ 2. When a money conversion service is proposed prior to the initiation of the payment transaction by a third party to the framework contract and when the money conversion service is proposed at the point of sale or by the beneficiary, the party proposing it to the payer is required to inform the payer of all fees applied, as well as the exchange rate that will be used for the purpose of the conversion of the payment transaction.
The payer accepts the money conversion service offered on this basis.
Art. VII. 22. When, for the purpose of using a particular payment instrument, the beneficiary requests a fee or offers a reduction, the recipient shall notify the payer before the initiation of the payment transaction.
When, for the purpose of using a particular payment instrument, a payment service provider or a third party requests fees, the payment service user shall inform the payment service user before the initiation of the payment transaction.
Art. VII. 23. Where a contract for payment services is entered into remotely, the information referred to in Articles VII. 7, VII. 8, VII. 12 and VII. 13, replace the information referred to in Article VI. 55, § 1er, the Economic Law Code, with the exception of 2°, (c) to (g), 3°, (a), (d) and (e), and 4°, (b).
Art. VII. 24. § 1er. The payment service provider does not charge the payment services user to provide information under this title.
§ 2. The payment service provider and the payment service user may agree to charge fees for additional information, for information communicated more frequently or for information transmitted by other means of communication than those provided by the framework contract and provided at the request of the payment service user.
Where the payment service provider may, in accordance with the preceding paragraph, charge fees, the payment service provider shall be appropriate and in accordance with the actual costs incurred by the payment service provider.
Art. VII. 25. The burden of proof of the performance of the information obligations referred to in this title rests with the payment service provider.
Art. VII. 26. The parties may agree not to apply, in whole or in part, the provisions of this title unless the user of payment services is a consumer.
CHAPTER 5. - Authorization of payment transactions
Section 1re. - Consent to the execution of payment transactions and possible limitations of the use of payment instruments
Art. VII. 27. § 1er. A payment transaction is deemed to be authorized if the payer has consented to the execution of the payment order.
A payment transaction may be previously authorized by the payer or after its execution if the payer and its payment service provider have so agreed.
§ 2. Consent to the execution of a payment transaction or a series of payment transactions is given in the agreed form between the payer and its payment service provider and in accordance with the agreed procedure.
In the absence of such consent, the payment transaction is deemed to be unauthorized.
§ 3. Consent may at any time be withdrawn by the payer, but in no case after the noticeable moment referred to in Article VII. 41.
Consent to the execution of a series of payment transactions may also be withdrawn with the effect that any subsequent payment transaction must be deemed unauthorized.
Art. VII. 28. § 1er. The realization of the domicile requires the award of a warrant by the payer to, as the case may be, one or more of the following persons:
1° the beneficiary;
2° the recipient's payment service provider;
3° the payor's payment service provider.
A copy must be delivered to the payer.
§ 2. Even if the term referred to in § 1erParagraph 1er is not repeated in the same instrumentum as the principal contract of which it guarantees execution, the mandate shall meet at least the following conditions:
1° express consent of the payer;
2° the power of attorney to be given must refer expressly to the underlying contract which in turn determines the scope of the receivables domiciled in respect of nature, maturity and, if possible, the fair amount.
The domicile can only be valid if the payer has previously been informed of the underlying contract.
§ 3. Without prejudice to the application of Article VII. 37, § 3, if the fair amount or the debit date is not determined at the time of the conclusion of the debit, the beneficiary shall notify the payer at the agreed date, within a reasonable period prior to the initiation of each payment transaction.
§ 4. A domicile and mandate attached to it may be terminated by each party at any time by notification to the contracting party.
The termination of residence by the payer is valid and enforceable to all its agents when the payer notifies it either to its creditor or to its payment service provider if the latter was expressly agreed.
Art. VII. 29. § 1er. When a specific payment instrument is used to give consent, the payer and its payment service provider may agree on spending limits for payment transactions performed through the payment instrument.
§ 2. If the framework contract provides, the payment service provider may reserve the right to block the payment instrument for objectively motivated reasons relating to the security of the payment instrument, the presumption of an unauthorized or fraudulent use of the payment instrument, or, if it is a payment instrument with a credit contract, at the significantly increased risk that the payor would have to pay.
In such cases, the payment service provider shall inform the payer in the manner agreed and without prejudice to the application of section VII. 98, § 2, the blocking of the payment instrument and the reasons for this blocking, if possible before the payment instrument is blocked and no later than immediately thereafter.
The provision of the information referred to in the preceding paragraph is not required if it is counterbalanced by objectively motivated or prohibited security reasons under other applicable legislation.
The payment service provider unlocks the payment instrument or replaces it with a new payment instrument as long as the reasons for blocking no longer exist.
Section 2. - Payment instruments obligations
Art. VII. 30. § 1er. The user of payment services authorized to use a payment instrument has the following obligations:
1° it uses the payment instrument in accordance with the conditions governing the issuance and use of this payment instrument;
2° where he is aware of the loss, theft, the diversion or any unauthorized use of his payment instrument, he shall promptly inform his payment service provider or the entity indicated by the payment service provider.
§ 2. Pursuant to § 1er, 1°, the payment service user takes, as soon as he receives a payment instrument, all reasonable measures to preserve the security of the payment instrument and its personal security devices.
Art. VII. 31. The payment service provider issuing a payment instrument has the following obligations:
1° it ensures that custom security devices of any payment instrument are not accessible to other parties than the user of payment services authorized to use this instrument, without prejudice to the obligations of the user of payment services referred to in Article VII. 30;
2° it refrains from sending any unsolicited payment instrument, except where a payment instrument already given to the payment service user must be replaced;
3° it ensures the availability, at any time, of appropriate means enabling the user of payment services to make the notification referred to in Article VII. 30, § 1er, 2°, or to request the release in accordance with Article VII. 29, § 2, last paragraph; the payment service provider shall, upon request, provide the payment service user, for eighteen months from the date of notification, with the means to prove that the payment service provider has made the notification;
4° it prevents any use of the payment instrument after a notification made under Article VII. 30, § 1er2°;
5° it bears the risk associated with sending a payment instrument or any means that allows the use of it, in particular any personal security device of it.
Art. VII. 32. The payment service provider must maintain an internal register of payment transactions for a period of at least five years from the execution of the transactions.
This provision does not prejudice other legal provisions in the provision of supporting documents.
Section 3. - Notification and dispute in the event of unauthorized or not properly executed payment transactions
Art. VII. 33. The user of payment services obtains, from the payment service provider, the correction of a transaction only if he promptly reports to his payment service provider that he has found an unauthorized or not properly executed payment transaction giving rise to a claim, including a claim under Articles VII. 49 to VII. 51, and no later than 13 months after the debit or credit date, unless, where applicable, the payment service provider has not provided or made available the information relating to the payment transaction in accordance with Article VII. 4 to VII. 26 of this book.
Art. VII. 34. § 1er. When a payment service user denies having authorized a payment transaction that has been performed, or claims that the payment transaction has not been performed correctly, it is the responsibility of the payment service provider to prove that the transaction in question has been authenticated, duly recorded and recorded and has not been affected by a technical or other deficiency.
§ 2. When a user of payment services denies having authorized a payment transaction that has been performed, the use of a payment instrument, as recorded by the payment service provider, is not necessarily sufficient as such to prove that the payment transaction has been authorized by the payer or that the payer has acted fraudulently or has not met, intentionally or as a result of serious negligence, 30.
§ 3. The King may impose the rules to which proof of authentication, registration and accounting of the disputed payment transaction must be satisfied. It may make a distinction based on the nature of the payment transaction and the payment instrument used to initiate a payment order. The King may also enact the applicable sanctions in the event of non-compliance with the rules so imposed.
Section 4. - Liability for unauthorized payment transactions
Art. VII. 35. Without prejudice to the application of Article VII. 33, the payer's payment service provider must, in the event of an unauthorized payment transaction, after a prima facie check for fraud in the payor's head, immediately reimburse the payer for the amount of that unauthorized payment transaction and, if necessary, restore the debited payment account in the condition that it would have been found if the unauthorized payment transaction had not taken place, if any increased interest on that amount.
In addition, the payer's payment service provider must reimburse any other possible financial consequences, including the amount of costs incurred by the licensee for the determination of compensation.
Art. VII. 36. § 1er. By derogation from Article VII. 35, the payer shall bear, up to 150 euros, up to the notification made in accordance with Article VII. 30, § 1er, 2°, losses related to any unauthorized payment transaction resulting from the use of a lost or stolen payment instrument or, if the payer has not managed to preserve the security of his personal security devices, the diversion of a payment instrument.
The payer shall bear all losses caused by unauthorized payment transactions if these losses result either from a fraudulent act on his or her part, or from the fact that he has not, intentionally or as a result of serious negligence, complied with one or more of his or her obligations under section VII. 30. In such cases, the maximum amount referred to in paragraph 1er does not apply.
Where the payer has not acted fraudulently or intentionally failed to comply with its obligations under section VII. 30. The Panel shall not, by derogation from the preceding paragraphs, bear any loss in the following cases:
1° if the payment instrument has been used without physical presentation and without electronic identification;
2° if the payment instrument was copied by a third party or was unduly used as long as the payer was, at the time of the disputed transaction, in possession of the payment instrument.
§ 2. Unless the payment service provider demonstrates that the payer has acted fraudulently, the payer does not bear any financial consequences resulting from the use of a lost, stolen or diverted payment instrument that occurred after the notification provided for in Article VII. 30, § 1erTwo.
§ 3. The burden of proof in respect of fraud, intent or serious negligence lies with the payment service provider.
These include serious negligence under § 1er, the fact, for the payer to note his or her personal security devices, such as his or her personal identification number or any other code, in a readily recognizable form, including on the payment instrument or on an object or document retained or carried by the payer with the payment instrument, as well as the fact that he or she has not notified the payment service provider or entity indicated by that person, the loss or the loss of knowledge.
For the assessment of negligence, the judge shall take into account all circumstances of fact. Production by the payment service provider of the registrations referred to in Article VII. 34 and the use of the payment instrument with the known code of the only user of payment services does not constitute a sufficient presumption of the negligence of the user.
Section 5. - Payment transactions initiated by or via the recipient
Art. VII. 37. § 1er. The payer's payment service provider must reimburse the payer for an authorized payment transaction initiated by or via the recipient, which has already been executed, provided that the following conditions are met:
1° the authorization did not indicate the exact amount of the payment transaction when it was given, and
2° the amount of the payment transaction exceeded the amount to which the payer could reasonably expect, taking into account the profile of his past expenditures, the terms and conditions set out in the framework contract and the relevant circumstances of the case.
At the request of the payment service provider, the payer provides factual elements related to these conditions.
The refund is the total amount of the payment transaction executed.
For home payments, the payer and his or her payment service provider may agree in the framework contract that the payer is entitled to reimbursement by his or her payment service provider even if the terms and conditions relating to the reimbursement provided in the first paragraph are not met.
§ 2. Pursuant to § 1erParagraph 1er, 2°, however, the payer may not invoke reasons related to a foreign exchange transaction if the reference exchange rate agreed with its payment service provider in accordance with section VII. 8, § 1er, 4°, and VII. 13, 3°, b), was applied.
§ 3. It may be agreed in the framework contract between the payer and its payment service provider that the payer is not entitled to a refund provided that:
1° he gave his consent to the execution of the payment transaction directly to his payment service provider, and
2° the information relating to the future payment transaction was provided to the payer or made available to the payer in the manner agreed, at least four weeks before the due date, by the payment service provider or by the beneficiary.
Art. VII. 38. § 1er. The payer may claim the refund referred to in section VII. 37, a payment transaction authorized and initiated by or via the beneficiary for a period of eight weeks from the date on which the funds were debited.
§ 2. Within ten working days of receipt of the refund request, the payment service provider shall be reimbursed the total amount of the payment transaction, or shall justify its refusal to refund, indicating the organizations that the payer may then seize, in accordance with the provisions of Book XV and Article VII. 216, if it does not accept the justification given.
The right of the payment service provider referred to in paragraph 1erto refuse reimbursement does not apply in the case referred to in section VII. 37, § 1erlast paragraph
CHAPTER 6. - Implementation of payment transactions
Section 1re. - Payment orders and transferred amounts
Art. VII. 39. § 1er. The time of receipt of the payment order is the time when the payment order, which is transmitted directly by the payer or indirectly by or via a beneficiary, is received by the payer's payment service provider. If the time of receipt is not a business day for the payer's payment service provider, the payment order is deemed to have been received on the next business day.
The payment service provider may establish a time limit, close to the end of a business day, beyond which any payment order received is deemed to have been received on the next business day.
§ 2. If the payment service user who initiates the payment order and the payment service provider agrees that the execution of the payment order will begin either on a given day or at the end of a specified period, or on the day the payer has made the funds available to the payment service provider, the time of receipt of the order under Article VII. 44 is deemed to be the agreed day. If the agreed day is not a business day for the payment service provider, the payment order is deemed to have been received on the next business day.
Art. VII. 40. § 1er. When the payment service provider refuses to execute a payment order, the refusal and, if possible, the reasons for this refusal and the procedure to be followed to correct any factual error resulting from it are notified to the payment service user, without prejudice to the application of section 12 of the Act of 11 January 1993 on the prevention of the use of the financial system for the purposes of money laundering and the prohibition of the financing of terrorism or
The payment service provider shall provide notification or make it available in accordance with the agreed terms and conditions as soon as possible and, in any case, within the time limits referred to in Article VII. 44.
The framework contract may provide for the possibility for the payment service provider to charge fees for such notification if the refusal is objectively justified.
§ 2. Where all the conditions set out in the payer's framework contract are met, the payer's payment service provider may not refuse to execute an authorized payment order, whether the payment order is initiated by a payer or by or via a beneficiary, without prejudice to the application of section 12 of the Act of 11 January 1993 relating to the prevention of the use of the financial system for the purposes of money laundering and the prohibition of the financing of terrorism or
§ 3. For the purposes of articles VII. 44, VII 49 and VII. 50, an order of payment whose execution was refused is deemed not received.
Art. VII. 41. The payment service user may no longer revoke a payment order once it has been received by the payer's payment service provider, unless otherwise provided in this section.
When the payment transaction is initiated by or via the beneficiary, the payer may not revoke the payment order after transmitting the payment order or giving consent to the execution of the payment transaction to the beneficiary.
However, in the event of domicile and without prejudice to the right to reimbursement, the payer may revoke the payment order by the end of the business day preceding the agreed day for the flow of funds.
In the case referred to in Article VII 39, § 2, the user of payment services may revoke a payment order by the end of the business day before the agreed day.
After expiry of the deadlines referred to in subparagraphs 1er at 4, the payment order can only be revoked if the payment service user and his payment service provider have so agreed. In the cases referred to in paragraphs 2 and 3, the consent of the recipient is also required. If the framework contract provides, the payment service provider may charge fees for the exercise of this additional revocation right.
Art. VII. 42. The payer's payment service provider, the recipient's payment service provider and the payment service provider's intermediaries transfer the total amount of the payment transaction and refrain from taking costs on the transferred amount.
However, the recipient and its payment service provider may agree that the payment service deducts its costs from the amount transferred before crediting the recipient. In this case, the total amount of the payment transaction and the fees are separated in the information given to the recipient.
If costs other than those referred to in paragraph 2 are deducted from the amount transferred, the payer's payment service provider shall ensure that the recipient receives the total amount of the payment transaction initiated by the payer. In the event that the payment transaction is initiated by or via the recipient, its payment service provider ensures that the recipient receives the total amount of the payment transaction.
Section 2. - Delivery time and date value
Art. VII. 43. § 1er. This section applies:
1° to payment transactions in euros;
2° to payment transactions resulting in a single conversion between the euro and the official currency of a Member State not falling within the euro area, provided that the required conversion is made in the Member State not falling within the euro area and that, in case of cross-border payment transactions, the cross-border transfer is made in euros.
§ 2. This section applies to other payment transactions, unless the payment service user and the payment service provider agree otherwise, with the exception of section VII. 47, to which the parties cannot derogate.
When the payment service user and his payment service provider agree to a longer period than those set out in Article VII. 44 for intra-community payment transactions within the EEA, this period may not exceed four working days from the time of receipt as defined in Article VII. 39.
Art. VII. 44. § 1er. The payer's payment service provider shall ensure that, after the time of receipt as defined in section VII. 39, the amount of the payment transaction shall be credited to the account of the recipient's payment service provider by the end of the next business day. This period may be extended by an additional working day in the case of payment transactions initiated on paper.
For the execution of national payment transactions initiated electronically between two payment accounts where the payer and the recipient's payment service provider is the same person, the period referred to in the preceding paragraph is reduced to the end of the same business day in which the time of receipt as defined in Article VII takes place. 39.
§ 2. The recipient's payment service provider assigns a value date to the payment transaction and makes the amount available to the recipient's payment account after the payment service provider has received the funds in accordance with Article VII. 47.
§ 3. The recipient's payment service provider shall forward a payment order initiated by or via the recipient to the payer's payment service provider within the time agreed between the recipient and the recipient's payment service provider, in order to allow the payment, with respect to the payment, on the agreed due date.
Art. VII. 45. Where the recipient is not a recipient of a payment account with the payment service provider, the funds are made available to the recipient by the payment service provider who receives the funds to the recipient within the time specified in Article VII. 44.
Art. VII. 46. When a consumer pays cash on a payment account to this payment service provider, in the currency of this payment account, the payment service provider shall ensure that the amount paid is made available and receives a value date immediately after the time of receipt of these funds.
When the payment service user is not a consumer, the amount is made available and receives a value date no later than the working day following the receipt of funds.
Art. VII. 47. § 1er. For the recipient's payment account, the credit value date is not later than the business day in which the amount of the payment transaction is credited to the recipient's payment service provider's account.
The recipient's payment service provider shall ensure that the amount of the payment transaction is made available to the recipient immediately after that amount has been credited to the recipient's payment service provider's account.
§ 2. For the payer's payment account, the debit value date is not earlier when the amount of the payment transaction is debited from this payment account.
Section 3. - Liability in the event of a single error, non-performance or incorrect execution
Art. VII. 48. § 1er. A payment order executed in accordance with the single identifier shall be deemed to be duly executed in respect of the beneficiary indicated by the single identifier.
However, the payment service provider checks, if possible technically and without manual intervention, if the unique identifier is consistent. If not, it refuses to execute the payment order and informs the payment services user who gave the identifier.
§ 2. If the single identifier provided by the payment service user is inaccurate, the payment service provider is not responsible under sections VII. 49 and VII. 50 of the incompetent or improper execution of the payment transaction, provided that it has carried out the control referred to in § 1er.
However, the payer's payment service provider is making every effort, to the extent reasonably practicable, to recover funds in the payment transaction.
If the framework contract provides, the payment service provider may charge recovery fees to the payment service user.
§ 3. If the payment service user provides information in addition to those defined in Articles VII. 81, § 1er, 1°, or VII. 13, 2°, b), the payment service provider is only responsible for the execution of the payment transaction in accordance with the unique identifier provided by the payment service user.
Art. VII. 49. § 1er. When a payment order is initiated by the payer, the payment service provider is, without prejudice to the application of sections VII. 33, VII. 48, paragraphs 2 and 3, and VII. 53, responsible for the proper execution of the payment transaction in respect of the payer.
Derogation from paragraph 1er, the recipient's payment service provider is responsible for the successful execution of the payment transaction in respect of the beneficiary in the event that the payer's payment service provider can demonstrate to the payer and, where applicable, to the recipient's payment service provider that the recipient's payment service provider has received the amount of the payment transaction in accordance with Article VII. 44.
§ 2. Where the payer's payment service provider is responsible under § 1er, it shall promptly return to the payer the amount of the unexecuted or improperly executed payment transaction and, if necessary, restore the payment account debited in the situation that would have prevailed if the wrong payment transaction had not taken place.
Where the recipient's payment service provider is responsible under § 1er, it shall immediately make the amount of the payment transaction available to the recipient and, if necessary, credit the payment account of the beneficiary of the corresponding amount.
§ 3. In the case of a non-executed or misexecuted payment transaction and where the payment order is initiated by the payer, the payment service provider shall, immediately upon request of the payer, make every liability determined under this section to trace the payment transaction and notify the result of his search to the payer.
Art. VII. 50. § 1er. Where a payment order is initiated by or via the beneficiary, the payment service provider is, without prejudice to sections VII. 33, VII. 48, paragraphs 2 and 3, and VII. 53, responsible for the recipient of the correct transmission of the order of payment to the payer's payment service provider in accordance with section VII. 44, § 3.
When the recipient's payment service provider is responsible under the preceding paragraph, the recipient immediately forwards the payment order to the payer's payment service provider.
§ 2. The recipient's payment service provider is, without prejudice to the application of sections VII. 33, VII. 48, paragraphs 2 and 3, and VII. 53, responsible to the recipient, for the processing of the payment transaction in accordance with its obligations under section VII. 47.
When the recipient's payment service provider is responsible under the preceding paragraph, it ensures that the amount of the payment transaction is made available to the recipient immediately after the amount has been credited to the recipient's payment service provider's account.
§ 3. In the case of an unexecuted or improperly executed payment operation for which the recipient's payment service provider is not liable under §§ 1er and 2 of this section, the payer's payment service provider is responsible for the payer.
The payer's payment service provider whose liability under the preceding paragraph is incurred shall return to the payer, if necessary and without delay, the amount of the unexecuted or misexecuted payment transaction and shall promptly restore the debited payment account in the situation that would have prevailed if the wrong payment transaction had not taken place.
§ 4. In the case of a non-executed or misexecuted payment transaction and where the payment order is initiated by or via the beneficiary, the payment service provider shall immediately, upon request, make every liability determined under this section, seek to trace the payment transaction and notify the beneficiary of the result of its search.
Art. VII. 51. Payment service providers are liable, in respect of their respective payment services users, for the fees they are responsible for and for the interest incurred by the payment service user as a result of the non-performance or improper execution of the payment transaction.
Similarly, the user of payment services is entitled to additional compensation for other possible financial consequences than those provided for in this section.
Art. VII. 52. Where liability of a payment service provider under sections VII. 49 to VII. 50 is attributable to another payment service provider or an intermediary, the payment or intermediary service provider shall compensate the first payment service provider for any loss suffered or any amount paid under Articles VII. 49 to VII. 50.
Additional financial compensation may be determined in accordance with the agreements between payment service providers and/or intermediaries and in accordance with the law applicable to the agreement they have entered into.
Art. VII. 53. The liability referred to in sections VII.27 to VII.52 does not apply in the event of force majeure or where the payment service provider is bound by other legal obligations under national legislation or by the European Union.
CHAPTER 7. - Provisions common to all payment transactions referred to in Chapters 5 and 6
Art. VII. 54. When the payment service user is not a consumer, parties may decide that items VII. 27, § 3, VII. 28, VII. 34, VII. 36 to VII. 38, VII. 41, VII. 49 to VII. 51, and VII. 55, § 1er, do not apply, in whole or in part. The parties may also agree on a time limit distinct from that set out in Article VII. 33.
Art. VII. 55. § 1er. The payment service provider may not, under Articles VII. 27 to VII. 53, and unless otherwise provided, charge fees to the user of payment services for the fulfilment of their obligations.
By derogation from the preceding paragraphs, the payment service provider may charge fees in the cases referred to in Article VII. 40, § 1er, VII. 41, 5, or VII. 48, § 2, provided that these costs are agreed in the framework contract between the payment service user and the payment service provider and to the extent that they are reasonable and in relation to the actual costs incurred by the payment service provider.
§ 2. When a payment transaction does not involve a monetary conversion, the payer and the recipient pay, each for their part, the fees paid by their respective payment service provider.
§ 3. The payment service provider does not prevent the recipient from applying fees or proposing a reduction to the payer for the use of a particular payment instrument.
This allowance may not exceed the actual costs for the beneficiary following the use of this payment instrument.
By derogation from paragraph 1, the King may, taking into account the need to encourage competition and promote the use of effective means of payment, by order deliberately in the Council of Ministers, prohibit or limit the beneficiary's right to claim compensation for payment transactions using a payment instrument.
The King may also, by order deliberately in the Council of Ministers, set a maxima for allowances, regardless of their qualification or form, claimed by the payment service provider to the recipient for the provision of equipment to facilitate the provision of payment services using a payment instrument.
Art. VII. 56. § 1er. In the case of payment instruments that, in accordance with the framework contract, relate exclusively to payment transactions not exceeding 30 euros per unit or that have a expenditure limit of 150 euros, or that store funds that do not exceed at any time 150 euros, payment service providers may agree with their payment services users that:
1° Articles VII. 30, § 1er, 2°, VII. 31, 3° and 4°, and VII. 36, § 2, does not apply if the payment instrument does not permit the blocking or prevention of subsequent use of the payment instrument;
2° Articles VII. 34, VII. 35, and VII. 36, § 1erParagraphs 1er and 2, do not apply if the payment instrument is used anonymously or if the payment service provider is not in a position, for other reasons, inherent in the payment instrument, to demonstrate that a payment transaction has been authorized;
3° by derogation from Article VII. 40, § 1er, the payment service provider is not obliged to notify the payment service user of the refusal of the payment order if the non-performance is within the context;
4° by derogation from Article VII. 41 the payer may not revoke the payment order after transmitting the payment order or giving his consent to the execution of the payment transaction to the beneficiary;
5° by derogation from articles VII. 44 and VII. 45, other deadlines apply.
§ 2. For national payment transactions, the King may, by order deliberately in the Council of Ministers, reduce or double the amounts referred to in § 1erParagraph 1er, and for prepaid payment instruments increase them up to 500 euros.
§ 3. Articles VII. 35 and VII. 36 also applies to electronic currency, unless the payer's payment service provider does not have the ability to block the payment account or block the payment instrument and the instrument meets the terms and conditions of use referred to in the introductory provision of § 1er.
CHAPTER 8. - Basic banking service
Art. VII. 57. § 1er. The basic banking service is a payment service that includes the services referred to in I. 9, 1°, (a) to (c), with the exception of any deferred payment transaction using a payment instrument, and the registration of cheques.
The possibility of placing or removing cash on a payment account is only valid in/for Belgium.
The King may modify and complete the list of these services.
§ 2. Every credit institution must offer the basic banking service. Every consumer has the right to basic banking.
Access to basic banking cannot depend on the conclusion of an incidental service contract.
§ 3. The maximum package for basic banking cannot exceed the amount of 12 euros per year.
The King determines the number of operations included in this package. It can adapt this fare.
§ 4. In the event of an excess of the number of authorized transactions, the credit institution may charge these transactions at the usual price.
The King can set a maximum price per operation.
§ 5. The credit institution may not, either expressly or tacitly, propose or grant a credit opening associated with a basic banking service.
A payment transaction within the framework of a basic banking service, cannot be executed if it generates a debt balance.
Art. VII. 58. A consumer who requests a basic banking service cannot already benefit from a basic banking service, another payment account or an account whose cumulative annual average credit balance exceeds 6,000 euros.
For the determination of this maximum amount, the guarantees referred to in Article 10 of the Civil Code, Book III, Part VIII, Chapter II, Section 2, shall not be taken into consideration.
The King can change that amount.
Art. VII. 59. § 1er. The application for the opening of a basic banking service must be made in writing by means of a form made available by the credit institution.
The application form contains a statement by which the consumer confirms that it does not yet have a basic banking service or a payment account.
The King may determine the references to be included in the application form.
§ 2. The credit institution may refuse an application or terminate the basic banking service in the event of fraud, abuse of trust, fraudulent bankruptcy, false writing, money laundering or financing of terrorism by the consumer, and non-compliance with Article VII. 58, paragraph 1er 3.
The determination of eligibility for a claim for a collective payment of debts cannot be a ground to refuse a payment account or terminate it.
The refusal or termination decision shall be affixed to the application form, including the reasons and justification for the decision. In this form, the complaint and extrajudicial appeal procedures that are open to the consumer are explicitly mentioned, as well as the full name, address and telephone number of the competent body referred to in Article VII. 59, § 3, paragraph 1er, to contest a refusal of opening or termination of this basic banking service. The consumer receives a copy of the application form free of charge in case of refusal or termination.
This information is not required when it endangers objectively justified security measures or where it is prohibited under other applicable legislation.
§ 3. Without prejudice to the application of § 2, the last paragraph, the credit institution shall forthwith, in writing and free of charge, communicate its decision of refusal or termination to the competent body to deal with a complaint and extrajudicial appeal and, where applicable, the debt mediator.
The creditor may cancel the credit institution's decision or charge the basic banking service by another credit institution, subject to the conditions it determines.
§ 4. The credit institution shall transmit annually to the competent body referred to in § 3 information on the number of open accounts, the number of refusals and cancellations and their motivation. Information on the previous calendar year is transmitted by 31 January of the following year.
CHAPTER 9. - The issuance and reimbursement of electronic currency and the prohibition of interest
Art. VII. 60. Electronic currency emitters emit electronic currency at the nominal value against remittance.
Art. VII. 61. § 1er. The electronic currency issuers shall reimburse, at the request of the electronic currency holder, at any time and at the nominal value, the monetary value of the electronic currency held.
§ 2. The contract between the electronic currency issuer and the electronic currency holder clearly and visibly sets out the terms and conditions of reimbursement, including any related costs, and the electronic currency holder is informed of these conditions before it is bound by a contract or offer.
§ 3. Reimbursement may only take place if the contract provides for it in accordance with § 2 and only in one of the following cases:
1° the refund is requested before the contract expires;
2° the contract specifies an expiry date and the electronic currency holder terminated the contract before that date, or
3° the refund is requested more than one year after the expiration date of the contract.
The amount of costs must be proportioned and in relation to the actual costs incurred by the electronic currency issuer.
The King may determine the criteria for establishing actual costs incurred by the electronic currency issuer.
§ 4. When the refund is requested prior to the expiration of the contract, the electronic currency holder may claim the refund of the electronic currency in whole or in part.
§ 5. When the refund is requested by the electronic currency holder on the expiration date of the contract or within one year after the contract:
1° the total monetary value of the electronic currency held shall be refunded or
2° where the establishment of electronic currency carries out one or more activities in accordance with Article 77, § 1er, the Act of 21 December 2009 and that the proportion of funds to be used in electronic currency is not known in advance, all funds to be reimbursed by the electronic currency holder are refunded.
§ 6. Notwithstanding §§ 3 to 5, the right to reimbursement of persons, other than consumers, who accept electronic currency is subject to the contractual agreement between electronic currency issuers and such persons.
Art. VII. 62. Electronic currency issuers may not award interest or any other benefit related to the period in which the electronic currency holder holds electronic currency.
CHAPTER 10. - Data protection
Art. VII. 63. Without prejudice to the application of the Privacy Protection Act of 8 December 1992 in respect of personal data processing, the processing of personal data by payment systems and payment service providers is permitted where necessary to ensure the prevention, research and detection of payments fraud.
The King may, by order deliberately in the Council of Ministers, after the advice of the Commission on the Protection of Privacy, determine more precisely the modalities of treatment for purposes as defined and legitimized in this book.
PART 4. - Credit contracts
CHAPTER 1er. - Consumer credit
Section 1er- Promotion of credit
Sub-section 1re- Advertising
Art. VII. 64. § 1er. Any advertisement that indicates a rate of interest or figures related to the cost of credit for the consumer makes clear, concise, apparent and, where appropriate, audible reference to the following basic information:
1° the debtor, fixed and/or variable rate, accompanied by information relating to all costs included in the total cost of credit for the consumer;
2° the amount of the credit;
3° the overall effective annual rate;
4° the duration of the credit contract;
5° if this is a credit granted in the form of a payment period for a particular property or service, the cash price and the amount of any deposit, and
6° where applicable, the total amount due by the consumer and the amount of instalments.
The King shall determine for any advertisement, regardless of the medium used, the size of the characters with respect to information relating to the nature of the transaction, its duration, the fixed or variable character of the debtor rate, the amount of refunds and the overall annual effective rate and, if this is a promotional rate, the period during which that rate applies.
The amount of the credit is based on the amount of the average credit that according to the type of credit contract for which an advertisement is made, is representative of all the lender's offers or the credit intermediary. If several types of credit contracts are offered simultaneously, a separate representative example must be provided for each type of credit contract.
§ 2. Any consumer credit advertising mentions the following message:
"Warning, borrowing money also costs money."
Whatever the medium used, the King determines, if any, the size of the characters of this message.
§ 3. If the conclusion of a contract for an incidental service related to the credit contract, including insurance, is obligatory to obtain the credit or under terms and conditions of business, and its cost cannot be determined beforehand, the obligation to contract this service is also clearly, concise, visible and audible, as well as the overall effective annual rate.
Art. VII. 65. § 1er. Is prohibited any advertisement for a credit contract that specifically focuses on:
1° the consumer's incentive, unable to face his debts, to use credit;
2° the development of the ease or speed with which the credit can be obtained;
3° the incentive for the consolidation or centralization of current credits or that specifies that current credit contracts have little or no influence on the appraisal of a credit application.
§ 2. Is also prohibited any advertisement for a credit contract that:
1° refers to an approval, registration or registration as a lender or intermediate credit;
2° with reference to the maximum effective annual rate or the legality of the applied rates, gives the impression that these rates are the only ones that can be applied.
Any reference to the legally authorized maximum overall effective annual rate and to the legally authorized maximum debtor rate shall be unequivocally, legible and apparent or, where appropriate, audible and shall specify in a precise manner the maximum legally authorized overall annual effective annual rate;
3° indicates that a credit contract can be concluded without information to assess the financial situation of the consumer;
4° mentions another identity, address or quality as communicated by the advertiser as part of its approval, registration or registration as a lender or intermediate credit;
5° to indicate a type of credit, uses only a different name than that used in this book;
6° mentions advantageous rates without specifying the particular or restrictive conditions to which the benefit of these rates is subject;
7° indicates with words, signs or symbols that the amount of the credit is made available in cash or cash;
8° includes the mention "free credit" or an equivalent mention, other than the indication of the overall effective annual rate;
9° promotes an act that must be regarded as a breach or violation of this book or its decrees.
Art. VII. 66. Where the advertisement relates both to consumer credit and to mortgage credit or to credit contracts that fall outside the scope of this book, and that the advertisement message does not indicate in a clear, visible and, where applicable audible manner, what information relates to which credit contract, then the provisions of this subsection apply to all advertising.
Sub-section 2. - Starting
Art. VII. 67. Demarcation for credit contracts is prohibited. Is considered starting:
1° the visit, lender or credit intermediary, the domicile, residence or place of work of the consumer, as well as the domicile or residence of another consumer, on the occasion of which an offer of credit is formulated or a request for credit or a contract of credit is subject to the signature of the consumer, unless the lender or credit intermediary has made an express and prior request to the consumer. Proof of this request can only be made by a sustainable support distinct from the offer of credit, the application form or the credit contract and prior to the visit;
2° the consumer's approach by the lender or credit intermediary to offer him a visit;
3° sending to the consumer, by any means of communication, an offer of credit, a means of credit or an instrument of payment unless the lender or credit intermediary has forwarded it to the express and prior request of the consumer unless the consignment has been made to meet the lender's obligations under the provisions set out in Chapter 2 of Book VI title 3. The proof of this request can only be made by a sustainable support, distinct from the offer of credit or the contract of credit and prior to the sending of the payment instrument, credit or offer;
4° the organisation of points of sale or the approach of the consumer to offer him credit to the places referred to in Article 4, § 1erparagraphs 1 and 2, of the Act of 25 June 1993 on the Exercise and Organization of Ambient and Foraine Activities;
5° the approach of the consumer on the occasion of an excursion organized by or on behalf of a seller or service provider or by a lender or credit intermediary, with the aim of inducing the consumer to acquire credit goods or services, unless this purpose has been clearly and previously announced to the consumer as the main purpose of the planned excursion. The proof of this announcement lies with the tour organizer.
Subsection 3. - Promotional offers
Art. VII. 68. The seller of goods or services is prohibited from linking a decrease in prices to a credit levy, to the use of a credit opening or a card or payment instrument.
Section 2. - Training of the credit contract
Sub-section 1re. - Information to be requested by the lender and credit intermediary
Art. VII. 69. § 1er. As part of the solvency assessment, the lender and the credit intermediary are required to apply to the consumer seeking a credit contract, as well as, where appropriate, to the person who constitutes a personal security, the exact and complete information that the lender considers necessary to assess their financial situation and their repayment faculties. The consumer and the person who constitutes a security right are required to respond in an accurate and complete manner.
In no case may the information sought be related to race, ethnic origin, sexual life, health, opinions or political, philosophical or religious activities or union or mutualist affiliation.
§ 2. The lender or, where applicable, the credit intermediary shall submit a credit application form, or, where applicable, a consumer and the person who constitutes a personal security, respectively, in the form of a questionnaire describing all information requested by the lender and/or the credit intermediary in accordance with § 1erParagraph 1er. In order to be able to demonstrate the obligations under this section, the lender is required to retain this form as long as the credit was not refunded. The information provided by the consumer or the person who holds a personal security may only be communicated to and processed by the persons referred to in Article VII. 119, § 1er and, if applicable, through credit.
The questionnaire refers at least to the purpose of credit, income, dependants, current financial commitments including, inter alia, the number and amounts of current credits. The King may, by a deliberate decree in the Council of Ministers, complete this list in case the amount of the credit exceeds 3,000 euros.
The questionnaire mentions the files that, in accordance with Article VII, 79, will be consulted.
Without prejudice to § 1erParagraph 1er does not apply if the amount of the credit does not exceed 500 euros.
Sub-section 2. - Pre-contractual information.
Art. VII. 70. § 1er. In due course, before the consumer is bound by a contract or offer of credit, the lender and, if applicable, the credit intermediary shall provide the lender, on the basis of the terms and conditions of the credit proposed by the lender and, possibly, preferences expressed by the consumer and the information provided by the lender, a personalized information necessary to draw a comparison of the various offers in order to make a decision on the conclusion of a contract. This information is provided on a sustainable basis, using the "standardized European consumer credit information (SECCI)" form in Appendix 1re of this book. The lender and, where appropriate, the credit or designated agent are presumed to have complied with the information requirements set out in this subsection and those of section VI. 55, § 1er, the Economic Law Code, if it provided the SECCI.
This information includes:
1° the type of credit;
2° the identity, including the business number, the lender and, where applicable, the credit intermediary concerned and their geographic address to be taken into account in relation to the consumer;
3° the amount of the credit and the conditions of the credit;
4° the duration of the credit contract;
5° in case of credit granted in the form of a payment period for a particular property or service and related credit contracts, that property or service and its cash price;
6° the debtor rate, the conditions applicable to this rate and, as far as available, any index or reference rate that relates to the initial debtor rate as well as the periods, conditions and procedures for the adjustment of the rate. If different debtor rates apply according to the circumstances, the above information concerns all applicable debtor rates;
7° the overall effective annual rate and the total amount due by the consumer, using a representative example that mentions all the assumptions used to calculate this rate. If the consumer has indicated to the lender one or more of the credit that the lender prefers, such as the duration of the credit contract and the amount of the credit, the lender must consider these elements. If a credit contract provides the consumer with different possibilities for credit levies, with different costs or debt rates, and the lender applies the hypothesis to be determined by the King and reflecting this situation, the King states that the existence of other methods of levies for this type of credit may result in the application of higher overall effective annual rates;
8° the amount, number and periodicity of payments to be made by the consumer and, where applicable, the order in which the payments will be assigned to the different balances due to different debt rates for reimbursement;
9° where applicable, the costs of holding one or more accounts to record both payment transactions and credit levies, unless the opening of the account is optional, the costs of using a payment instrument allowing both payment transactions and levies as well as any other costs arising out of the credit contract and the conditions under which these fees may be amended in accordance with Article VII. 86;
10° where applicable, the existence of notary fees due by the consumer to the conclusion of the credit contract;
11° the obligation to contract an incidental service related to the credit contract, including insurance, where the conclusion of a contract with respect to that service is mandatory for obtaining the credit or in accordance with the terms and conditions of business;
12° the rate of interest applicable in the event of a delay in payment and the terms and conditions of adjustment of the payment and, where applicable, the costs of non-performance of the credit contract;
13° a warning of the consequences of the unpaid;
14° where applicable, the required security rights;
15° the existence or absence of a right of withdrawal;
16° the right to make an advance refund and, where applicable, the right of the lender to an allowance and the method of calculating it in accordance with Article VII. 97;
17° the consumer's right to be, in accordance with Article VII. 79, immediately and without charge informed of the outcome of the consultation of a database for the purpose of assessing its solvency;
18° the consumer's right to receive, on request and without charge, a copy of the draft credit contract.
This provision does not apply if, at the time of application, the lender is not willing to enter into the credit contract with the consumer;
19° where applicable, the time limit for which the lender is bound by pre-contractual information.
All additional information that the lender wishes to give to the consumer is provided in a separate document that can be annexed to the SECCI,
§2.In case of communication by voice telephony referred to in Article VI. 56, of the Economic Law Code, the description of the main characteristics of the financial service referred to in Article VI. 56, paragraph 2 (b), shall include at least, with respect to consumer credit, the information referred to in § 1er, paragraphs 2, 3° to 6° and 8°, the overall effective annual rate by means of a representative example and the total amount due by the consumer.
§ 3. When the contract has been concluded, at the consumer's request, using a remote means of communication that does not provide the required information in accordance with § 1er, in particular in the case referred to in § 2, the lender shall provide the consumer with all pre-contractual information through the SECCI form immediately after the conclusion of the credit contract.
§ 4. The consumer receives, on request and without charge, in addition to the SECCI, a copy of the draft credit contract. This provision does not apply if, at the time of application, the lender is not willing to enter into the credit contract with the consumer.
Art. VII. 71. § 1er. This section applies:
1° to repayable discoveries at the lender's request or within a maximum period of three months;
2° to uncovered facilities that must be repaid within one month for § 3;
3° to credit contracts with an investment company referred to in Article VII. 3, § 3, 5°;
4° to credit contracts providing for payment times referred to in Article VII. 3, § 3, 6°.
§ 2. By derogation from Article VII. 70, § 1er, in good time and before the consumer is bound by a contract or offer of credit, the lender and, where applicable, the credit intermediary gives him, on the basis of the terms and conditions of the credit proposed by the lender and, possibly, preferences expressed by the consumer and the information provided by the lender, the information necessary to compare the various offers to make a decision in the knowledge of the conclusion of a credit contract. This information is provided on a sustainable basis, using the SECCI form in Appendix 2 to this book. The lender is deemed to have complied with the information requirements of this subsection and section VI. 55, if it provided "standard European consumer credit information".
This information includes:
1° the type of credit;
2° the identity, including the business number, the lender and, where applicable, the credit intermediary concerned and their geographic address to be taken into account in relation to the consumer;
3° the amount of the credit;
4° the duration of the credit contract;
5° the debtor rate, the terms and conditions applicable to that rate, any index or reference rate that relates to the initial debt rate, the applicable fees upon the conclusion of the credit contract and, where applicable, the conditions under which such costs may be amended;
6° the overall effective annual rate, using a representative example that mentions all assumptions used to calculate this rate;
7° the terms and conditions under which the credit contract may be terminated;
8° where applicable, an indication that the consumer may be requested at any time to reimburse the total amount of the credit;
9° the rate of interest applicable in the event of a delay in payment and the terms and conditions of adjustment of the payment and, where applicable, the costs of non-performance of the credit contract;
10° the consumer's right to be, in accordance with Article VII. 79, immediately and without charge informed of the outcome of the consultation of a database for the purpose of assessing its solvency;
11° the information relating to the applicable costs upon the conclusion of the credit contract and the conditions under which these costs may be amended in accordance with Article VII. 86;
12° where applicable, the time limit for which the lender is bound by pre-contractual information.
§ 3. By derogation from Article VII. 70, § 2, in the event of communication by voice telephony referred to in Article VI. 56, and where the consumer requests that the ease of discovery be immediately available, the description of the main characteristics of the financial service referred to in Article VI. 56, paragraph 2, (b), shall contain at least the information provided in § 2, paragraph 2, paragraph 2, 3, 5° 6 and 80.
§ 4. On request, the consumer receives, without cost, in addition to SECCI, a copy of the draft credit contract. This provision does not apply if, at the time of application, the lender is not willing to enter into the credit contract with the consumer.
§ 5. When at the consumer's request, the contract was entered into using a remote means of communication that does not provide the required information in accordance with § 2 including in the cases referred to in § 3, the lender, immediately after the conclusion of the credit contract, respects the obligation of the lender under paragraph 2 by providing the consumer with the contractual information in accordance with Article VII. 78, to the extent that it applies.
Art. VII. 72. Articles VII. 70, VII. 71, VII. 74 and VII. 75, does not apply to suppliers of goods or service providers acting as collateral. This provision does not affect the lender's obligation to ensure that the consumer receives the pre-contractual information referred to in the said articles effectively.
Do not exercise an incidental activity, the credit intermediary that proposes both a credit contract and a payment instrument that may be used outside of the establishment or a credit contract that is not intended, in whole or in part, to the purchase of goods or services offered by it.
Subsection 3. - The duty of particular information of the credit intermediary
Art. VII. 73. Any credit intermediary must inform the consumer of its credit intermediary status, as well as the nature and extent of its powers, both in advertising and in customer documents. This information includes the quality of credit broker or related agent.
The related agent indicates the lender identification elements in all client documents.
Sub-section 4. - Adequate explanations
Art. VII. 74. The lenders and, where appropriate, the credit intermediaries provide the consumer with adequate explanations by which the consumer will be able to determine whether the proposed credit contract is appropriate to its needs and financial situation, if any, by explaining the pre-contractual information to be provided in accordance with Article VII.70, § 1er, the essential characteristics of the products offered and the special effects they may have on the consumer, including the consequences of a consumer default.
If a credit opening is offered at a point of sale outside the lender's establishment or remotely, an appropriate explanation is provided by the lender or, where applicable, by credit for the advantages and disadvantages of that type of credit in relation to sales or temperament loans, if these types of credit are offered by the lender or credit intermediary. This explanation includes the depreciation of capital, the imputation of interest, the aggregate effective annual rates maxima, the period of zeroing and the requirement of the remaining balance due in the event of a unilateral termination referred to in Article VII. 98, § 1erParagraph 2.
Subsection 5. - Council obligations
Art. VII. 75. The lender and the credit intermediary are required to seek, within the framework of the credit contracts they usually offer or for which they usually intervene, the type and amount of the credit best suited, taking into account the financial situation of the consumer at the time of the contract and the purpose of the credit.
Sub-section 6. - Duty to investigate.
Art. VII. 76. The lender may enter into a credit or security contract only after verification of the identification data on the basis and as the case may be:
- the identity card referred to in section 6 of the Act of 19 July 1991 relating to registers of the population and identity cards and amending the Act of 8 August 1983 organizing a National Register of Natural Persons;
- the residence permit issued at the time of registration in the waiting register referred to in section 1er§ 1erParagraph 1er2° of the Act of 19 July 1991 referred to above;
- the identity card, passport or travel document taking place, issued to a foreigner who does not reside in the Kingdom, by the State where he resides or is a national.
Art. VII. 77. § 1er. The lender shall, prior to the conclusion of the credit contract, evaluate the solvency of the consumer and verify that the consumer will be in a position to comply with his repayment obligations. It also assesses the solvency of individuals who have constituted a personal security.
To this end, the lender is also required to consult the Central, with the exception of overtaking. The King sets out the terms of this consultation.
The King determines how the preteror provides proof of the Central's consultation and the time limit for which the evidence must be retained.
For the application of paragraphs 1er to 3, each change in the amount of the credit implies the conclusion of a new credit contract.
In addition, for indeterminate credit contracts, the lender is required to re-examine each year, no later than the first working day that follows the anniversary date of the conclusion of the credit contract, on the basis of a new Central consultation, consumer solvency in accordance with paragraphs 1er 3. This provision is not applicable where, for these credit contracts, a time limit equal to or less than one year is applied.
§ 2. The lender may only enter into a credit contract if, in the light of the information available to it or should be disposed of, the lender must reasonably consider that the consumer will be able to meet the obligations arising from the contract.
When, in the consumer's head, an unpaid (s) is (are) registered in the Central with a total unpaid amount of more than 1,000 euros as part of a consumer credit that has not been refunded, a lender cannot enter into a new credit contract. In other cases of non-refunded impay(s), a lender can only enter into a new credit contract with additional motivation in the credit file.
Sub-section 7. - From the conclusion of the credit contract.
Art. VII. 78. § 1er. The credit contract is concluded by the handwritten signature or electronic signature referred to in Article XII. 25, § 4, of all contracting parties and shall be established on a durable medium that includes all the contractual conditions and references referred to in this article. All contracting parties with a separate interest and credit intermediary shall receive a copy of the credit contract.
Except for the opening of credit, no fixed-term credit contract with capital depreciation is perfect as long as a depreciation table, referred to in § 3, 4 of this Article, has not been handed over to each contracting party with a separate interest.
For a credit opening, the consumer precedes his signature of the mention of the amount of the credit: "Lu and approved for... euros on credit." For all other credit contracts, the consumer precedes his signature of the mention of the total amount due by the consumer: "Lu and approved for... euros to be refunded." In both cases, the consumer also mentions the date and precise address of the signature of the contract.
§ 2. The credit contract clearly and concisely mentions:
1° the type of credit;
2° the name, first name, place and date of birth as well as the domicile of the consumer and, if applicable, the persons who constitute a surest;
3° the identity of the lender, including its business number, its geographic address to be taken into account for relations with the consumer and the contact details of the competent supervisory administration with the SPF Economy;
4° where applicable, the identity of the credit intermediary, including its business number, its geographic address to be taken into account in relation to the consumer and the contact details of the competent supervisory administration with the SPF Economy;
5° the duration of the credit contract;
6° the amount of the credit and the conditions of the credit;
7° the debtor rate, the conditions applicable to this rate and, as far as available, any index or reference rate that is related to the initial debt rate, as well as the periods, conditions and procedures for the adjustment of the rate and, if different debtor rates apply according to the circumstances, the information referred to above shall cover all applicable rates;
8° the overall effective annual rate and the total amount due by the consumer, calculated at the time of the conclusion of the credit contract. All assumptions used to calculate this rate are mentioned;
9° the procedure to be followed to terminate the credit contract;
10° the clause: "This contract is the subject of a registration in the Central Credits to Individuals in accordance with Article VII. 148 of the Economic Law Code. ";
11° the finalities of treatment in the Central;
12° the name of the Central;
13° the existence of a right of access, rectification and deletion of data as well as the retention times of data.
§ 3. In addition to the information referred to in § 2, the credit contract, with the exception of the credit contracts referred to in § 4, mentions clearly and concisely:
1° if credit can be disposed of by means of a payment instrument, the rules applicable under the law relating to payment services in the event of loss or theft or misuse of the card or title, as well as, where applicable, the maximum amount for which the consumer assumes the risk resulting from the misuse of a third party;
2° if the credit is granted in the form of a payment period for a particular property or service, or in the case of related credit contracts, that product or service and its cash price;
3° the amount, number and periodicity of the payments to be made by the consumer, including a possible deposit, and, where applicable, the order in which the payments will be allocated to the different balances due at different debt rates for reimbursement;
4° in the event of a depreciation of the capital of a fixed-term credit contract, the consumer's right to receive, at his or her request and without charge, at any time throughout the contract, a statement in the form of a damping table. This indicates:
(a) payments due and the periods and conditions of payment of such amounts;
(b) the breakdown of each refund between capital amortization, interest calculated on the basis of the debt rate and, where applicable, additional costs;
(c) if, under the credit contract, the debtor rate is not fixed, a clear and concise statement that the data mentioned in the table will only be valid until the next change in the debtor rate or additional costs in accordance with the credit contract;
5° if there is a payment of costs and interests without capital amortization, a statement of periods and conditions of payment of debtor interest and recurring and non-recurring costs;
6° where applicable, the costs of holding one or more accounts to record both the payment transactions and the debits, unless the opening of an account is optional, the costs of using a means of payment allowing both payment transactions and debits, as well as any other costs arising from the credit contract and the conditions under which such fees may be amended in accordance with Article VII. 86;
7° the late interest rate applicable in the event of a delay in payment at the time of the conclusion of the credit contract and the terms and conditions for the adjustment of that rate, as well as, where applicable, the costs of non-performance;
8° a warning of the consequences of missing payments;
9° where applicable, the existence of notarial fees;
10° where applicable, the required security and insurance;
11° the existence or absence of a right of withdrawal, the period during which this right may be exercised and the other conditions for exercising it, including information on the obligation of the consumer to repay the capital taken and interest in accordance with Article VII. 83, and the amount of the daily interest;
12° of information concerning the rights resulting from Article VII. 92 and their conditions of exercise;
13° the right to early reimbursement, the procedure to be followed and, where appropriate, information on the right of the lender to compensation and the method of determining the lender;
14° avenues of complaint and extrajudicial remedies open to the consumer, in accordance with Book XVI, including the physical address of the proceeding in which the consumer can address his claims, including the contact details of the Directorate General Economic Inspection with the SPF Economy;
15° where applicable, other contractual terms and conditions.
§ 4. In addition to the information referred to in § 2, the reimbursable overdraft facilities at the lender's request or within a maximum of three months mention clearly and concisely:
1° an indication that it may be requested at any time to the consumer to refund the amount of the credit;
2° the information relating to the applicable costs upon the conclusion of the credit contract and the conditions under which these costs may be amended in accordance with Article VII. 86.
§ 5. Derogation from paragraph 1er, where the credit contract is entered into by using a voice telephone communication at the consumer's request, a copy of the credit contract signed by the lender is promptly sent to the consumer.
§ 6. The causes of pre-term or resolution of the credit contract must be repeated in the contract by a separate clause.
Subsection 8. - Denial of credit
Art. VII. 79. In the event of a refusal to issue a credit, the lender shall communicate to the consumer without delay and without charge, the outcome of the consultation and the identity and address of the person responsible for the processing of the files consulted by the lender, including, where applicable, the identity and address of the credit insurer consulted, and to which the consumer may address in accordance with Article VII.121.
The communication referred to in paragraph 1er is not required where section 12 of the Act of 11 January 1993 on the prevention of the use of the financial system for the purposes of money laundering and the financing of terrorism or other relevant legislation affecting public order or public security prohibits it.
If the credit is refused, no compensation, of any kind, may not be claimed to the consumer except for the consultation costs of the Central Bank paid by the lender.
Subsection 9. - Special provisions on leasing
Art. VII. 80. The duration of the lease is determined. The transfer of ownership or the lifting of the purchase option is the term of the credit transaction.
The lender warns the consumer by registered letter to the position that he has the ability to lift the purchase option one month before the last agreed date for that purpose. When the purchase option is not lifted or when the transfer of ownership is not realized, the lease credit can only be converted into a lease through the conclusion of a lease contract.
Art. VII. 81. § 1er. In terms of leasing, the amount of the credit is the cash price, reduced by the amount of the T.V.A., of the tangible property offered in leasing. The price of additional service benefits, when offered in funding, is reduced from the amount of the A.T., without prejudice to the application of section VII. 87, also included in the amount of the credit. In this case, the contract mentions the price of the constituent elements of the amount of the credit.
§ 2. If a leasing credit provides one or more times during which a purchase option can be lifted, the credit contract must mention the corresponding residual values each time.
If these residual values cannot be determined at the time of the conclusion of the credit contract, the contract must mention parameters allowing the consumer to determine these residual values when the purchase option is lifted.
The King can determine these parameters and their use.
§ 3. Without prejudice to the provisions of Article VII. 78. The lease agreement states:
1° if the purchase option can be lifted at several times, the total amount due by the consumer until the purchase option can be lifted for the first time and for the last time. If at the conclusion of the credit contract, the residual value can only be determined using parameters, the credit contract must mention on the one hand, the total amount of the payments to be made and, on the other hand, the minimum and maximum residual value calculated on the basis of these parameters, to be paid by the consumer at the time the purchase option is lifted;
2° where applicable, the amount of security and the lender's commitment to make the income of the security deposit available to the consumer.
Art. VII. 82. If the lessor requests a security right to the consumer, it may only be constituted by a security deposit, in the form of a term account, opened for that purpose on behalf of the consumer with a credit agency.
Interests generated by the sum so deposited are capitalized.
The lessor has a special privilege on the balance of the account referred to in paragraph 1er for any debt resulting from the non-performance of the leasing contract.
The balance may only be disposed of by virtue of a judicial decision or a written agreement concluded after the failure to execute the contract or after the performance of the contract. The judicial decision is enforceable by provision, notwithstanding opposition or appeal, and without bail or cantonment.
Section 3. - Right of withdrawal.
Art. VII. 83. § 1er. The consumer has the right to give up the credit contract for a period of fourteen days, without giving any reason. The period of this right of withdrawal begins to run:
1° on the day of the conclusion of the credit contract, or
2° on the day the consumer receives the terms and conditions of contract and the information referred to in Article VII. 78, if the date is after the date referred to in 1° of this paragraph.
§ 2. When the consumer exercises his right of withdrawal:
1° it shall notify the lender, by registered letter to the position or by any other support accepted by the lender in accordance with Article VII. 78, § 3, 11°. The deadline shall be deemed to be met if the notification has been sent before the expiry of the notification and
2° in the case of a credit contract for which, under this contract, goods are made available to the consumer, it shall, immediately after the notification of the withdrawal, return the goods it has received and pay to the lender the interest due for the credit withdrawal period;
3° for other credit contracts, he pays to the lender the capital and the accumulated interest on that capital from the date on which the credit was taken up until the date on which the capital is paid, without undue delay and no later than thirty calendar days after sending the notification of the revocation to the lender.
Interest due shall be calculated on the basis of the agreed rate of debt. The lender is not entitled to any other compensation paid by the consumer, except for compensation for non-recoverable expenses that the lender would have paid to a public institution. Payments that are made after the conclusion of the credit contract are refunded to the consumer within 30 days of the withdrawal.
§ 3. The withdrawal of the credit contract entails the full resolution of incidental services contracts.
§ 4. If the consumer invokes the right of withdrawal referred to in this article, articles VI. 58, VI. 59, and VI. 67, do not apply.
§ 5. This section does not apply to credit contracts in which this book requires that they be entered into by a notary, provided that the notary confirms that the consumer enjoys the rights referred to in Articles VII.70, VII.74 and VII.78.
Section 4. - Undue clauses
Sub-section 1re. - Illegitimate payments
Art. VII. 84. Whenever the payment of a price is paid, in whole or in part, using a credit contract for which the seller or service provider intervenes as a lender or credit intermediary for the conclusion of this credit contract, no undertaking may validly be contracted by the consumer with respect to the seller or service provider, nor any payment made from one to another, as long as the consumer has not signed the contract.
Any clause that the consumer undertakes, in the event of a refusal of the financing, to pay the agreed price.
Art. VII. 85. Any clause in a credit contract that authorizes the lender to claim compensation to the consumer, if the lender has not paid in whole or in part the amount of the credit granted, is prohibited and deemed not to be in writing.
Sub-section 2. - The calculation of debtor interest and the variability of the debtor rate and costs
Art. VII. 86. § 1er. The debt interest rate is fixed or variable. If one or more fixed debtor rates have been stipulated, the debtor or fixed debtor rates apply for the period specified in the credit contract.
§ 2. Except as otherwise provided in this section as to the variability of the debtor rate and the costs associated with cash withdrawal services to an automatic ticket distributor and, without prejudice to the application of Article VII. 3, § 3, 6°, any clause to amend the terms of the credit contract shall be deemed not in writing.
§ 3. The credit contract may stipulate that the debtor rate will be changed within the limits of Articles VII. 78, § 2, 7°, and VII. 94. Without prejudice to the provisions of Article VII.97, §§ 1 and 3, the contracts of credit, with the exception of the opening of credit without the constitution of a mortgage, may only provide for the variability of the debtor rate under the conditions and in accordance with the rules laid down in Article VII. 128, §§ 1 to 3 and § 5 and taken under it. In this case, the notion of "constitutive act", referred to in Article VII. 128, means "credit contract."
The opening of credit may state that the costs associated with cash withdrawal services to an automatic ticket distributor, when not included in the overall effective annual rate, are unilaterally modified. In the event of changes to these costs, the consumer has the right to cancel without charge the opening of credit within two months from the notification of this change. The provisions of Article VII. 15, § 1er, are in compliance. This change may take place only once during the period of the opening of credit and the costs initially provided may be increased by not more than 25 p.c. The King may set a calculation method and a maximum for these costs.
§ 4. Where applicable, the consumer is informed of a change in the debtor rate, on a sustainable basis, before the change comes into force. This information also indicates, where applicable, the amount of payments to be made after the new debtor rate comes into force and specifies whether the number or periodicity of payments varies.
However, the parties may agree in the credit agreement that the information referred to in the preceding paragraph is communicated periodically to the consumer, when the change in the debtor rate results from a change in the reference rate, that the new reference rate is made public by appropriate means and that information relating to the new reference rate is also available in the lender's premises.
§ 5. When, for an opening of credit without a hypothec, the change in the debtor rate exceeds a margin of 25 p.c. of the initially or previously agreed rate and, for contracts concluded for a period longer than one year, the consumer has the ability to terminate the credit contract unilaterally and without costs, within the limits of Article VII. 98. Any contractual clause contrary to this provision is void.
§ 6. When all debtor rates are not defined in the contract, it must be considered that the rate is fixed only for the partial periods for which the debtor rates have been determined exclusively using a given fixed percentage agreed upon at the conclusion of the credit contract.
Subsection 3. - Miscellaneous services
Art. VII. 87. § 1er. The lender and credit intermediary are prohibited from requiring the consumer, as part of the conclusion of a credit contract, to enter into another contract with the lender, credit intermediary or a third person designated by the lender.
The burden of proof that the consumer has had the free choice in relation to the conclusion of any incidental service contract concluded at the same time that the credit contract is the responsibility of the lender and the credit intermediary.
§ 2. It is also prohibited for the lender and the credit intermediary to provide to the consumer, upon conclusion of a credit contract, the obligation to put the borrowed capital, in whole or in part, in pledges or to allocate it, in whole or in part, to the establishment of a deposit or to the purchase of securities or other financial instruments.
§ 3. The system of replenishment of capital is prohibited.
§ 4. Any clause contrary to this section shall be deemed not in writing.
Sub-section 4. - Unauthorised guarantees
Art. VII. 88. As part of a credit contract, it is prohibited for the consumer, or if the consumer purchases the person who constitutes a security right, to promise or to guarantee by means of a currency letter or promissory note the payment of the commitments he has contracted under a credit contract. It is also prohibited to have a cheque signed as a security right for the total or partial refund of the amount owing.
Art. VII. 89. § 1er. Any assignment of law relating to the amounts referred to in Article 1410, § 1er, of the Judicial Code, operated under a credit contract governed by this book, is subject to the provisions of sections 27 to 35 of the Act of 12 April 1965 on the protection of the remuneration of workers and may be executed and assigned only to amounts payable under the credit contract on the date of notification of assignment.
§ 2. The income or remuneration of minors, even emancipated, is inceivable and elusive from the head of credit contracts.
Section 5. - The execution of the credit contract
Sub-section 1re. - Provision of credit
Art. VII. 90. § 1er. As long as the credit contract has not been signed by all parties, no payment can be made, neither by the lender to the consumer or on behalf of the consumer, nor by the consumer to the lender.
Unless otherwise provided in the credit contract, the lender shall make the amount of the credit immediately available by transfer to the consumer's account or to that of a third party designated by the consumer or by cheque.
The provision of credit in cash or cash may only be made in the cases indicated by the King in a deliberate order in the Council of Ministers, taking into account the amount of credit, type of credit, purpose and timing of the conclusion of the credit contract.
§ 2. The lender continues to respond to amounts that he has made to the credit intermediary, in accordance with the credit contract, until they are, in their entirety, made available to the consumer or a third party designated by him.
Sub-section 2. - Financing of goods and services
Art. VII. 91. When the credit contract mentions the property or service benefit funded or the amount of the credit contract is paid directly by the lender to the seller or service provider, the obligations of the consumer only take effect from the delivery of the property or the service delivery; in the event of sale or delivery of successively executed services, they shall take effect from the beginning of delivery of the product or service delivery and cease in the event of interruption of the service, unless the consumer receives the amount of the credit himself and the identity of the seller or service provider is not known by the lender.
The amount of the credit may only be returned to the vendor or service provider after notification to the lender of the delivery of the property or service delivery.
The notification referred to in the second paragraph shall be made on a sustainable basis, including a delivery document, dated and signed by the consumer.
The interest due under the credit contract shall only take place on the date of that notification.
Art. VII. 92. When the consumer has exercised a right of withdrawal for a contract for the supply of goods or services, it is no longer bound by a related credit contract.
Where goods or services subject to a related credit contract are not provided, are only partially provided or are not in accordance with the contract for the supply of goods or services, the consumer has the right to appeal against the lender if the consumer has made an appeal against the supplier without gain of cause as he may claim under the law or contract for the supply of goods or services.
An exception may only be invoked with respect to the lender provided that:
1° the consumer has placed the seller of the property or the service provider on a continuous basis by registered letter to the position to perform the obligations arising out of the contract, without having received satisfaction within one month of the date of deposit to the position of the recommended letter;
2° the consumer informed the lender that if the lender fails to obtain satisfaction from the seller of the property or service provider in accordance with 1°, he will make the payment of the remaining payments due to a blocked account. The King may set the terms and conditions for the opening and operation of the account.
Interests generated by the sum so deposited are capitalized.
By the sole fact of the deposit, the lender acquires a privilege on the assets of the account for any receivable resulting from the total or partial non-performance of the consumer's obligations.
It may only be disposed of the amount deposited for the benefit of either of the parties, by producing a written agreement, established after the amount has been blocked on the above account, or by a true copy of the shipment of a judicial decision. This decision is enforceable by provision notwithstanding opposition or appeal, without bail or cantonment.
Art. VII. 93. When the remote credit contract mentions the property financed, sold remotely, or the amount of the credit or the amount taken is paid directly by the lender to the seller remotely, the delivery of the property may take place, by derogation from Articles VII. 90 and VII. 84, paragraph 1er, before the conclusion of the credit contract and provided that the consumer has, in good time before delivery, the contractual conditions and the information referred to in Article VI. 57, § 1er.
Subsection 3. - Maximum costs and reimbursement times
Art. VII. 94. § 1er. The King determines the method of fixing and, where applicable, adjusting the overall actual annual rates maxima and fixed, the maximum effective annual rate according to the type, amount and possibly the duration of the credit.
§ 2. Where the calculation of the overall effective annual rate requires the use of assumptions, the King may also fix in accordance with the provisions referred to in § 1er, the maximum cost of the credit, i.e. the maximum debt rate, and if applicable, the maximum recurring costs and the maximum non-recurring charges related to the opening of credit.
§ 3. The rates established under this section remain applicable in any event until their revision.
Any reduction in the maximum overall effective annual rate and, where applicable, the maximum cost of the credit is to be applied immediately to existing credit contracts that provide, within the limits of this Act, the variability of the overall effective annual rate or the debtor rate.
Art. VII. 95. § 1er. The King may fix the maximum amount of credit repayments based on the amount borrowed and the type of credit.
§ 2. Indeterminate or fixed-term credit openings of more than five years must set a zeroing period in which the total amount to be refunded must be paid. The King may set a maximum period of zeroing.
§ 3. If a credit contract, repayable by constant term amounts, authorizes the variability of the debtor rate, it states that in the event of adaptation, the consumer may require the maintenance of the term amount, as well as the extension or reduction of the agreed refund period. The exercise of this right may lead to the exceedance of the maximum refund period referred to in § 1er.
Prior to the conclusion of the credit contract, the lender expressly informs the consumer of this right.
§ 4. At the latest two months before the expiry of the zeroing period, the lender shall notify the consumer of this by means of any useful means of communication.
Sub-section 4. - Early repayment and termination
Art. VII. 96. The consumer has the right to repay in whole or in part and at any time the balance of the remaining capital due in advance. In this case, it is entitled to a reduction in the total cost of credit for the consumer, which corresponds to the interest and costs due for the residual duration of the contract.
The consumer who wishes to repay, in whole or in part, anticipates his credit, advises the lender of his intention by registered letter to the position, at least ten days before the refund.
Art. VII. 97. § 1er. The lender may provide fair and objectively justified compensation for a total or partial advance refund.
The lender shall communicate to the consumer the amount of compensation claimed, on a sustainable basis, within 10 days of receipt of the letter referred to in Article VII. 96, paragraph 2 or the receipt on its account of the sums refunded by the consumer. This communication includes the calculation of compensation.
If the period between the advance refund and the agreed termination date is more than one year, this allowance may not exceed 1 p.c. of the eligible capital refunded party.
If the period does not exceed one year, the allowance may not exceed 0.5 p.c. of the portion refunded in advance capital.
§ 2. No compensation may be claimed by the lender:
1° if by the application of articles VII. 194 to VII. 196, VII. 200 or VII. 201, consumer bonds have been reduced at a cash or amount borrowed;
2° in the case of a refund in accordance with an insurance contract conventionally intended to guarantee the refund of the credit;
3° in case of a credit opening;
4° if the advance refund occurs in a period for which the debtor rate is not fixed.
§ 3. Any allowance may not exceed the amount of interest that the consumer would have paid during the period between the advance refund and the date of termination of the agreed credit contract.
Art. VII. 98. § 1er. The consumer may, at any time and without charge, terminate an indefinite credit contract, unless the parties have agreed to a notice period. This period may not exceed one month. The consumer exercises his right of termination by sending the lender a registered letter to the position or another support accepted by the lender.
If the credit contract provides, the lender may terminate an indefinite credit contract by giving the consumer a notice of at least two months on a sustainable basis. When the lender exercises his right, he shall notify the consumer, by registered letter to the post or any other support accepted by the consumer.
§ 2. If the credit contract provides, the lender may, for objectively justified reasons, in particular if the lender has information to consider that the consumer will no longer be able to meet its obligations, suspend the consumer's right to levy under a credit contract. The lender shall inform the consumer of the suspension and the reasons for the suspension on a sustainable basis, if possible before the suspension and no later than immediately thereafter, unless the communication of this information is prohibited by another legislation or is opposed to public or public safety objectives.
Subsection 5. - Account statement
Art. VII. 99. § 1er. For each credit opening, the consumer is regularly informed, on a sustainable basis, using an account statement with the following information:
1° the specific period on which the account is recorded;
2° the amounts taken and the date of the sampling;
3° the total amount remaining due to the previous statement and the date of the preceding statement;
4° the new total amount remaining due;
5° the date and amount of payments made by the consumer;
6° the debtor rate applied;
7° the amounts distinct from all charges applied;
8° where applicable, the minimum amount to be paid and interest.
§ 2. For credit openings other than uncovered facilities, the following additional information is provided:
1° where applicable, the remaining balance due to the previous statement;
2° where applicable, the separate dates of the costs due;
3° the date and amount of interest due by applied rate of debt as well as an indication of the method of calculating these interest on the remaining balance due using the debtor rate.
Sub-section 6. - Unauthorised discovery and overtaking
Art. VII. 100. § 1er. When an uncovered person occurs in connection with an opening of credit, while the lender explicitly prohibited any discoveries exceeding the amount of the authorized credit, the lender suspends the credit levies and requires the refund of the unlicensed amount within a maximum period of forty-five days from the day of the unauthorised discovery.
In this case, only late interest and fees expressly agreed and authorized by this Book may be claimed. Delay interest is calculated on the amount of unauthorised discovery.
The lender informs the consumer, without delay, on a sustainable medium:
1° of unauthorised discovery;
2° of the amount of unauthorised discovery;
3° of all penalties and any fees or interest applicable to the amount of unauthorised discovery.
§ 2. If the consumer does not comply with the obligations under the preceding paragraph, the lender terminates the contract in accordance with Article VII. 105, paragraph 1er, 3°, or by innovation establishes a new contract with a higher amount of credit, in accordance with all the provisions of this book.
Art. VII. 101. When a exceedance reaches at least 1.250 euros and extends for a period of more than one month, the lender informs the consumer, without delay, on a sustainable medium:
1° of overtaking;
2° the amount of the overtaking;
3° of the debtor rate, all penalties and all charges applicable to the amount of the exceedance.
The King can change that amount. As long as the information referred to in the preceding paragraph is not provided, the lender may not apply on the amount of the exceedance as the last applied debt rate, excluding any penalty, allowance or interest of delay.
If the exceedance is not cleared after a period of three months from the date of its occurrence, the lender shall suspend the credit levies and terminate the contract in accordance with Article VII, 105, paragraph 1er, 3°, or by innovation establishes a new contract with a higher amount of credit, in accordance with all the provisions of this book.
Section 6. - The assignment of the credit contract and the receivables resulting from this contract
Art. VII. 102. The contract or debt resulting from the credit contract may only be transferred to or after subrogation, be acquired by a lender registered or registered under this book, or transferred to or acquired by the Bank, the Fund for the Protection of Deposits and Financial Instruments, Credit Insurers, Collective Investment Institutions referred to in the Act of 24 July 2004 relating to Certain Forms of Collective Management of Capital Investment Portfolios,
Art. VII. 103. Without prejudice to the provisions of Article VII. 102, the assignment or subrogation is only enforceable to the consumer after the consumer has been notified by registered letter to the position, except where the immediate assignment or subrogation is expressly provided for in the contract and the identity of the assignee or the subrogated third party is mentioned in the credit contract. This notification is not mandatory when the original lender, in agreement with the new debtor, continues to manage the credit contract with the consumer.
Art. VII. 104. In the case of assignment or subrogation for the receivable arising out of the credit contract, the consumer retains in respect of the assignee or creditor subrogated the means of defence, including the use of compensation, that the consumer may oppose the assignor or the subrogator. Any contrary clause is deemed non-written.
Section 7. - Non-performance of the credit contract
Art. VII. 105. Any clause that provides for a termination of the term or an express resolute condition shall be prohibited and deemed not to be in writing unless it is stipulated:
1° in the case where the consumer is in default of payment of at least two maturity dates or an amount equivalent to 20 p.c. of the total amount due by the consumer and would not have been executed one month after the deposit to the post of a recommended letter containing a stay. These terms must be recalled by the lender to the consumer during the stay;
2° for the case where the consumer would dispose of the property prior to the payment of the price or make use of it contrary to the terms of the contract, while the lender would have reserved the property or while the transfer of ownership, in accordance with the leasing rules, has not yet been realized;
3° in case the consumer exceeds the amount of the credit referred to in Article VII. 100 and VII. 101 and would not have been carried out one month after the filing of a recommended letter containing a stay. These terms must be recalled by the lender to the consumer during the stay.
Without prejudice to the application of Article VII. 98, any clause that provides that the lender may at any time in the course of a contract, requiring the refund of the amount of the levy is prohibited and deemed unwritten.
Art. VII. 106. § 1er. In the event of a contract resolution or termination of the term, due to the non-performance of its obligations by the consumer, no payment other than those indicated below may be claimed from the consumer:
- the remaining balance due;
- the amount, fallen and unpaid, of the total cost of credit for the consumer;
- the amount of the agreed delayed interest calculated on the remaining balance due;
- the agreed penalties or allowances, provided that they are calculated on the remaining balance owing and limited to the following limits:
- not more than 10% calculated on the remaining balance of up to 7,500 euros;
- not more than 5% calculated on the remaining balance of more than 7.500 euros.
§ 2. In the event of a mere delay in payment, which does not result in the resolution of the contract or the termination of the term, no payment other than those indicated below may be claimed from the consumer:
- the fallen and unpaid capital;
- the amount, fallen and unpaid, of the total cost of credit for the consumer;
- the amount of the agreed delayed interest calculated on the fallen and unpaid capital;
- the agreed costs of reminder letters and staging, up to one consignment per month. These fees consist of a maximum lump sum of 7.50 euros plus postal charges in effect at the time of shipment. The King can adapt this lump sum according to the Consumer Price Index.
When the credit contract is terminated in accordance with Article VII. 98, § 1er, or has come to an end and that the consumer has not performed three months after the filing of a registered letter containing a stipulation, no payment other than those indicated below may be claimed from the consumer:
- the fallen and unpaid capital;
- the amount, fallen and unpaid, of the total cost of credit for the consumer;
- the amount of the agreed delayed interest calculated on the fallen and unpaid capital;
- the penalties or allowances agreed within the limits and limits referred to in § 1er.
§ 3. The agreed delayed interest rate may not be higher than the debt rate recently applied to the amount concerned or to the partial periods concerned, plus a maximum coefficient of 10 p.c..
§ 4. Any payment claimed under §§ 1er and 2 must be detailed and justified in a document delivered free of charge to the consumer.
A new document detailing and justifying the amounts due under §§ 1er and 2 must be given free of charge, not more than three times a year, to the consumer who makes the request.
The King may determine the references to this document and impose a counting model.
§ 5. By derogation from section 1254 of the Civil Code, in the event of a resolution or termination of the term of the contract any payment made by the consumer or the person who constitutes a security right, cannot be charged on the amount of late interest or other penalties and damages only after the refund of the remaining balance due and the total cost of the credit for the consumer.
§ 6. Any clause, in the event of non-performance of its obligations by the consumer, shall be prohibited and deemed not in writing, to include penalties or damages not provided for in this book.
Art. VII 107. § 1er. The justice of the peace can grant the payment facilities it determines to the consumer whose financial situation has worsened.
When the grant of payment facilities increases the costs of the credit contract, the justice of the peace fixes the share to be borne by the consumer.
The competent judge may grant the consumer a payment period or a laying of the debts referred to in Article VII. 106, §§ 1er and 2, even where the lender applies a clause as referred to in Article VII. 105 or requires the application of it.
§ 2. By derogation from sections 2032, 4°, and 2039 of the Civil Code, the bail, and if necessary the person who constitutes a security right must respect the payment facilities plan, as granted by the justice of the peace to the consumer.
§ 3. When compelled to pay, the bail and, if applicable, the person who constitutes a security right may apply to the justice of the peace for the grant of payment facilities, in accordance with the same terms and conditions as those set out in articles 1337bis to 1337octies of the Judicial Code relating to the granting of consumer credit payment facilities.
Art. VII. 108. § 1er. Without prejudice to the application of § 2, where the consumer has already paid sums equal to at least 40% of the price in the case of a property subject, either of a reservation of ownership clause or of a pledge of pledge with irrevocable mandate, this property may only be taken up under a judicial decision or a written agreement concluded after being issued by registered letter to the position.
The lender must, within thirty days of the date of sale of the funded property, notify the price obtained from the consumer and return the overpayment.
§ 2. In the event that the consumer, in the context of a lease, has paid 40 p.c. or more of the price in the case of a tangible property, he or she may not require the possession of the property unless expressly agreed by the parties, after the conclusion of the contract or by decision of the judge.
§ 3. In no case, a warrant or agreement entered into for the recovery of a property financed by a credit contract cannot result in unjustified enrichment.
Section 8. - Security rights
Art. VII. 109. § 1er. Bail and, where applicable, any other form of security of any obligations arising from a credit contract specify the amount that is guaranteed. Claimed security rights are only valid for those amounts that may be increased by late interest, excluding any other penalty or non-performance costs. The lender must give a copy of the loan contract to the security deposit and to the person who constitutes a security right free of charge.
§ 2. Each security agreement for which the security person is registered in accordance with Article VII. 148, § 2, 1°, mentions:
1st clause: "The credit contract for which you constituted this security right is the subject of a registration at the Central Credits to the Individuals where, in accordance with Article VII. 148, § 2, 1°, you are registered as a security person.
2° the finalities of treatment in the Central;
3° the name of the Central;
4° the existence of a right of access, rectification and deletion of data as well as the retention times of data.
§ 3. The lender shall inform any person who constitutes a security right, the conclusion of the credit contract, and, in advance, any modification of the contract.
For credit contracts concluded for an indefinite period, bail or personal security may only be claimed by the lender for a period of five years. This period can only be renewed through the express agreement, at the end of the period, of the bond or of the person who constitutes a personal security.
Art. VII. 110. The lender shall communicate to the bail and, where applicable, to the person who constitutes a security right, the delay in payment by the consumer of two maturity dates or at least one fifth of the total amount to be refunded. It communicates to it the payment facilities granted and informs it in advance of any changes to the original credit contract.
Art. VII. 111. By derogation from section 2021 of the Civil Code, the lender may not act against the bond and, if necessary, against the person who constitutes a security right, unless the consumer is in default of payment of at least two maturity or an amount equivalent to 20 p.c. of the total amount to be refunded or the last maturity, and if after placing the consumer in the position by registered letter to the position, the consumer has not made a notice of delivery
Section 9. - Credit intermediaries
Art. VII. 112. § 1er The credit intermediary can only intervene for credit contracts with registered or registered lenders.
§ 2. The credit broker can only practice his business under his own name.
Art. VII. 113. § 1er. The credit intermediary may not apply for credit to a consumer if, in the light of the information available to the consumer or should be disposed of, in particular on the basis of the information referred to in Article VII. 69, the Panel finds that the consumer will clearly not be able to meet the obligations under the credit contract.
§ 2. The credit intermediary cannot split credit requests. It shall provide the lender with the necessary information referred to in Article VII. 69.
§ 3. Anyone who acts as a credit intermediary shall communicate to all solicited lenders the amount of other credit contracts that he has requested or received for the benefit of the same consumer, in the two months preceding the introduction of each new credit application.
Art. VII. 114. § 1er. The credit intermediary may not receive, directly or indirectly, any remuneration, in any form, from the consumer who requested his intervention.
§ 2. The credit intermediary has the right to receive a commission only if the credit contract for which it intervenes, has been concluded validly and regularly with respect to the form.
§ 3. The payment of the commission must be scaled up to at least half, according to the rules established by the King, depending on the nature of the credit and its duration.
§ 4. When a credit contract is entered into for the full and anticipated reimbursement of a prior credit contract, no commission is payable if the same credit intermediary intervened for both contracts.
This provision is not applicable in the event of a significant decrease in the overall effective annual rate of the new credit contract compared to the previous credit contract.
Section 10. - Debt mediation
Art. VII. 115. Debt mediation is prohibited except:
1° if practised by a lawyer, a departmental officer or a legal agent in the exercise of his profession or his or her function;
2° if it is practised by public institutions or by private institutions accredited to this effect by the competent authority.
Section 11. - Processing of personal data
Sub-section 1re- The transmission of personal data
Art. VII. 116. Except in the case of assignment or subrogation in accordance with Articles VII. 102 and VII. 103, the personal data of the consumer or the person who constitutes a security right processed in the context of the conclusion or execution of a credit contract by the lender may not be transmitted to a third party outside the cumulative conditions listed in this section.
Art. VII. 117. § 1er. Personal data can only be processed as part of the following double purpose:
1° to assess the financial situation and assess the solvency of the consumer or the person who constitutes a security right;
2° in the context of the granting or management of the credits or payment services referred to in this book which may encumber the private heritage of a natural person and whose execution may be pursued on the private heritage of that person.
In no case can personal data be used for commercial prospecting purposes.
§ 2. The data collected must be relevant, appropriate and not excessive in view of the purposes listed in the preceding paragraph.
Art. VII. 118. § 1er. Only data relating to the identity of the consumer or the person who constitutes a security, the amount and duration of the credits, the periodicity of the payments, the ease of payment, the delays in payment, and the identity of the lender may be processed, with the exception of any other data. This last data is only communicated to the controller and to the consumer exclusively, except for delays in payment.
The King may, by order deliberately in the Council of Ministers, determine the content of the data referred to in the preceding paragraph.
§ 2. Derogation from the provisions of paragraph 1erParagraph 1er, the King may, by order deliberately in the Council of Ministers:
1° to determine the categories of criminal convictions against the consumer or the person who constitutes a security right, which may be treated provided that the consumer or the person who constitutes a security right has been informed in advance and in writing;
2° designate natural or legal persons of public or private law authorized to process the data referred to in 1°;
3° fix the special conditions and the modalities for this treatment.
Art. VII. 119. § 1er. Personal data can only be provided to the following persons:
1° registered or registered lenders;
2° persons who are authorized by the King to carry out credit insurance transactions pursuant to the Act of 9 July 1975 on the control of insurance companies;
3° FSMA and the Bank as part of their missions;
4° payment service providers, to the extent that they communicate, on the basis of reciprocity rules, their data relating to payment services;
5° associations of persons or institutions referred to in 1°, 2°, and 4°, of this paragraph, approved for this purpose by the Minister or his delegate under the following conditions:
(a) have civil personality;
(b) be trained for purposes excluding any lucre purpose and being incorporated only for the purpose of protecting the professional interests of its members;
c) be composed of members who have not incurred any of the administrative or penal sanctions.
The Minister or his delegate shall decide on the application for approval within two months of the day on which all required documents and data are received.
If the request is not accompanied by all required documents and data, the applicant shall be notified within fifteen days of receipt of the request. In the absence of such notice within this period, the application is considered complete and fair.
The refusal of approval is motivated and is communicated to the applicant by registered letter to the position.
The Minister may suspend or withdraw the approval to persons who no longer meet the above-mentioned conditions or fail to comply with the commitments made in their application for approval;
6o a lawyer, a departmental officer or a court officer, in the exercise of his or her mandate or function, and in the performance of a credit contract;
7° the debt mediator in the exercise of his mission as part of a collective debt settlement, referred to in articles 1675/2 to 1675/19 of the Judicial Code;
8° the agents of the SPF Economy competent to act within the framework of Book XV;
9° persons who exercise a friendly debt collection activity of the consumer and who, for this purpose, in accordance with Article 4 § 1er, of the Act of 20 December 2002 on the amicable recovery of consumer debts, are registered with the SPF Economy;
10° the Commission for the Protection of Privacy as part of its mission.
§ 2. Once received, the data can only be communicated to persons referred to in paragraph 1er.
§ 3. Requests for information addressed to the controller and emanating from the persons referred to in this section, with the exception of the MSDS, the Bank, the agents referred to in paragraph 1er, 8°, and the Commission for the Protection of Privacy, must individualize the consumers on whom the requests are made, by their name, first name and date of birth; these requests may be consolidated.
Sub-section 2. - Data processing
Art. VII.120. § 1er. The data must be deleted when their retention in the file has ceased to be justified. The King may set a time limit for data retention or data categories.
Individuals who have received personal data in the context of the conclusion or management of credit contracts may only have the time required for the conclusion and execution of credit contracts, taking into account, inter alia, the deadlines set by the King under this paragraph for the retention of data.
§ 2. The controller is required to take all measures to ensure the perfect retention of personal data.
Individuals who have been provided with personal data are required to take measures to ensure the confidentiality of such data and the use for the purposes provided for by or under this book, or for the application of their legal obligations.
§ 3. The processing officer is specifically responsible for the supervision or automated exchange of personal data and must, in particular, ensure that automated processing or exchange programs are exclusively designed and used in accordance with this book and its enforcement orders.
The King may set the rules under which the person responsible for processing must carry out his or her mission.
Art. VII. 121. § 1er. When a consumer or a person who constitutes a security right is first registered in a file due to defaults in respect of credit contracts within the meaning of this book, the consumer is immediately informed, directly or indirectly, by the controller.
§ 2. This training should include:
1° the identity and address of the controller. When the representative is not permanently established in the territory of the European Union, he must designate a representative established in Belgian territory, without prejudice to actions that could be brought against the person responsible for the treatment himself;
2° the address of the Commission on Protection of Privacy;
3° the identity and address of the person who communicated the data;
4° the right to access the file, the right to rectify the erroneous data and the right to delete the data, the procedure for exercising the said rights, and the time limit for the retention of the data, if any;
5° the ends of the treatment.
Art. VII. 122. § 1er. With respect to the data recorded in a file concerning its person or heritage, any consumer or person who constitutes a security right may exercise the rights referred to in sections 10 and 12 of the Privacy Act of 8 December 1992 in respect of personal data processing.
§ 2. The consumer and the person who constitutes a security right may freely and without charge, subject to the conditions determined by the King, have the wrong data corrected. In this case, the person responsible for processing is required to disclose this correction to persons who have obtained information from the person and that the person registered indicates.
§ 3. When the file handles payment defaults, the consumer may require that the reason for the default to be communicated be indicated at the same time as the default.
§ 4. The King may determine the terms and conditions for the exercise of the rights referred to in this section.
CHAPTER 2. - Mortgage credit
Section 1re. - Advertising and fees
Art. VII. 123. § 1er. Without prejudice to other legal or regulatory provisions, any advertisement for the mortgage credit mentions the identity or name of the lender. If the advertisement comes from a credit intermediary, it expressly indicates it with its address.
§ 2. The lender provides information in the form of a prospectus to the interested parties.
This prospectus contains the tariff of debtor rates, including all possible reductions and increases of rates and all conditions of granting.
The parties may agree on reductions or increases to the prospectus, whether they are more beneficial to the consumer or if they have been negotiated on its initiative.
§ 3. When the consumer makes an obligation to pay a record or expertise fee, they are listed in an application form signed by the consumer.
§ 4. The King sets out the rules for advertising, prospectus and application forms. In particular, it may impose on lenders and credit intermediaries the use of an actuarial debt rate to facilitate the comparison of mortgage loans.
Art. VII. 124. A credit intermediary is prohibited from direct or indirect charging charges to the credit applicant.
Section 2. - General provisions
Art. VII. 125. The replenishment of capital must be carried out by an assistant credit contract.
This sub-contract can only be a life insurance contract, a capitalization contract or another savings constitution.
The reconstituted capital is at any time the value of redemption or the capital insured or constituted in the case of a life insurance or capitalization contract or the capital already saved in the other cases of savings contracts.
If the replenishment occurs with the lender, in the event of legal or judicial dissolution or bankruptcy of the lender, the replenished capital shall be compensated for the reduction of the lender's debt without compensation.
If the replenishment does not work with the lender, when the credit becomes payable or refundable, the replenishing third party becomes the sole debtor of the replenished capital to the lender. In this case, the lender shall exercise the rights of the consumer to that replenishing third party.
The King may set complementary rules to which the reconstruction must satisfy.
Art. VII. 126. § 1er. There is, in the sense and for the purposes of this chapter, a contract annexed when the consumer subscribes or maintains an insurance contract in force, pursuant to a condition of the credit whose non-compliance could result in the fictitiousness of the debt. This annexed contract may only be:
1° an insurance of the remaining balance due to cover the risk of death, conventionally intended to guarantee the reimbursement of the credit;
2° insurance covering the risk of degradation of the building offered as a guarantee;
3° bail insurance.
§ 2. The lender is not allowed to reserve in the constitutive act the right to impose an increase in coverage during the contract.
The lender is prohibited from directly or indirectly requiring the consumer to enter into the annexed contract with an insurer designated by the lender.
§ 3. Where there is an annexed contract of insurance for the remaining balance due, the insured capital is used, at the time of the death of the insured, to the reimbursement of the remaining balance due and, where applicable, to the payment of accrued and undue interest.
When the capital of such insurance is greater than the remaining balance due, the consumer may at any time reduce the amount to competition.
When insurance is limited to a quotity of credit capital, the same rules apply proportionally.
§ 4. The complementary rules to which the annexation must satisfy are determined by the King.
Art. VII. 127. The debtor rate is fixed or variable. If one or more fixed interest rates have been specified, the fixed interest rate or interest rate shall apply for the period specified in the credit agreement.
Art. VII. 128. § 1er. If the variability of the debtor rate has been agreed, there can be only one debtor rate per credit contract. The following rules apply to this debtor rate:
1° The debtor rate must fluctuate both upward and downward.
2° The debtor rate may only vary upon expiry of specified periods, which may not be less than one year.
3° The variation in the debtor rate must be linked to fluctuations in a benchmark index taken from a series of benchmark indices based on the duration of the periods of change in the debtor rate.
The list and method of calculating the benchmarks are determined by the King, by order deliberately in the Council of Ministers, taken on the advice of the Bank and FSMA after consultation by the latter with the Commission on Insurance.
4° The initial debt rate is the basis for the calculation of consumer interest in the first interest payment.
5° The initial value of the reference index is that of the calendar month prior to the date of the offer referred to in Article VII.133. However, by derogation from this rule, lenders subject to this book must use the value of the benchmark index at their rate rate rate rate rate rate rate rate rate for the type of credit considered. In this case, this value is that of the calendar month prior to the date of this tariff.
6° At the expiry of the periods determined in the constitutive act, the debt rate for the new period is equal to the increased initial debt rate of the difference between the value of the benchmark index published in the calendar month prior to the date of the change, and the initial value of that index.
If the initial debtor rate is the result of a conditional reduction, the lender may, for the fixing of the new debtor rate, rely on a higher debtor rate if the consumer does not meet the expected terms or conditions. The increase cannot exceed the reduction granted at the beginning of the credit, expressed as a percentage per period.
7° Without prejudice to what is set out in 8° below, the constitutive act must state that the variation in the debtor rate is limited, both upwards and downwards, to a specified deviation from the initial debtor rate, without the fact that the difference in the debtor rate may be higher than the difference in the case of a decline.
If the initial debt rate results from a conditional reduction, the constituent instrument may provide that the variation referred to in paragraph 1er operates on the basis of a higher debtor rate if the or conditions fixed for the award of the reduction are no longer met. The applied increase cannot exceed the reduction at the time of taking credit, expressed as a percentage per period.
The constitutive act may also provide that the debtor rate varies only if the change to the increase or decrease produces, compared to the debtor rate of the previous period, a specified minimum difference.
8° If the first period has a duration of less than three years, a change in the increase in the debtor rate may not have the effect of increasing the debtor rate applicable to the second year more than the equivalent of one point per cent per year compared to the initial debtor rate, or increasing the debtor rate applicable to the third year more than the equivalent of two points per cent per year from that initial debtor rate.
§ 2. In the event of a change in the debtor's rate and when capital is depreciated, the amounts of the periodic expenses shall be calculated at the new debtor rate and in accordance with the provisions of the constitutive instrument. In the absence of such provisions, the periodic loads shall be calculated on the basis of the remaining balance and the remaining period to be incurred, according to the technical method used initially.
In the event of a change in the debtor rate and where there is no capital amortization, the interest is calculated at the new rate according to the technical method used initially.
§ 3. Periods, conditions and conditions of variation in the debtor rate and the initial value of the reference index must be included in the constitutive document.
§ 4. Where there is a change in the debtor rate, the change must be communicated to the consumer no later than the date of taking interest at the new debtor rate. If applicable, it shall be accompanied, at no cost, by a new damping table containing the data referred to in Article VII. 140, § 1er, for the remaining period to run.
§ 5. The King shall determine the terms and conditions for the application of this Article by order deliberately in the Council of Ministers.
Art. VII. 129. Interests receivable are calculated:
1° in case of amortization, on the remaining balance due;
2° in case of replenishment, on capital or, after a partial repayment, on the remaining capital to be repaid.
In the case of an appropriation of credit, interest receivables are calculated on the part of the capital that has been taken.
It is prohibited to charge or charge:
1° of interest before the expiry of the period for which it is calculated;
2° interest per fraction of the periods for which they are calculated.
If the debtor interests, under the constitutive act, are paid to a third party, this payment is free to the consumer to the lender.
Art. VII. 130. In addition to the legal costs inherent in the mortgage and what could be due under other legal or regulatory provisions, the credit applicant or the consumer may be charged only with the costs of filing a file and the costs of expertise of the goods offered as collateral.
The costs of expertise are due only if the expertise has taken place. File fees are payable only after the offer referred to in section VII. 133 was done. Otherwise, any advance must be refunded.
If the expert fees are charged to the credit applicant, they are communicated to the applicant in advance. It receives without delay a copy of the report of expertise.
Art. VII. 131. § 1er. The lender may provide compensation for the total or partial advance refund.
This allowance shall be calculated, at the rate of credit, on the amount of the remaining balance owing.
For the calculation, where there is an assistant contract whose redemption value is not assigned to the refund, this amount must be reduced from that redemption value.
In case of partial reimbursement, these rules are applied proportionally.
This allowance cannot exceed three months of interest.
No compensation is payable in the case of a death-related reimbursement pursuant to an annexed or an assistant contract.
§ 2. In the case of an opening of credit, the lender may provide an allowance for the disposition of the capital.
This allowance is calculated on the unpaid portion of the credit granted.
§ 3. The allowances referred to in §§ 1er and 2 must be mentioned in the constitutive act.
Art. VII. 132. No compensation other than those provided for in Article VII. 133, no bargaining remuneration, regardless of its name, form or beneficiary, may be borne by the creditor or consumer.
Section 3. - Credit contract
Art. VII. 133. Prior to the signing of the credit contract, the lender must provide the consumer with a written offer that contains all the terms of the contract, as well as the validity of the offer.
At the latest, at the time of the offer, the lender shall give the consumer a damping table relating to the credit under this offer.
The credit contract contains the following statements:
1° the clause: "This contract is the subject of a registration in the Central Credits to the Individuals pursuant to Article VII.148 of Book VII of the Economic Law Code. ";
2° the finalities of treatment in the Central;
3° the name of the Central;
4° the existence of a right of access, rectification and deletion of data as well as the retention times of data.
Art. VII. 134. The constitutive act cannot stipulate that consumer rights and obligations may be unilaterally modified.
At the time of the signature of the contract, a copy of the constitutive act is handed over to the consumer.
Art. VII. 135. Capital is made available to the consumer in cash or scriptural currency.
Capital cannot be linked to any index, unless the credit is granted in the form of a loan without an interest requirement; In this case, the index can only be the consumer price index.
Art. VII. 136. § 1er. When the consumer pledges, in whole or in part, capital to the lender, the sums pledged interest to the consumer at the debtor rate of credit. In the event of a refund of the credit, the sums pledged and their interests compensate the lender's debt.
§ 2. In the event of legal or judicial dissolution or bankruptcy of the lender, the sums pledged and their interests are compensated for the reduction of the lender's debt without compensation.
Art. VII. 137. It is prohibited to directly or indirectly subordinate a mortgage credit to the obligation to purchase, exchange or subscribe, in any form, securities, such as bonds, shares, shares or participations.
The prohibition referred to in the preceding paragraph does not apply to the subscription to the shares of the cooperative or mutual corporation that grants the credit, provided that the amount of the registration or payment does not exceed two percent of the capital of the credit.
Art. VII. 138. The granting of a mortgage credit may not be subject directly or indirectly to the obligation to enter into an insurance or capitalization contract or to the creation of a savings, except by an assistant or annexed contract referred to in Articles VII. 125 and VII. 126.
When an insurance, capitalization or savings capital is allocated as a supplementary guarantee, other than on the basis of an assistant contract, it shall not be obligated to pay premiums or make savings transactions.
Art. VII. 139. § 1er. The issuance of letters of exchange and the subscription of promissory notes in representation of a mortgage is prohibited.
§ 2. Without prejudice to the validity of these bills as commercial effects, the issuance of foreign exchange letters and the subscription of promissory notes as a representation of a mortgage credit are permitted under the following conditions:
1° the effect will be stipulated payable on a fixed day, the due date to be one of the maturity dates for the depreciation of capital as referred to in Article VII. 140, § 1er;
2° the effect may only provide that an amount that is not greater than the amount of the depreciation payments due in the year preceding the expiry of the effect;
3° the effect must be at the order of the lender;
4° the lender undertakes to endorse the effect that has been or would thus be created only to an aggressed lender in accordance with the provisions of Part 4, Chapter 4, to register on the effect itself a prohibition to endorse it again and to endorse the effect only if the endorsatary, before and in writing:
(a) undertakes not to endorse the effect;
(b) agrees to accept any advance, total or partial payment of the effect;
(c) gives the lender a mandate to receive any payment of the effect, either partial or total, anticipated or maturity, and to give leave for the effect. The revocation of this mandate will be enforceable by a registered letter to the consumer;
(d) agrees to mention the payment to which the lender gave leave on the effect itself.
The constitutive act takes over the entire text of this article and expressly states that the lender shall make the commitments referred to in paragraph (d) above. Any issuance of a letter of exchange or promissory note must be found in a constituting act specifying the date of issue or subscription of the effect, its due date and its amount.
§ 3. Without prejudice to their validity as commercial effects, the issuance of foreign exchange letters or the subscription of promissory notes in representation of a mortgage is also permitted under the following conditions:
(a) each effect shall be created at the lender's order and shall mention the full identity of the lender;
(b) the total amount of the effect or effects created in the representation of the same mortgage credit shall not exceed the capital of that credit;
(c) any issue of a letter of exchange or promissory note under this paragraph shall be recorded in a document, whether private or authentic, forming part of the constitutive act of the credit.
This document will include the date of effect creation and their respective amounts. The constitutive act must also expressly stipulate that the creation of letters of exchange or promissory notes in representation of a mortgage is permitted only under the conditions provided for in Article VII. 139 and if the consumer fails to comply with these conditions, the consumer is entitled under Article VII. 212, refund of accrued interest in the credit contract;
(d) the endorsement of the effects referred to in this subsection shall be carried out only for the benefit of a lender subject to Part 4, Chapter 4 of this Act. This limitation and the obligation referred to in paragraph 4 (a) must be mentioned on the effects of the lender at the time of their first endorsement.
§ 4. Without prejudice to their validity as a trade effect, the presentation to the payment of effects created to represent a credit is subject to the following conditions:
(a) the beneficiary of an effect may only present the beneficiary to the payment after, if any, having reduced the amount, by partial departement, to an amount equal to or less than the amount owing to the remaining balance under the credit - excluding the endorsement of effects created in the representation of that credit - at the time of the said presentation;
(b) with a view to the application of littera (a) of this paragraph, the lender shall be required to provide information on a request to determine the amount payable on the remaining balance owing.
Without prejudice to the possible recourse of the lender against an endossataire of such an effect, any payment made by the consumer on presentation of an effect created in representation of a mortgage loan is imputed on the remaining balance due under this credit and frees the consumer from competition vis-à-vis the lender. Endossataire can prevent the consumer from paying the lender again.
Art. VII. 140. § 1er. If capital is to be depreciated, the constitutive act must determine the periodic expenses of the amortizing payment and interest, as well as the times and conditions to which these amounts are to be paid.
In addition, it must include a depreciation table that must contain the decomposition of each periodic charge, as well as the indication of the remaining balance due after each payment.
When a reduction in interest rates is granted, the damping table shows the amounts to be paid and the remaining balances due to this reduction. If the reduction is subject to change, a new damping table is provided, taking into account the changes.
§ 2. If there is a replenishment of capital, the constitutive act must determine the times and conditions to which the interests must be paid and the reconstitutive payments made. The deputy contract must state precisely the obligations of the consumer resulting from the addition.
§ 3. Where neither the amortization nor the replenishment of capital are stipulated, the constitutive act must mention the times and conditions of payment of interest.
Art. VII. 141. The replenishment shall not exceed the capital or, after a partial repayment, the capital remaining to be repaid.
If it is used, for the same capital, of several modes of depreciation or replenishment, the constitutive act must indicate the quotity of the capital to which each of these modes relates.
Art. VII. 142. When the replenishment period exceeds that of the credit, the consumer has the right to require that the lender extend the credit, without compensation or increase in any interest rate, until the replenishment of the capital.
Where applicable, the new constitutive act has passed to the consumer's expense.
Art. VII. 143. Where, as a supplementary guarantee of the credit, an assignment of remuneration has been stipulated, the transfer of remuneration may only be executed and assigned to a maximum of the amounts payable under the constitutive act on the date of notification of the assignment.
The sums thus collected must be allocated to the payment of the amounts due at that time.
Art. VII. 144. The causes of foreseeability must be repeated in the constitutive act by a separate clause. They cannot result from a lender's fact.
Art. VII. 145. § 1er. The consumer has the right to make at any time the total refund of the capital.
Unless otherwise provided by the constitutive act, the consumer has the right to make a partial refund of the capital at any time. The contrary provision may not exclude a partial refund once a calendar year, nor the reimbursement of an amount equal to a minimum of 10% of the capital.
§ 2. In case of reconstruction, the consumer has, at the time of refund, the choice:
1° in the case of a total refund, to fully or partially affect the reconstituted capital or not to affect it;
2° in the case of a repayment of a fraction of the total repayment, the total or partial allocation of the same fraction of the reconstituted capital or the non-affected capital.
In addition, the consumer has the right to take into consideration the part of the contract that is no longer an assistant, to reduce the contract premiums to what is required to maintain the deputy party.
The constitutive act must state these terms and conditions.
§ 3. The lender can only provide for his benefit the purchase of an assistant contract if the proceeds of the sale of the real property given as a guarantee do not allow him to obtain the refund of his credit.
§ 4. Payments in capital and indemnity made under the constitutive act to a third party shall be free of charge to the lender for an advance refund.
Art. VII. 146. § 1er. Replenished capital becomes payable when:
1° the credit is due;
2° the consumer exercises its legal or conventional right to refund the capital;
3° the lender accepts the anticipated refund offered by the consumer.
§ 2. In the event of a failure to pay an amount due, the lender must, within three months of the due date, send the consumer a warning sent by registered letter to the post taking the consequences of the non-payment.
In the event of failure to comply with this obligation, the contractual increase in the debtor rate for late payment as provided for in Article 1907 of the Civil Code cannot be applied on the said maturity; In addition, for this period, a payment period of six months without additional costs or interest must be granted; this period takes place on the day of the unpaid maturity.
Section 4. - Payment facilities
Art. VII. 147. Any execution or seizure to which it is carried out under a judgment or other authentic act is preceded, within the framework of this chapter, barely nullified, of an attempt to conciliation before the judge of seizures, which must be taken on the hearing sheet.
Any request for ease of payment by the consumer, bail and, where applicable, the person who constitutes a personal security right is addressed to the judge of the seizures.
Sections 732 and 733 of the Judicial Code are applicable.
By derogation from sections 2032, 4°, and 2039 of the Civil Code, bail and, where applicable, any person who constitutes a personal security right must comply with the payment facilities plan granted by the consumer court.
CHAPTER 3. - From Central Credits to Individuals
Section 1re.
Art. VII. 148. § 1er. The Bank is responsible for registering in the Central:
1° the credit contracts that fall under the scope of this book (positive volume) and
2° the defaults arising from these contracts (negative ballot) that meet the criteria set by the King.
The preceding paragraph does not apply to the credit contracts referred to in Article VII.3, § 3, 1° and 2°, with respect to the positive and negative portions, or to exceedances, with respect to the positive portion.
§ 2. The data recorded in the Central concerned:
1st the identity of the consumer, the lender and, where applicable, the assignee and the person who constitutes a security right;
2° the references of the credit contract;
3° the type of credit;
4° the characteristics of the credit contract that determine the debiting situation of the contract and its evolution;
5° where applicable, the reason for default of payment communicated by the consumer;
6° where applicable, the payment facilities granted to the consumer.
The King determines the precise content, the conditions and the terms and conditions of updating and the time limits for the retention of such data. It can complete this list with data that are useful for the exercise of the Bank's duties as a prudential supervisor.
The King may, by a deliberate decree in the Council of Ministers, also determine the additional information that the Bank, in order to produce statistics, may request persons referred to in Article VII. 149.
§ 3. The Bank develops the administrative and technical instructions to be followed by individuals who are required to communicate or consult with the Centre.
Section 2. - Communication and data consultation.
Art. VII. 149. § 1er. In order to obtain information on the financial situation and solvency of the consumer, lenders consult with the Central before the conclusion of a credit contract, with the exception of a surcharge, or the delivery of the offer referred to in Article VII.133, paragraph 1er. The King sets out the terms of this consultation.
§ 2. The lenders who are registered or registered to enter into credit contracts and the persons designated by the King shall communicate to the Central the data concerning each credit contract and each default of payment referred to in Article VII. 148, § 1er.
The King determines the deadlines for communicating these data to the Central.
In the event that the competent agents of the SPF Economie note that a lender has entered into credit contracts without having the necessary approval or registration, they may require the lender to register the contracts and defaults of payment by the Central. They inform the Central and the accompanying Committee. The registration fee is charged to the lender. The King may provide payment methods and determine the height of these fees.
Art. VII. 150. For the purposes of this book and to identify consumers and individuals who constitute a security right, lenders use the identification number of the National Register of Physical Persons.
When applying for a credit contract, the consumer communicates the aforementioned identification number.
The Bank is empowered to use the National Register of Physical Persons identification number in its relations with consumers and persons referred to in Article VII. 149, paragraph 1erand VII. 153, § 1er.
Art. VII.151. During the first registration in the negative, the consumer is promptly informed by the Bank. This information shall indicate:
1° the reference of the contract concerned;
2° the finalities of treatment in the Central;
3° the name and address of the person who communicated the data;
4° the existence of a right of access, rectification and deletion of data and the retention times of data;
5° the coordinates of the competent supervisory administration with the SPF Economy and the Privacy Protection Commission.
Art. VII. 152. According to the terms fixed by the King, each consumer and every person who constitutes a security right has access, at no cost, to the data recorded on his or her name and may freely and without charge request the rectification of the wrong data.
In the event of a request for correction, the Bank is required to forward it to the person referred to in section VII. 149, paragraphs 1er and 3, which communicated the data and is responsible for the exact content. Where applicable, this person requests the Central to correct the recorded data.
In the event of a correction, the Bank is required to disclose this correction to individuals who have obtained information from the Central Station and that the registered person indicates.
Art. VII. 153. § 1er. According to the rules that the King determines, the Bank cannot communicate the information:
1° to persons referred to in Article VII. 119, § 1erParagraph 1er1° to 3°, 6° to 8° and 10°;
2° to persons referred to in Article VII. 119, § 1erParagraph 1er4°, to the extent that these people also have an approval as a lender;
3° to persons referred to in Article VII. 119, § 1erParagraph 1er, 9°, but only for the data of the credit contracts that they have actually resumed under their amicable debt collection activity.
Only during a statement in a criminal case.
Can also receive the information contained in the Central, foreign credit plants provided that their purposes, recorded data and privacy protection are equivalent to those of the Central Station and that they provide, by reciprocity, their data to the Central Station.
The King may, if applicable, by category of persons who may be notified of the information in the Central Station, limit the communication of this information to certain data or exclude the communication of certain information.
§ 2. The information provided by the Bank may only be used as part of the granting or management of credits or payment services, which may encroach on the private heritage of a natural person and whose execution may be pursued on the private heritage of that person.
This information cannot be used for commercial prospecting purposes.
The persons referred to in Article VII. 119, § 1erParagraph 1er, 1° and 2°, are, if any and under their responsibility, allowed to inform the credit intermediary of the globalized response to the consultation as the consultaon took place on the basis of a concrete credit application for which the credit intermediary has applied credit intermediation acts. This consolidated response can only relate to the number of credit contracts and the sum of the credit amounts recorded. The credit intermediary may only use such data to meet its obligations under Articles VII. 69 to VII 71, VII. 74 and VII. 75. Once the credit file has been closed, the overall response is no longer available.
The credit intermediary may not ask the consumer or, where appropriate, the person who constitutes a security right to exercise the right of access to the Central Station to communicate the response obtained.
§ 3. Those who have obtained information from the Central Station must take the necessary steps to ensure the confidentiality of this information.
§ 4. Without prejudice to the application of the Act of 8 December 1992 to the protection of privacy in respect of personal data processing, the Bank is empowered to use the data recorded in the Central Station for scientific or statistical purposes or as part of its activities carried out in accordance with the Act of 22 February 1992 establishing the organic status of the National Bank of Belgium.
Art. VII. 154. To complete the information obtained during the consultation referred to in Article VII. 77, § 1erParagraph 2:
1° the Bank is empowered to interrogate on behalf of the lenders the file of notices of seizure, delegation, assignment, collective settlement of debts and claims referred to in Article 1389bis/1 of the Judicial Code. The King determines the data that can be accessed;
2° the King can empower the Bank, subject to the conditions it determines, to question on behalf of lenders of other files centralizing unpaid consumer debts. In this case, the King determines the data that can be accessed.
Section 3. - Miscellaneous provisions
Art. VII. 155. The Bank is empowered to request individuals to whom the information of the Central Station may be provided, the reimbursement of the costs it exposes for the collection, registration, management, control and dissemination of data from the Central Station.
Art. VII. 156. § 1er. It is established with the Bank a Support Committee comprising representatives of lenders, consumers, the Bank, the Privacy Commission and the Minister. The King determines the manner in which these representatives are appointed and how the committee operates.
§ 2. The Accompaniment Committee is responsible for issuing opinions on:
1° any draft decree to be taken in execution of this chapter, except for the order referred to in § 1er;
2° the organization of the Central and the impact of operating procedures on its costs;
3° the proposed annual budget of the Central Region;
4° the draft report referred to in Article VII. 157.
§ 3. The accompanying committee is also responsible for:
1° to approve the annual accounts of the Central and to affect the potential operating surplus;
2° to establish the structure and modalities for the allocation of costs referred to in Article VII. 155;
3° to approve the administrative and technical instructions referred to in Article VII. 148, § 3;
4° to approve information exchange agreements with foreign credit plants under the conditions referred to in Article VII. 153, § 1erParagraph 2.
§ 4. The Accompaniment Committee may request the Bank's College of Revisors to certify the Central's accounts.
Art. VII. 157. At least once a year, the Bank reports on the operation of the Central to the Minister.
The report includes:
1° an overview of the number and nature of the recorded data;
2° an overview of the number of Central consultations;
3° a detailed account of the costs resulting from the operation of the Central Station, indicating any practical or technical problems;
4° an analysis of the evolution of payment defaults.
This report is published in the Belgian Monitor.
CHAPTER 4. - Access to the activity of lenders and credit intermediaries
Art. VII. 158. This chapter applies to any person engaged in a lender or credit intermediary activity in Belgium.
Section 1re. - lenders
Art. VII. 159. § 1er. No one can exercise lender activity in Belgium, if it is not previously registered or registered by FSMA.
No person may bear the lender's title, to indicate the lender's activity referred to in this book, if the lender is not previously registered or registered by the MSDS.
§ 2. By "pension lender" means an active lender in the area of mortgage credit.
By "Consumer Credit Loaner" means an active lender in the field of consumer credit.
§ 3. In the case of assignment of mortgage receivables under this book, the assignee is also subject, without prejudice to the application of consumer credit provisions, including Articles VII.102 to VII.104, to the provisions of this Chapter and Articles VII.123, VII.124 and VII.146, § 2.
Section 2. - Belgian law lenders
Sub-section 1re. - Accreditation conditions
Art. VII. 160. § 1er. Any application for approval is sent to the FSMA in the forms and conditions fixed by the King.
§ 2. Accreditation may be requested:
1° or as a mortgage lender;
2° or as a consumer credit lender.
In its application, the applicant specifies what type of approval he wishes to obtain.
Both approvals may be accumulated by the same corporation.
§ 3. If this is an application for approval as a consumer credit lender, the applicant states:
1° if it intends to offer sales or temporary loans or leasing contracts, and if it intends to act as an immediate assignee or creditor for these credit contracts;
2° if it also intends to offer credit openings or credit contracts for which no particular rule has been provided by or under this book, as well as if it intends to act as an immediate subrogated assignee or creditor for these credit contracts.
§ 4. The application for approval is accompanied by a file that meets the conditions set by the MSDS, which includes the type and volume of the planned operations, as well as the structure of the institution's organization and its close links with other persons. The applicant shall provide any information necessary to assess the applicant's application.
Any changes to the data in the registration file shall be communicated immediately to the ADMSP, without prejudice to the ADMSP's right to collect information from the individual or to request evidence.
The accreditation file also contains evidence that the models of credit contracts, including the dampening tables, which the lender is considering to use, were previously approved by the SPF Economy.
§ 5. The SPF Economie examines whether the contract models comply with all the provisions of this book and Book VI and their enforcement orders. The models are completed in advance to allow for, inter alia, verification of the overall actual annual rate.
Any modification to the contract models is subject to prior approval to the SPF Economy.
§ 6. FSMA approves lenders meeting the conditions set out in this subsection. It shall decide no later than two months from the receipt of a complete record and, no later than six months from the introduction of the application.
Approval decisions are communicated to the applicant by registered letter to the position.
The MSDS may validly notify the applicant of its decisions for the approval or refusal of approval, as well as the retention, prohibition, suspension and withdrawal of the approval by means of pre-printed forms, with a signature reproduced by a mechanographical process.
Art. VII. 161. The lenders are incorporated in the form of a commercial corporation, with the exception of the form of a limited liability private corporation constituted by a single person, or as a legal entity for economic interest groups that are not corporations.
Art. VII. 162. Accreditation is subject to the existence of a minimum capital fixed under the following rules:
1° 250,000 euros at least by category of credit contract for lenders who offer sales or temporary loans or leasing contracts, as well as for lenders who act as an immediate subrogated assignee or creditor for these credit contracts;
2° 2.500.000 euros at least when the lender offers credit openings or consumer credit contracts for which no particular rule has been provided by or under the law, as well as for lenders who act as an immediate assignee or creditor for these credit contracts;
3° 2.500.000 euros at least for lenders who offer mortgage credit contracts, as well as for lenders who act as an immediate transferee or creditor for these credit contracts.
The capital is fully released to the minimum amount set out in paragraph 1.
In the event of the applicant's pre-existence, the emission premiums, the reserves and the deferred result are assimilated to capital. This alone must however rise to 175,000 euros at least in the case referred to in the anea 1er, 1°, and 2,000,000 euros at least in the case referred to in paragraph 1er, 2°, and be released up to these amounts.
Art. VII. 163. § 1er. Accreditation is subject to the communication to the MSDS of the identity of natural or legal persons who, directly or indirectly, acting alone or in conjunction with others, hold in the lender's capital an interest of 20% at least conferring or not the right to vote, or exercising the control of the lender. The communication includes the indication of the quotities of capital and voting rights held by these persons.
Accreditation is denied if the MSDS has reasons to consider that the natural or legal persons referred to in paragraph 1er do not present the qualities necessary to ensure a healthy and prudent management of the lender.
§ 2. When the credit is sought by a lender who is either the subsidiary of a credit institution, an insurance company, a reinsurance company, a stock exchange company or a payment institution, approved in Belgium, or the subsidiary of the parent company of a credit institution, an insurance company, a reinsurance company, a stock exchange company or an insurance company
When the credit is sought by a lender who is either the subsidiary of a credit institution, an insurance company, a reinsurance company, an investment company or a company of other credit institutions
Art. VII. 164. § 1er. The members of the legal lender administration body and the persons responsible for the effective management, if any the members of the steering committee, are exclusively natural persons.
Persons referred to in paragraph 1er must have, at all times, the necessary professional honesty and the appropriate expertise in the performance of their duties, particularly in view of the granting of the credit contracts referred to in Article VII. 160, § 3.
§ 2. The effective direction of lenders must be entrusted to at least two physical persons.
§ 3. The members of the legal lender administration body and the persons who are responsible for the effective management, if any the members of the steering committee, cannot be found in one of the cases referred to in section 19 of the Act of 22 March 1993.
When FSMA is to decide on the professional honesty and appropriate expertise of a person who is first proposed to a function referred to in this paragraph in a financial enterprise controlled by FSMA in accordance with Article 45, § 1er, 2°, from the law of 2 August 2002, FSMA consults the Bank beforehand. The Bank shall notify FSMA within one week of receipt of the notice request.
Art. VII. 165. § 1er. The lenders have an organization that allows them to comply at any time with the legal and regulatory obligations that are applicable to them under this book and the orders and regulations made for its execution.
In particular, they set up an organization to ensure compliance by their related agents and by their employees and sub-agents with the legal and regulatory obligations that are applicable to them under this Book and the regulations and regulations made for its implementation, including the applicable provisions on professional knowledge.
They have an accounting to provide the information required by statistical regulations.
Mortgage lenders hold appropriate records on the types of real property accepted as collateral, as well as on the policy of accepting mortgage applications.
§ 2. The central administration of lenders must be established in Belgium.
Sub-section 2. - Exercise conditions
Art. VII. 166. § 1er Subject to the following provisions, the conditions of accreditation are met on an ongoing basis during the exercise of the activity.
§ 2. Lenders may not use a credit intermediary that is not registered in accordance with the provisions of this chapter.
However, if they appeal to a non-registered credit intermediary, they are civilly responsible for the actions of the intermediary in credit.
§ 3. If lenders are aware of elements that may question compliance with the terms and conditions of registration set out in this chapter in the head of a credit intermediary to which they appeal or appeal, they shall promptly communicate these elements to the MSDS.
They also inform FSMA if they are aware that someone appears as a credit intermediary without being registered in the registry provided for in this book.
§ 4. The lenders adhere to an extra-judicial regulation of consumer disputes, as referred to in Article VII.216, contribute to the financing of this regulation, and respond to any requests for information that would be addressed to them in the course of handling complaints through this regulation.
Art. VII. 167. The lender's own funds may not be less than the minimum capital amount established in accordance with Article VII.162.
In cooperative companies, reimbursement of shares may not be made if the lender would no longer comply with the provisions of the preceding paragraph.
Art. VII. 168. § 1er. Without prejudice to the application of the Act of 2 May 2007 relating to the advertisement of significant participations in issuers whose shares are admitted to the negotiation on a regulated market and bearing various provisions, any natural or legal person acting alone or in concert with others, who proposes either to acquire, directly or indirectly, an interest in the capital of a lender, or to make, directly or indirectly, an increase of that interest in the capital of
The MSDS is empowered to request this person any useful information to enable him to assess whether it presents the qualities necessary to ensure the lender's sound and prudent management.
FSMA shall, where appropriate, consult under Article VII. 163, § 2.
§ 2. Within two months of the receipt of a complete file, the ADMSP may object to the completion of the acquisition if it has reasonable grounds to consider that the recipient candidate does not have the qualities necessary to ensure a sound and prudent management of the lender.
§ 3. Where the ADM has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, at least 20% of the share in the capital of a lender or exercising the control of the lender is likely to compromise its sound and prudent management, and without prejudice to the other measures provided for in this chapter, it may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; FSMA may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
In the absence of an assignment within the specified time limit, the MSDS may order the sequester of the rights of associates to any institution or person it determines. The receiver informs the lender who accordingly amends the register of shares or shares of nominative partners and who only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of a healthy and prudent management of the lender and in that of the holder of the rights of associates who have been the subject of the receiver. He exercises all rights attached to the shares or shares of partners. The amount paid by the holder for the dividend or any other title shall only be paid by him if the holder has satisfied the injunction referred to in paragraph 1erTwo. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The sequester shall be paid by FSMA and shall be paid by the holder mentioned above. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
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 expiry of the time limit set in accordance with paragraph 1er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1er, 1°, 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. VII. 169. The lenders priorly inform the FSMA of the proposal to appoint members of the legal board of directors and members of the steering committee or, in the absence of a steering committee, persons responsible for effective management.
As part of the information required under paragraph 1er, lenders shall communicate to the FSMA all documents and information to enable it to assess whether the persons whose appointment is proposed have the necessary professional honourability and expertise to perform their duties in accordance with Article VII. 164, § 1erParagraph 2.
Paragraph 1er 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.
Appointment of persons referred to in paragraph 1er is subject to prior approval by the MSDS.
When it comes to the appointment of a person who is first proposed to a function referred to in paragraph 1er in a financial enterprise controlled by FSMA pursuant to Article 45, § 1er, 2°, from the law of 2 August 2002, FSMA consults the Bank beforehand. The Bank shall notify FSMA within one week of receipt of the notice request.
The lenders inform FSMA of the possible division of tasks between the members of the legal body of administration and the persons responsible for the effective management, as well as the significant changes in this division of duties.
Significant changes in the allocation of tasks referred to in the preceding paragraph are reflected in the application of paragraphs 1 to 4.
Art. VII. 170. The opening by the lender of branches and subsidiaries abroad carrying on lender activity is subject to the prior authorization of the MSDS.
FSMA can only oppose the project if it is of the opinion that the project will have a negative impact on the lender's organization or control.
Art. VII.171. Each lender is required to pay compensation to the ADMSP in respect of control costs. The amount of such remuneration, the cases in which it is due, and the time limits in which it must be paid, shall be determined by the King pursuant to section 56 of the Act of 2 August 2002.
Art. VII. 172. The FSMA publishes on its website a list of lenders regularly updated, as well as the history of changes in the past 12 months. This list is subdivided as follows:
List of mortgage lenders
1° Chartered Belgian mortgage lenders:
a. Credit institutions;
b. Insurance companies;
c. Electronic currency establishments;
d. Payment institutions;
e. (Article VII.3, § 4, 2°)
f. Other lenders.
2° Chartered foreign mortgage lenders:
a. Credit institutions under the right of non-member states of the European Economic Area;
b. Insurance companies;
c. Electronic currency establishments under the law of other European Economic Area member states;
d. Payment institutions under the law of other European Economic Area member states;
e. E-currences under the law of non-member states of the European Economic Area and approved as such in Belgium;
f. Other foreign mortgage lenders.
3° Registered foreign mortgage lenders:
a. Credit institutions under the law of other European Economic Area member states;
b. Financial institutions under the law of other Member States of the European Economic Area subsidiaries of credit institutions under the law of other Member States of the European Economic Area (Article 78 of the Act of 22 March 1993).
List of consumer lenders
1° Loans in credit for the consumption of Belgian law:
a. Credit institutions;
b. Electronic currency establishments;
c. Payment institutions;
d. (Article VII.3, § 4, 2°)
e. Other lenders.
2° Authorized foreign law lenders:
a. Credit institutions under the right of non-member states of the European Economic Area;
b. Electronic currency establishments under the law of other European Economic Area member states;
c. Other lenders on credit for foreign law consumption.
3° Registered foreign law lenders:
a. Credit institutions under the law of other European Economic Area member states;
b. Electronic currency establishments under the law of other European Economic Area member states;
c. Payment institutions under the law of other European Economic Area member states;
d. Financial institutions under the law of other Member States of the European Economic Area subsidiaries of credit institutions under the law of other Member States of the European Economic Area (Article 78 of the Act of 22 March 1993).
The list published by FSMA indicates for each consumer credit lender, by reference to Article VII.160, § 3, the type of credit granted.
Art. VII. 173. Articles VII. 161 to VII. 164, and VII. 167 to VII. 169 are not applicable to lenders who are carried either as credit institutions on the list provided for in section 13 of the Act of 22 March 1993, or as insurance companies on the list provided for in section 4 of the Act of 9 July 1975 relating to the control of insurance companies, or as an electronic currency on the list provided for in section 64 of the Act of 21 December 2009, or as payment institutions on the list referred to in the Act.
Section 3. - Foreign law lenders
Sub-section 1re. - Certain regulated financial enterprises under the law of another Member State
Art. VII. 174. § 1er. Credit institutions, financial institutions referred to in section 78 of the Act of 22 March 1993, electronic currency institutions, and payment institutions under the right of another Member State, which are empowered under their national law to grant consumer credit contracts in their Member State of origin, may, by way of establishment of branches or within the framework of the free provision of services, exercise the activity of lender in credit to Belgium without
Credit institutions and financial institutions referred to in section 78 of the Act of 22 March 1993 which are authorized under their national right to grant mortgage agreements in their Member State of origin, may, by way of establishment of branches or in the framework of the free provision of services, exercise the activity of lender in mortgage credit in Belgium, without prior approval by the MSDS.
§ 2. As soon as, in accordance with the applicable provisions, the Bank is informed by the competent authority of the member State of origin of the establishment that the institution envisages the conclusion in Belgium of credit contracts, it shall notify the MSDS, and shall transmit to it the material information that has been communicated to it by the competent authority of the Member State of origin.
§ 3. FSMA informs the institution concerned of the legal and regulatory provisions of Belgium which, to its knowledge and after consultation with the SPF Economie, are of general interest, and informs it of the obligation to submit to SPF Economie the models of mortgage credit or consumer credits that the establishment intends to use in Belgium. The general interest provisions referred to in this paragraph are published on the FSMA website.
To this end, the institution concerned submits the models of credit contract envisaged to the prior agreement of the SPF Economy. The SPF Economie examines whether the contract models are in conformity with all the provisions of general interest in this book and Book VI, and their enforcement orders. The models are completed to allow, inter alia, verification of the overall actual annual rate. The SPF Economie shall provide the MSDS with a copy of its response to the applicant.
Any modification of contract models shall be subject to the same procedure.
§ 4. If the contract templates take the agreement of the SPF Economy, the FSMA shall register the establishment as a lender and notify the establishment of it, a copy of the notification shall be sent to the Bank.
§ 5. Failing a notification within two months of the communication referred to in § 3, paragraph 1er, the establishment can start the advertised activities, with a notice given to FSMA and SPF Economy.
§ 6. If the SPF Economy does not sign its agreement on contract models, the FSMA will notify the establishment.
If the establishment fails to take this notification into account, FSMA may prohibit the establishment from exercising in Belgium a lender activity and, where applicable, a credit intermediary. This decision is notified to the establishment by registered letter to the position, with a copy of it sent to the Bank and the SPF Economy.
Art. VII. 175. Articles VII. 165, § 1erand VII. 166, §§ 2 to 4, are applicable to the establishments referred to in this subsection.
The establishments referred to in this subsection with a branch in Belgium are subject to Article VII. 180, § 2, and VII.184, § 1erParagraph 2.
Sub-section 2. - Other foreign lenders
Art. VII. 176. § 1er. This subsection applies to foreign corporations other than those referred to in subsection 1.
Companies referred to in this subsection that fall under the law of a third State may not exercise lender activity in Belgium without being established.
§ 2. Sections 1 and 2 and Articles VII. 180, § 2, and VII. 184, § 1er, paragraph 2, shall apply to lenders referred to in this subsection, with the exception of section 165, § 2 which does not apply to lenders who fall under the law of other Member States of the European Economic Area and who exercise their lender activity in Belgium as part of the free provision of services.
Articles VII. 164 and VII. 169 apply to their effective direction in Belgium, Article VII. 165, § 1er, means for their Belgian establishment, and article VII. 165, § 2, means for their operations carried out in Belgian territory.
Article VII. 170 is not applicable to foreign affiliate branches.
§ 3. Articles VII. 161 to VII. 164, and VII. 167 to VII. 169 are not applicable to lenders referred to in this subsection who are carried either as branches of credit establishments on the list provided for in section 13 of the Act of March 22, 1993, or as branches of insurance companies on the lists provided for in sections 4 and 66 of the Act of July 9, 1975 relating to the control of insurance companies, or as branches of electronic currency establishments on the lists provided for in sections 64
Section 4. - Credit intermediaries
Art. VII. 177. Credit intermediaries are divided into two categories:
1st mortgage intermediaries;
2° intermediaries in consumer credit.
Through "Money Credit" means credit intermediaries active in the mortgage sector.
"Intermediate credit to consumption" means credit intermediaries active in the consumer credit sector.
Art. VII. 178. Any credit intermediary constituted in the form of a legal entity of Belgian law must have its central administration in Belgium.
Any natural person of Belgian nationality exercising a credit intermediary activity must have its central administration in Belgium.
Art. VII. 179. Each credit intermediary is required to pay the ADMSP in respect of control fees. The amount of such remuneration, the cases in which it is due, and the time limits in which it must be paid, shall be determined by the King pursuant to section 56 of the Act of 2 August 2002.
Section 5. - Mortgage credit intermediaries
Sub-section 1re. - General provisions
Art. VII. 180. § 1er. No intermediary in mortgages whose Belgium is the Member State of origin cannot exercise the intermediary activity in mortgage credit, if it is previously registered in the register held for this purpose by FSMA.
No mortgage intermediary having as a Member State of origin a country other than Belgium may exercise in Belgium the intermediation activity in mortgage credit, if it is previously registered as a mortgage intermediary by the competent authority of its Member State of origin.
No mortgage broker with his or her home or head office in a non-member country of the European Economic Area may exercise in Belgium the intermediation activity on mortgage credit, if he or she is not previously registered with the FSMA Mortgage Credit Intermediaries Register.
§ 2. However, mortgage lenders who are regularly licensed or registered in accordance with this chapter are authorized to operate a mortgage-free intermediary, provided that they comply with the following conditions:
1° to designate one or more distribution officials according to the rules set out in § 5 of this article;
2° These distribution officials shall meet the same conditions for professional knowledge, fitness and professional honesty as those applicable to those responsible for the distribution of mortgage intermediaries;
3° other persons employed by the lender who, in any way, are in contact with the public within the meaning of Article I.9, 79°, of the Economic Law Code, must meet the same conditions for professional knowledge as those applicable to persons in contact with the public employed by intermediaries in mortgage credit;
4° be subject to professional civil liability insurance, covering the entire territory of the European Economic Area. The insurance contract contains a provision that requires the insurance company, when terminated, to notify the MSDS. The King, on the advice of FSMA, sets out the conditions of this insurance.
The lenders concerned shall periodically report to the MSDS on the performance of the provision referred to in points 1 and 2 of the preceding paragraph, by providing the MSDS with a nominative list of distribution officials, as well as the statement of any subsequent amendments to this list. They respond to the professional knowledge of the persons referred to in 2° and 3° of the preceding paragraph. They keep the documents proving the professional knowledge of these people and make them available to FSMA.
§ 3. No person may apply the mortgage credit intermediary or subdivision to indicate the intermediary activity under this section, if the intermediary activity is not previously registered in the registry held for that purpose by the MSDS.
§ 4. Mortgage intermediaries are subdivided as follows:
1° credit brokers;
2° related agents;
3° sub-agents.
§ 5. Mortgage credit intermediaries designate one or more natural persons to be responsible for the distribution. Their number is adapted to the organization and activities of the intermediary. The King can fix this number.
Mortgage credit intermediaries periodically report to the FSMA on the implementation of the previous paragraph, by providing the FSMA with a nominal list of distribution officials, as well as any subsequent amendments to this list. They keep the documents proving the professional knowledge of distribution officials and people in contact with the public and make them available to FSMA.
Sub-section 2. - Registration conditions
Art. VII. 181. § 1er. In order to be registered in the Mortgage Credit Intermediaries Register, and to be able to maintain the registration, the applicant must meet the following conditions:
1° the intermediary, distribution officials and persons in contact with the public, have the professional knowledge determined by the King;
2° the intermediary and distribution officials have sufficient professional ability and honorability to perform their tasks. They may not be found in any of the cases referred to in section 19 of the Act of 22 March 1993, nor have they been declared bankrupt, unless they have been rehabilitated. For the purposes of this article, the bankrupt is considered to be, the directors and managers of a business corporation declared bankruptcy, whose resignation has not appeared in the annexes of the Belgian Monitor at least one year before the bankruptcy declaration and any person who, without being a director or manager, has effectively held the power to manage the company declared bankruptcy;
3° be subject to professional civil liability insurance, covering the entire territory of the European Economic Area. The insurance contract contains a provision that requires the insurance company, when terminated, to notify the MSDS. The King, on the advice of FSMA, sets out the conditions of this insurance. However, it is exempted from this obligation to ensure their professional responsibility, related agents and sub-agents to the extent that lenders or intermediaries on whose behalf they act, unconditionally assume this responsibility;
4° in respect of their intermediary activity on mortgage credit in Belgium, only deal with companies or persons who, pursuant to this chapter, are registered or registered for the exercise of this activity in Belgium;
5° adhering to a non-judicial regulation of consumer disputes as referred to in Article VII.216, contributing to the financing of this regulation, and responding to any requests for information that would be addressed to it in the course of handling complaints through this regulation;
6° pay the remuneration due to the MSDS for the exercise of control;
7° communicate to FSMA a professional e-mail address to which FSMA has the ability to validly address all communications, whether individual or collective, that it operates in accordance with this chapter.
Mortgage credit intermediaries and, in the case referred to in § 5, the central agency shall demonstrate to the FSMA, in accordance with the rules specified by the latter by regulation, including in respect of periodicity, compliance with the provisions provided for in paragraph 1er.
§ 2. In addition, if a legal entity seeks to register as an intermediary, the following provisions apply:
1st the members of the legal body of administration of this legal entity must possess the professional knowledge determined by the King, as well as the professional ability and honorability sufficient to carry out their duties. They may not be found in any of the cases referred to in section 19 of the Act of 22 March 1993, nor have they been declared bankrupt, unless they have been rehabilitated. For the purposes of this article, the bankrupt is considered to be, the directors and managers of a business corporation declared bankruptcy, whose resignation has not appeared in the annexes of the Belgian Monitor at least one year before the bankruptcy declaration and any person who, without being a director or manager, has effectively held the power to manage the company declared bankruptcy;
2° the corporation communicates to the MSDS the identity of the shareholders holding control of the corporation; these shareholders must, in the FSMA's judgment, present the qualities necessary to ensure sound and prudent management. Any change in the identity of shareholders holding the control is communicated to the MSDS.
§ 3. The applicant for a registration as a mortgage broker attached to his application for registration a statement on the honour of which it appears that he carries out his business activities outside of any exclusive agency contract or any other legal undertaking requiring him to place all or a specified part of his production with a lender or several lenders belonging to the same group.
Any modification to the data on which the declaration relates to the honour referred to in paragraph 1er is communicated promptly to FSMA.
§ 4. The applicant for a registration as a sub-agent shall establish in his registration file that he or she carries out his or her activity on behalf of and under the full and unconditional responsibility of a single mortgage intermediary.
§ 5. Without prejudice to the preceding paragraphs, a number of candidates may apply for collective registration if compliance with their obligations under this section is verified by a central agency. This central agency must be a mortgage lender. In this case, the application for registration is filed by the central agency under its responsibility. The latter also remains responsible for the monitoring of permanent compliance with registration conditions. For the purposes of this chapter, their file is treated as a single business file. The credit intermediary that has been registered in the credit intermediaries register in accordance with this procedure shall be de-registered ex officio if the central agency requests the withdrawal of its registration.
§ 6. The related agent acts, with respect to his mortgage intermediation activity, under the full and unconditional responsibility of the mortgage lender on whose behalf he acts.
The latter monitors compliance by the related officer with the provisions of this book and the orders and regulations made pursuant to it.
§ 7. The sub-agents act, with respect to their mortgage intermediation activity, under the full and unconditional responsibility of the mortgage intermediary on whose behalf it acts, or a mortgage lender when acting on behalf of a related agent.
The credit intermediary or lender shall monitor the sub-agent's compliance with the provisions of this book and the orders and regulations made pursuant to it.
Subsection 3. - The registration procedure
Art. VII. 182. § 1er. Any application for registration is sent to the FSMA in the forms and conditions fixed by the King.
§ 2. Any changes to the data in the registration file shall be communicated immediately to the ADMSP, without prejudice to the ADMSP's right to collect information from the individual or to request evidence.
§ 3. The FSMA includes mortgage intermediaries that meet the conditions set out in subsection 2. It shall decide at the latest within two months of the receipt of a complete file and, at the latest, within four months of the introduction of the application.
§ 4. The FSMA Executive Committee may entrust to a member of the FSMA staff designated by the FSMA the notification of decisions to register or refuse to register the intermediaries in mortgage credit, as well as decisions to amend, discontinue, prohibit, suspend and de-list.
The MSDS may validly notify the decisions referred to in the preceding paragraph by means of pre-printed forms, with a signature reproduced by a mechanics process.
§ 5. The FSMA publishes on its website the updated register of mortgage intermediaries, as well as the history of changes in the past 12 months.
This register is subdivided as follows:
A. Belgian legal intermediaries
Credit brokers
Related
Sub-agents
B. Legal intermediaries of another Member State established in Belgium as a branch
C. Legal intermediaries of another Member State active in Belgium in free service delivery
D. Other foreign intermediaries
The register mentions for each mortgage intermediary:
1° the data necessary for its identification;
2° the date of registration;
3° the category in which it is registered;
4° the name of the persons responsible for the distribution;
5° for related agents: the name of mortgage lenders to whom they are linked;
6° for sub-agents: the name of intermediaries on mortgage credit under whose responsibility they operate;
7° if applicable the date of its delisting;
8° any other information that FSMA considers useful for correct public information.
FSMA determines the conditions under which the reference to the delisting of an intermediary is removed from the website.
§ 6. At the time of the application, the applicant indicates in which category of the register he wishes to be registered. An intermediary may only be registered in a single registry category.
Sub-section 4. - Freedom of establishment and free service delivery
Art. VII. 183. § 1er. Any mortgage intermediary registered in Belgium that plans to carry out activities in another Member State for the first time under the regime of freedom of establishment or free service, notify FSMA in advance. The register indicates in which Member States the intermediary operates under freedom of establishment or free service.
In the month of notification, FSMA informs the competent authority of the host Member State of this intention and communicates this notification to the intermediary concerned.
FSMA also notify the competent authorities of the host Member States concerned of the lender(s) to which the mortgage intermediary is bound, and it indicates whether the lender assumes full and unconditional responsibility for the activities of that intermediary.
FSMA is competent to verify the professional knowledge of distribution officials and persons in contact with the public of mortgage intermediaries referred to in this paragraph and who are active in the free provision of services in other European Economic Area Member States than Belgium.
When an intermediary referred to in this paragraph is removed from the registry by FSMA, the latter shall inform the authorities of the host Member States concerned within 14 days.
§ 2. The mortgage loan intermediary authorized in that capacity in a Member State other than Belgium may begin its activities in Belgium, either under the regime of freedom of establishment or under that of free service, after having notified the competent authority of its Member State of origin, and after that authority has notified the FSMA in accordance with the provision of European law in this matter. FSMA publishes the list of these intermediaries on its website and ensures its regular update on the basis of the data available to it.
§ 3. FSMA informs the intermediary concerned of the Belgian legal and regulatory provisions which, to its knowledge and after consultation with the SPF Economy, are of general interest. The general interest provisions referred to in this paragraph are published on the FSMA website.
§ 4. The intermediary concerned may commence his activity one month after the date on which he was informed by the competent authorities of the Member State of origin of the notification referred to in § 2.
§ 5. Intermediaries referred to in § 2 and established in Belgium under the guise of freedom of establishment must comply with the following conditions:
1° to designate one or more distribution officials according to the rules set out in Article VII. 180, § 5;
2° these distribution officials shall meet the same conditions in terms of professional knowledge, fitness and professional honesty as those applicable to the distribution of intermediaries on Belgian mortgage credit;
3° the other persons employed by the intermediary who, in any way, are in contact with the public within the meaning of article I.9, 81°, meet the same conditions of professional knowledge as those applicable to persons in contact with the public employed by the intermediaries in Belgian mortgage credit.
§ 6. Competent foreign authorities for the control of mortgage intermediaries who have established a branch in Belgium may, with prior notice given to FSMA, conduct on-site inspections in this branch.
Section 6. - Intermediaries on consumer credit
Sub-section 1re. - General provisions
Art. VII. 184. § 1er. No one can exercise in Belgium the intermediary activity on consumer credit, if it is previously registered in the register held for that purpose by FSMA.
However, consumer credit lenders who are regularly registered or registered are allowed to exercise consumer credit intermediary activity without registration, provided that they comply with the following conditions:
1° to designate one or more distribution officials according to the rules set out in Article VII.185, § 2;
2° distribution officials shall meet the same conditions for professional knowledge, fitness and professional honesty as those applicable to the distribution of intermediaries on consumer credit;
3° the other persons employed by the lender who, in any way, are in contact with the public within the meaning of article I.9, 79°, meet the same conditions for professional knowledge as those applicable to persons in contact with the public employed by intermediaries in consumer credit;
4° be subject to professional civil liability insurance, covering the entire territory of the European Economic Area. The insurance contract contains a provision that requires the insurance company, when terminated, to notify the MSDS. The King, on the advice of FSMA, sets out the conditions of this insurance.
The lenders concerned shall periodically report to the MSDS on the performance of the provision referred to in points 1 and 2 of the preceding paragraph, by providing the MSDS with a nominative list of distribution officials, as well as the statement of any subsequent amendments to this list. They respond to the professional knowledge of the persons referred to in 2° and 3° of the preceding paragraph. They keep the documents proving the professional knowledge of these people and make them available to FSMA.
§ 2. No person shall be entitled to credit or any of his or her subdivisions to indicate the intermediary activity on consumer credit referred to in this chapter if he or she is not previously registered in the register held for that purpose by the MSDS.
Art. VII.185. § 1er. Consumer credit intermediaries are divided into:
1° credit brokers;
2° related agents;
3° agents as an accessory.
§ 2. Consumption credit intermediaries refer to one or more natural persons as responsible for the distribution. Their number is adapted to the organization and activities of the intermediary. The King can fix this number.
Consumer credit intermediaries periodically report to the FSMA on the implementation of the previous paragraph, by providing the FSMA with a nominal list of distribution officials, as well as the statement of any subsequent amendments to this list. They keep the documents proving the professional knowledge of distribution officials and people in contact with the public, and keep them available to FSMA.
Sub-section 2. - Registration conditions
Art. VII. 186. § 1er. In order to be registered in the Consumer Credit Intermediaries Register, and in order to be able to maintain the registration, the applicant for registration as a related broker or agent must meet the following conditions:
1° the intermediary, distribution officials and persons in contact with the public, possess professional knowledge determined by the King;
2° the intermediary and distribution officials have sufficient professional ability and honorability to perform their tasks. They cannot be found in any of the cases referred to in section 19 of the Act of 22 March 1993;
3° be subject to professional civil liability insurance, covering the entire territory of the European Economic Area. The insurance contract contains a provision that requires the insurance company, when terminated, to notify the MSDS. The King, on the advice of FSMA, sets out the conditions of this insurance. However, it is exempted from this obligation to ensure their professional responsibility, as the lenders or intermediaries on whose behalf they act, assume this responsibility unconditionally;
4° with respect to their consumer credit intermediary activity in Belgium, only with companies or persons who, pursuant to this chapter, are registered or registered for the exercise of this activity in Belgium;
5° adhering to a non-judicial regulation of consumer disputes as referred to in Article VII.216, contributing to the financing of this regulation, and responding to any requests for information that would be addressed to it in the course of handling complaints through this regulation;
6° pay the remuneration due to the MSDS for the exercise of control;
7° communicate to FSMA a professional e-mail address to which FSMA has the ability to validly address all communications, whether individual or collective, that it operates in accordance with this chapter.
The intermediaries referred to in this section and, in the case referred to in § 4, the central agency shall demonstrate to the FSMA, in accordance with the rules specified by the latter by regulation, including in respect of periodicity, compliance with the provisions provided for in paragraph 1er.
§ 2. In addition, if a legal entity seeks to register as an intermediary, the following provisions apply:
1° the persons to whom the effective management of this legal person is entrusted shall have the professional knowledge determined by the King, as well as the professional ability and honourability sufficient to perform their duties. They cannot be found in any of the cases referred to in section 19 of the Act of 22 March 1993;
2° the corporation communicates to the MSDS the identity of the shareholders holding control of the corporation; these shareholders must, in the FSMA's judgment, present the qualities necessary to ensure sound and prudent management. Any change in the identity of shareholders holding the control is communicated to the MSDS.
§ 3. The applicant for registration as a consumer credit broker attached to his application for registration a statement on the honour of which it appears that he carries out his business activities outside of any exclusive agency contract or any other legal undertaking requiring him to place all or a specified part of his production with a lender or several lenders belonging to the same group.
Any modification to the data on which the declaration relates to the honour referred to in paragraph 1er is communicated promptly to FSMA.
§ 4. Without prejudice to the preceding paragraphs, a number of candidates may apply for collective registration if compliance with their obligations under this section is verified by a central agency. This central agency must be a consumer lender. In this case, the application for registration is filed by the central agency under its responsibility. The latter also remains responsible for the monitoring of permanent compliance with registration conditions. For the purposes of this chapter, their file is treated as a single business file. The credit intermediary that has been registered in the Register of Consumer Credit Intermediaries in accordance with this procedure shall be de-registered ex officio if the central agency requests the withdrawal of its registration.
§ 5. The related agent acts, with respect to its consumer credit intermediation activity, under the full and unconditional responsibility of a consumer credit lender. The latter monitors compliance by the officer with the provisions of this book and the orders and regulations made for the execution of the book.
Art. VII. 187. § 1er. In order to be registered in the Consumer Credit Intermediaries Register, and in order to be able to retain the registration, the applicant must meet the following conditions:
1st distribution officials and persons in contact with the public, possess professional knowledge determined by the King;
2° distribution officials have sufficient professional ability and honorability to perform their tasks. They cannot be found in any of the cases referred to in section 19 of the Act of 22 March 1993;
3° be subject to professional civil liability insurance, covering the entire territory of the European Economic Area. The insurance contract contains a provision that requires the insurance company, when terminated, to notify the MSDS. The King shall, on the advice of FSMA, establish the conditions of this insurance;
4° with respect to their consumer credit intermediary activity in Belgium, only with companies or persons who, pursuant to this chapter, are registered or registered for the exercise of this activity in Belgium;
5° adhering to a non-judicial regulation of consumer disputes as referred to in Article VII.216, contributing to the financing of this regulation, and responding to any requests for information that would be addressed to it in the course of handling complaints through this regulation;
6° pay the remuneration due to the MSDS for the exercise of control;
7° communicate to FSMA a professional e-mail address to which FSMA has the ability to validly address all communications, whether individual or collective, that it operates in accordance with this chapter.
§ 2. The intermediaries referred to in this section shall demonstrate to the MSDS, in accordance with the rules specified by the latter by regulation, including in respect of periodicity, compliance with the provisions provided for in paragraph 1er.
Subsection 3. - The registration procedure
Art. VII. 188. § 1er. Any application for registration is sent to the FSMA in the forms and conditions fixed by the King.
§ 2. Any changes to the data in the registration file shall be communicated immediately to the ADMSP, without prejudice to the ADMSP's right to collect information from the individual or to request evidence.
§ 3. FSMA includes consumer credit intermediaries that meet the conditions set out in subsection 2. It shall decide at the latest within two months of the receipt of a complete file and, at the latest, within four months of the introduction of the application.
§ 4. The FSMA Executive Committee may entrust to a member of the FSMA staff designated by the FSMA the notification of decisions to register or refuse to register intermediaries on consumer credit, as well as decisions to amend, discontinue, prohibit, suspend and de-list.
The MSDS may validly notify the decisions referred to in the preceding paragraph by means of pre-printed forms, with a signature reproduced by a mechanics process.
§ 5. FSMA publishes on its website the current register of consumer credit intermediaries, as well as the history of the changes that have occurred in the past 12 months.
This register is subdivided as follows:
1° credit brokers
2° related agents
3° accessory agents
The register mentions for each consumer credit intermediary the data necessary for its identification, the date of its registration, the category in which it is registered, if any, the date of its deletion, and any other information that the MSDS considers useful for correct public information. FSMA determines the conditions under which the reference to the delisting of an intermediary is removed from the website.
The register of credit intermediaries as at 31 December of each year is published in the Belgian Monitor by the FSMA.
§ 6. At the time of the application, the applicant indicates in which category of the register he wishes to be registered. An intermediary may only be registered in a single registry category.
PART 5. - Civil sanctions
CHAPTER 1er. - Payment services
Art. VII. 189. Unless it proves that the payer has acted fraudulently, the payment service provider remains responsible for the user of payment services, for all the consequences resulting from the use of a payment instrument by an unauthorised third party in the event of non-compliance by the payment service provider with the obligations it has under sections VII. 13, 5°, (a) and (c) and VII. 31, 1° and 3°.
Art. VII. 190. In the event of non-compliance by the payment service provider with the obligations arising from Article VII. 55, § 1er and without prejudice to the sanctions of common law, the user of payment services is exempted from the payment of the fees requested.
Art. VII. 191. In the event of non-compliance by the payment service provider with the obligations arising from Articles VII. 12, VII. 13, 2° to 6°, VII. 14 and VII. 15, VII. 20, VII. 22, paragraph 2, VII. 24, VII. 28, VII. 31, VII. 35, paragraph 1er, VII. 37, VII. 38, § 2, VII. 39 and VII. 40, VII. 42, VII. 44 to VII.47, VII. 49 to VII. 51, VII. 55 and VII. 56, the user of payment services may, without prejudice to the sanctions of common law, by registered letter mailed and motivated, terminate without delay and without costs or penalties the framework contract from the time he or she is aware of or should have known of the non-compliance.
Art. VII.192. In the event of non-compliance by the electronic currency issuer with the obligations arising from Article VII. 61 and without prejudice to the sanctions of common law:
1° the electronic currency holder shall be exempted from the payment of any costs related to the refund;
2° the electronic currency holder may terminate without delay and without charge or penalty, by registered letter to the post and motivated, the electronic currency contract and, if applicable, the framework contract for payment services, from the time when he or she is aware of or should have known of the non-compliance with these obligations.
Art. VII. 193. Where the payment service provider fails to comply with or, where applicable, does not guarantee compliance with the information requirements referred to in section 5 (2) and (3) of Regulation (EU) No. 260/2012, necessary for the correct execution of a payment transaction, the payment service user may request, without prejudice to the sanctions of common law, the application of compensation measures for damage caused by non-compliance with obligations.
The payment service provider is responsible to the payer for the consequences of the execution of a payment transaction contrary to the instructions of the payer given in accordance with Article 5 (3) (d) of Regulation (EU) No 260/2012. He soon restored the debited payment account in the situation that would have prevailed if the above instructions had been followed. Similarly, the payer is entitled to additional compensation for other possible financial consequences.
Where a beneficiary, who is not a consumer, fails to comply with or, where appropriate, does not guarantee compliance with the information requirements referred to in Article 5 (4) of Regulation (EU) No. 260/2012, necessary for the correct execution of a payment transaction, the user of payment services may request, without prejudice to the sanctions of common law, the application of compensation measures for damages due to non-compliance.
CHAPTER 2. - Credit to consumption
Art. VII. 194. Without prejudice to the sanctions of common law, the judge cancels the contract or reduces the obligations of the consumer to the maximum of the price of the property or service in the cash or the amount borrowed, retaining in this case the benefit of the scheduling of the payments, when the credit contract was concluded following a method of illicit sale referred to in Article VII. 67.
Art. VII. 195. Without prejudice to common law sanctions, the judge cancels the contract or reduces the consumer's obligations to a maximum of the cash or amount borrowed, where the lender does not comply with the provisions of Article VII. 78, § 1er§ 2, § 2, 5° to 9°, § 3, 1° to 7°, 11°, 13° and 14°.
The judge may take a similar action when the lender:
1° does not respect the references referred to in Article VII. 78, § 2, 1° to 4°, § 3, 8° to 10°, 12° and 15°;
2° did not comply with the obligations referred to in Article VII. 77, § 1erParagraph 2.
The judge reduces the obligations of the person who constitutes a security right to the maximum price at the cash or amount borrowed, where the lender does not comply with the provisions of Article VII. 109.
In the event of a reduction in consumer bonds, the consumer retains the benefit of the scheduling.
Art. VII. 196. The obligations of the consumer are reduced in full-right terms to the cash of the property or service, or to the amount borrowed when:
1° the lender has made a credit contract at a higher rate than that fixed by the King under Article VII. 94;
2° the lender did not comply with or breach the provisions of Article VII. 95;
3° the assignment of the contract or the assignment or subrogation of rights arising out of a credit contract took place in disregard of the conditions laid down in Article VII. 102;
4° a credit contract was concluded:
(a) by an unregistered or unregistered lender in accordance with the legal or regulatory provisions applicable at the time of the grant of the credit;
(b) by a lender who had previously renounced the registration or approval;
(c) through an unregistered credit intermediary in accordance with the legal or regulatory provisions applicable at the time of the granting of the credit;
(d) by a lender whose approval or registration had been previously terminated, revoked or suspended or who had incurred a prohibition under section XV.67/3;
(e) through a credit intermediary whose registration had been previously terminated or suspended or that had incurred a prohibition under section XV.68;
5° the lender did not comply with or breach the provisions of Articles VII. 87.
Paragraph 1er is not applicable where the lender concerned is a credit institution, an electronic currency institution, or a payment institution under the right of another EEA member State, or a financial institution referred to in Article 78 of the Act of 22 March 1993 which is authorized under its national right to grant credit contracts to consumption in its Member State of origin, and which carries out its activities in Belgium through the free directive of the service
In these cases the consumer retains the benefit of the payment schedule.
Art. VII. 197. The consumer may require the refund of the amounts he paid, increased by the amount of legal interests, when a payment took place despite the prohibition under Articles VII. 79, VII. 90 and VII. 114, § 1er, or took place as part of a debt mediation operation prohibited in Article VII. 115.
Art. VII. 198. Where, despite the prohibition referred to in Article VII. 90, § 1erParagraph 1er, the lender or credit intermediary shall pay an amount or make a delivery of a property or service, the consumer shall not be required to return the amount paid, pay the service or the property delivered or return it.
Art. VII. 199. Where penalties or damages not provided for in this book are claimed to the consumer or to the person who constitutes a security right, the consumer is fully relieved of the security right.
In addition, if the judge considers that the penalties or damages agreed to or applied, in particular in the form of a criminal clause, in the event of non-performance of the agreement, are excessive or unjustified, the judge may, ex officio, reduce or raise the consumer entirely.
Art. VII. 200. In case of non-compliance with the provisions referred to in article VII. 106, § 4, VII. 86, paragraphs 2 to 4, and VII. 99, the consumer is raised in full interest and expenses relating to the period on which the offence is committed.
If notwithstanding, the prohibition in Article VII. 87, § 3, the consumer has made the replenishment of the capital of the credit, it may require the immediate repayment of the replenished capital, including the acquired interest or the repayment of the credit, up to the replenished capital, including the acquired interest.
Art. VII. 201. Without prejudice to other common law sanctions, the judge may raise the consumer with all or part of the late interest and reduce its obligations to the cash of the property or service, or the amount borrowed when:
1° the lender failed to comply with the obligations under Articles VII. 69, VII. 70, VII. 72, VII. 74, VII. 75 and VII. 77;
2° the credit intermediary failed to comply with the obligations under Articles VII. 69, § 1erParagraph 1er, VII. 70, VII. 71, VII. 74, VII. 75 in VII. 112;
3° the formalities provided for in Article VII. 76 concerning the conclusion of the credit contract were not respected.
In these cases the consumer retains the benefit of the payment schedule.
Art. VII. 202. The consumer is relieved of interest for the portion of the payments made prior to the delivery of the property or the delivery of the service, in violation of section VII. 91, paragraphs 1er and 4.
Art. VII. 203. Failure to comply with Article VII. 84, paragraph 1er, grants the consumer the right to request the cancellation of the contract of sale or service benefit and to require the seller or service provider to refund the payments that he has already made.
Art. VII. 204. When the consumer failed to disclose the information referred to in Article VII. 69 or provided false information, the judge may, without prejudice to common law sanctions, order the resolution of the contract to the consumer's wrongs.
Art. VII. 205. Whoever, in violation of Article VII. 88, signs a currency letter or promissory note or accepts a cheque in payment or as a guarantee of the total or partial refund of the amount of the money, is required to reimburse the consumer the total cost of the credit for the consumer.
Art. VII. 206. The person who constitutes a security right shall be discharged from any obligation if the person has not previously received a copy of the credit contract in accordance with Article VII. 109, § 1er.
Art. VII. 207. The resumption of tangible property in contravention of the provisions of Article VII. 108 results in the resolution of the credit contract. The lender is required to repay all amounts paid in arrears on the thirty days.
Art. VII. 208. No commission shall be payable when the credit contract is resolved, terminated or terminated and the credit intermediary has not complied with the provisions of Article VII. 114.
CHAPTER 3. - Mortgage credit
Art. VII. 209. § 1er. If the lender does not comply with the obligations or prohibitions contained in Title 4, Chapter 2, or in its enforcement orders, the consumer may reimburse the credit at any time and without any compensation. If the consumer makes use of this right and it is not possible to determine the debtor rate because the constitutive act does not indicate the necessary elements, the accrued interest is calculated at the legal rate.
The previous paragraph does not apply where the lender proves that the non-compliance is not harmful to the consumer.
§ 2. The right referred to in paragraph 1er does not prejudice the other rights and remedies that the consumer can claim.
§ 3. Without prejudice to the sanctions of common law, the borrower's obligations are fully reduced to the amount borrowed when a credit contract has been concluded:
(a) by a lender not registered, registered or registered in accordance with the legal or regulatory provisions applicable at the time of the granting of the mortgage;
(b) by a lender who had previously renounced the registration, registration or approval;
(c) by a lender whose approval, registration or registration had been previously withdrawn, removed, revoked or suspended or who had incurred a prohibition under section XV.67/3;
(d) through an unregistered credit intermediary, or whose registration had been previously terminated or suspended or that had incurred a prohibition under section XV.68.
In these cases, the borrower retains the benefit of the term and the amount of the refund.
§ 4. Paragraph 3 does not apply:
- where the lender concerned is a credit institution under the right of another EEA Member State, or a financial institution referred to in Article 78 of the Act of 22 March 1993 which is authorized under its national law to grant mortgage credit contracts in its Member State of origin, and which operates in Belgium through the establishment of a branch or the free provision of services without the formalities imposed to that effect
- where the intermediary concerned is a mortgage intermediary referred to in Article VII. 183, § 2, and that the formalities imposed by the applicable European directives have not been complied with.
Art. VII. 210. Are null in full right:
1 the addition or annexation of a contract other than those referred to in Articles VII. 125 and VII. 126;
2° the obligation to acquire securities in violation of Article VII. 137;
3° the obligation to pay premiums or to save in violation of Article VII. 138.
Art. VII. 211. If it is not satisfied with the obligation contained in Article VII. 135, paragraph 1er, lender rights and consumer obligations are reduced to the portion of the capital actually paid in cash or scriptural currency.
Art. VII. 212. A person who signs a bill of exchange or a promissory note in the form of a mortgage credit or presents such an effect to the payment without complying with the provisions of Article VII. 139, is required to refund to the consumer the accrued interest of the credit contract.
Art. VII. 213. When, as a result of non-observance of Article VII. 140:
1° it is not possible to determine the amounts of depreciating payments, the consumer is not required to make such payments;
2° it is not possible to determine the times and conditions under which periodic charges, interest or reconstitutive payments are due, the consumer is only required to pay them on the anniversary dates of the credit.
Art. VII. 214. When, as a result of non-observance of Article VII. 140, § 2, the bonds resulting from the addition are not specified in the contract, the contract loses this character and the consumer is not bound to any replenishment.
CHAPTER 4. - Common provisions
Art. VII. 215. Upon the expiration of a period of ten days from the date of delivery, the Registrar of the Court or the Court is required to notify the Minister of any judgment or judgment which applies one or more civil or criminal sanctions.
The Registrar is also required to notify the Minister of any appeal against such a decision without delay.
PART 6. - Extrajudicial regulation of consumer disputes
Art. VII. 216. A non-judicial regulation of financial services complaints is instituted to help resolve disputes between, on the one hand, a payment service provider, a lender or credit intermediary and, on the other hand, a consumer, providing notices in this matter or acting as a mediator.
This financial services mediation service is an independent body that meets the requirements of Article XVI.25 of the Economic Law Code.
PART 7. - Final provisions
Art. VII. 217. Royal orders established under Articles VII. 3, VII. 57 to VII. 59, VII. 64, VII. 90, § 1, paragraph 3, VII. 94, VII. 95, VII. 86, § 3, paragraph 2, VII. 101 and VII. 114, § 3 of this book is submitted to the advice of the Consumption Council by the Minister. The Minister sets the time limit for the notice to be rendered. After this period, the notice is no longer required.
Art. VII.218. Without prejudice to the other formalities of consultation imposed by this book, the King shall exercise the powers conferred upon him by articles VII.118, VII.120 and VII.122 after consultation with the Privacy Commission.
The Royal Decrees under Article VII. 148, VII. 149, VII. 153 and VII. 154 are submitted by the Minister to the advice of the Consumption Council, the Privacy Commission and the Central Support Committee. The Minister sets the time limit for the notice to be rendered. After this period, the notice is no longer required.
Art. VII. 219. The King exercises the powers to Him entrusted by the provisions of Articles VII. 3, VII. 64, VII. 86, § 3, paragraph 2, VII. 90, § 1erParagraph 3, VII. 94, VII. 95, VII. 101, VII. 120 to VII. 122, on the joint proposal of Ministers who have Economy and Finance in their responsibilities, after consultation with the Bank.
Art. VII. 220. Execution orders for title 4, chapter 4, are taken on the advice of the FSMA.".
Art. 4. In Book XV, Title 1erChapter 2, of the Economic Law Code, inserts a section 2, which reads as follows:
"Section 2. - Specific research and finding of book VII offences
Sub-section 1re. - General provisions
Art. XV. 17. § 1er. With a view to the investigation and finding of offences under the provisions of Book VII and its enforcement orders, the officers referred to in Article XV. 2 have the competence to approach the company by presenting itself as potential customers or customers, without having to communicate their quality and the fact that the findings made on this occasion can be used for the exercise of surveillance. Agents referred to in Article XV. 2 who commit absolutely necessary offences are exempted from punishment.
They may exercise the skills referred to in Articles XV.3, 2° and XV.4.
The person(s) concerned with the findings cannot be provoked within the meaning of Article 30 of the preliminary title of the Code of Criminal Instruction.
This jurisdiction can only be exercised if it is necessary for the monitoring exercise to be able to see the actual circumstances valid for the usual or potential customers.
Except where the findings relate to compliance with one or more provisions of Book VII, Title 4, Chapter 4, the officers referred to in Article XV. 2 may issue a notice of warning or a report or propose an administrative penalty based, inter alia, on the findings made in accordance with the first paragraph.
If a notice of warning, a report or an administrative penalty is based, among other things, on the findings made in accordance with the first paragraph, the company shall be notified in advance of the notice or a copy of the notice of warning or of the record, or no later than one month before the commencement of the administrative sanction proceedings.
§ 2. The officers referred to in section XV. 2 are also competent to seek and determine the acts which, without being punishable, may be the subject of a cessation action formed at the initiative of the Minister. Verbatim records in this regard are held to prove the contrary.
In the performance of their duties, the agents referred to in paragraph 1er have the powers mentioned in Article XV.3, 1° to 3° and 5°.
Art. XV. 18, § 1er. When the competent officials referred to in Article XV.2 note that a payment service provider or an electronic currency issuer does not comply with one or more of the provisions of Book VII, Regulation (EC) No. 924/2009 or Articles 3 and 5 to 9 of Regulation (EU) No. 260/212, they communicate these findings to the Bank. The Bank examines whether and to what extent administrative law sanctions or other specific measures must be taken against the said provider or issuer in accordance with the specific status of the provider.
§ 2. Where the competent officials referred to in Article XV.2 find that a lender or credit intermediary does not comply with one or more provisions of Book VII, Title 4, Chapter 4, they shall communicate this information to the MSDS in order to take, where appropriate, the measures and/or impose the administrative penalties provided for in this book.
Sub-section 2. - FSMA skills
Art. XV.18/1. FSMA ensures that each lender or intermediary of credit operates in accordance with the provisions of Book VII, Title 4, Chapter 4 and the orders and regulations made pursuant to them.
To this end, FSMA may be provided with all information and documents relating to the organization, operation, situation and operations of lenders and credit intermediaries. It may also ask the central agencies to justify their compliance with their obligations under articles VII.181, paragraphs 5 and VII.186, § 4.
It may conduct on-site inspections with lenders, credit intermediaries and central agencies, and shall, without displacement, be aware of and copy of any information held by the lender or intermediary to verify compliance with the legal and regulatory provisions referred to in paragraph 1er.
Art. XV.18/2. Without prejudice to the legal provisions concerning the inviolability of the home and the protection of privacy, FSMA may conduct any investigation, including in premises where the credit intermediary operates and in the seats and agencies of the lenders concerned, in order to control the veracity of the declaration on honour referred to in Articles VII.181, § 3 and VII.186, § 3.
Art. XV.18/3. FSMA may conduct on-site audits in branches established in the European Economic Area of Intermediaries, of which it is the Member State of origin, referred to in Article VII.183, § 1er".
Art. 5. Article XV. 31, of the same Code, is supplemented by a paragraph 4, which reads as follows:
§ 4. This section is not applicable to offences under Book VII, Title 4, Chapter 4. "
Art. 6. In Book XV, Title 1er, of the same Code, it is inserted a chapter 3/1 entitled "Chapter 3/1. The procedure of injunction and confinement".
Art. 7. In Chapter 3/1, inserted by Article 6, an article 31/3 is inserted, as follows:
"Art. XV.31/3. § 1er. FSMA may direct a lender or credit intermediary to comply with the provisions of Book VII, Title 4, Chapter 4 or the orders and regulations made for its execution, within the time limit determined by FSMA.
§ 2. Without prejudice to the other measures provided for in this book or in Book VII, Title 4, Chapter 4, if the person to whom it has directed an injunction pursuant to § 1er fails to comply with the injunction upon the expiry of the time limit, the ADMSP may, the person who has been able to assert his or her defence:
1° publicize its position on the offence or failure in question. The costs of this publication are borne by the lender or credit intermediary concerned;
2° impose the payment of a breach which cannot be greater, in the case of lenders, to 5.000 euros per day of delay or, in total, by offence, to exceed 50,000 euros, and in the case of intermediaries, to 500 euros per day of delay, or in total, to exceed 25,000 euros.
§ 3. In urgent cases, FSMA may take the measure referred to in § 1er2°, without prior injunction, the person concerned was able to assert his defence.
§ 4. The breaches imposed under this section shall be recovered to the benefit of the Consolidated Revenue Fund by the Administration of Cadaster, Recording and Domains. ".
Art. 8. Article XV. 33 of the same Code is supplemented by a paragraph, which reads as follows:
"The agents referred to in Article XV.2 and the National Bank of Belgium and/or FSMA may agree, in common agreement, on the practical modalities of cooperation in the areas they determine and which fall within their respective competences. "
Art. 9. In title 1er, chapter 4, of the same Code, it is inserted a section 2/1 entitled "Section 2/1. Provision of information under Book VII, Part 4, Chapter 4".
Art. 10. In section 2/1, inserted by section 9, an article XV is inserted. 57/1, as follows:
"Art. XV. 57/1. Any information of the head of offence under the provisions of Book VII, Title 4, Chapter 4 or any of the provisions referred to in Article 19 of the Act of 22 March 1993 relating to the status and control of credit institutions, against a lender or an intermediary of credit, an effective officer or a person responsible for the distribution to a lender or an intermediary of credit, within the meaning of Book VII,
Any criminal action by the head of the offences referred to in paragraph 1er must be brought to the attention of the FSMA at the diligence of the Public Prosecutor."
Art. 11. In Book XV, Title 2, Chapter 2, of the same Code, an article XV.66 is inserted as follows:
"Art. XV. 66. Without prejudice to the measures defined by this book, by Book VII, Title 4, Chapter 4 or by other laws or regulations, FSMA may, where it finds an offence under the provisions of Book VII, Title 4, Chapter 4 or the measures taken pursuant to them, impose an administrative fine on a lender that may not be less than 2,500 euros, or higher, for the same fact or for the same set of facts, at 50,000 euros.
It may, under the same conditions, impose an administrative fine on a credit intermediary which may not be less than 500 euros, nor higher, for the same fact or for the same set of facts, at 25,000 euros.
The procedure provided for in sections 70 et seq. of the Financial Sector Supervision and Financial Services Act of 2 August 2002 is applicable.
FSMA informs SPF Economics of the final sanctions taken in accordance with the preceding paragraph.
The fines imposed under this section are recovered for the benefit of the Treasury by the Administration of Cadaster, Recording and Domains. "
Art. 12. In Book XV, Title 2, of the same Code, it is inserted a chapter 3 entitled
"CHAPITRE 3. - Radiation and other relief measures in Book VII, Title 4, Chapter 4
Section 1re. - Radiation and other relief measures applicable to Belgian law lenders and intermediaries
Art. XV. 67. The FSMA shall terminate by a decision notified by registered letter to the position or with acknowledgement of receipt, the approval of lenders and the registration of credit intermediaries who have not commenced their activities related to the registration or registration obtained within six months of the approval or registration, who renounce it, who have been declared bankrupt or have ceased to carry out their activities.
Art. XV. 67/1. § 1er. When FSMA finds that a lender does not work in accordance with the provisions of Book VII, Title 4, Chapter 4 and the orders and regulations made for its execution, it identifies these breaches and sets out the time limit within which it must be corrected.
If, at the end of this period, the situation has not been corrected, FSMA may:
1st appoint a special commissioner.
In this case, the written, general or special authorization of the lender is required for all acts and decisions of all organs of the lender, including the General Assembly, and for those of persons responsible for management; FSMA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all organs of the lender, 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 lender.
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 lender 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 of the Special Commissioner is null unless the Special Commissioner ratifies it.
FSMA may designate an alternate commissioner;
2° suspend for the duration that it determines the direct or indirect exercise of any or part of the activity of the lender or prohibit that exercise.
The members of the administrative and management bodies and those responsible for the management who carry out acts or make decisions in violation of the suspension or prohibition are jointly responsible for the damage caused by the lender or the third party.
If FSMA has issued the suspension or prohibition to the Belgian Monitor, the actions and decisions against it are null and void;
3° enjoin the replacement of the lender's directors or managers within a time limit that the lender determines, and, in the absence of such a replacement within that period, substitute for all the lender's administrative and management bodies 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.
The remuneration of the director(s) or provisional manager(s) is fixed by the MSDS and supported by the lender.
ADMSP may, at any time, replace the provisional directors or managers, either ex officio or at the request of a majority of the shareholders or associates when they justify that the management of the persons concerned no longer has the necessary guarantees;
4° revoke the approval.
In the event of an extreme emergency, the ADMS may adopt the measures referred to in the preceding paragraph without the prior adjustment period.
§ 2. The decisions of the FSMA referred to in § 1er deviate their effect on the lender on the date of their notification to the lender by registered letter to the position or with acknowledgement of receipt and in respect of third parties on the date of publication in accordance with the provisions of § 1er.
§ 3. § 1erParagraph 1er and § 2 are not applicable in the event of the cancellation of the approval of a registered lender in bankruptcy.
§ 4. The court of commerce shall pronounce at the request of any interested person, the nullities provided for in § 1er2, 1 and 2 degrees.
The nullity action is directed against the lender. 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 in 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 lender, 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.
§ 5. When the SPF Economie informs the FSMA by a reasoned notification, after hearing the individual, that a lender has breached or severely infringed the provisions of Book VII or the orders and regulations made for its execution, other than those of Title 4, Chapter 4, the FSMA shall, on its own motion, revoke the lender's approval without further examination of the file on the merits.
FSMA shall promptly inform SPF Economy of the delisting.
§ 6. When the lender is a credit institution, an insurance company, an electronic currency institution or a payment institution, the ADMSP shall keep the Bank informed of the decisions it makes pursuant to paragraph 1er2, 1°, 2° and 4°.
When FSMA plans to take the measure referred to in paragraph 1er, paragraph 2, 3° in respect of these same institutions, the procedure referred to in section 36bis, §§ 3 and 4 of the Act of 2 August 2002 on the supervision of the financial sector and financial services is applicable.
§ 7. The lenders whose approval has been terminated or revoked under sections XV.67 and XV.67/1 shall remain subject to Book VII and to the decrees and regulations made for its execution until the full termination of their obligations arising from Book VII, unless the MSDS exempts them for certain provisions, if any on the advice of the SPF Economy.
Art. XV. 67/2. § 1er. When FSMA finds that a credit intermediary does not work in accordance with the provisions of Book VII, Title 4, Chapter 4 and the orders and regulations made for its execution, it identifies these breaches and sets out the time frame for it to be corrected.
It may prohibit for the duration of this period the exercise of all or part of the activity of the credit intermediary and suspend the registration in the register.
If, at the end of this period, FSMA finds that it has not been remedied to the breaches, it removes the registration of the credit intermediary.
Radiation leads to a ban on the exercise of regulated activity and to the title.
In the event of an extreme emergency, FSMA may adopt the measures referred to in this paragraph without the prior adjustment period.
§ 2. The decisions of the FSMA referred to in § 1er deviate their effects with respect to the credit intermediary from the date of their notification to the latter by registered letter to the position or with acknowledgement of receipt.
§ 3. When the SPF Economie informs the FSMA through a reasoned notification, after hearing the person concerned, that a credit intermediary violated or severely infringed the provisions of Book VII or the orders and regulations made for its execution, other than those of Title 4, Chapter 4, the FSMA shall, on its own motion, revoke the registration of the credit intermediary without further examination of the record on the merits.
FSMA shall promptly inform SPF Economy of the delisting.
§ 4. When FSMA finds that it is terminated the collaboration between a lender and a related agent, or between a credit intermediary and a sub-agent, it removes the relevant agent or sub-agent from the registry where the lender was registered, after having previously notified the agent.
Section 2. - Radiation and other relief measures applicable to foreign lenders.
Art. XV. 67/3. § 1er. Without prejudice to section 75, § 5 of the Act of 22 March 1993 relating to the status and control of credit institutions, where FSMA finds that a foreign lender registered in accordance with Article VII. 174, § 4, does not comply with the provisions of Book VII, Title 4, Chapter 4, which are applicable to it or when the SPF Economy informs the FSMA by a reasoned notification, after hearing the individual, that such a lender has seriously breached or breached the provisions of Book VII or the orders and regulations made for its execution, other than those of Title 4, Chapter 4, the FSMA shall correct the lender It informs the competent authority of the original Member State of this lender.
In the event of the persistence, at the end of this period, of the breaches referred to in paragraph 1er, FSMA may, without prejudice to section 75, § 4, of the Act of 22 March 1993, and after having notified the supervisory authority referred to in paragraph 1er, take any appropriate action against that lender, and in particular, prohibit him from pursuing a lender activity and, where appropriate, from crediting in Belgium. This decision is notified to the lender by registered letter to the position, a copy of it being sent to the National Bank of Belgium and the SPF Economy.
When the lender is a credit institution, the European Commission and the European Banking Authority are promptly informed of the measures taken in accordance with the preceding paragraph.
§ 2. Without prejudice to Article 75, § 5, of the Act of 22 March 1993, when the SPF Economy informs the FSMA by a reasoned notification, after hearing the individual, that a foreign lender registered in accordance with Article VII. 174, § 4, does not comply with the provisions of general interest other than Book VII, which are applicable to it, FSMA in fact communicates to the competent authority of the Member State of origin of this lender.
If, despite the measures taken by the competent authority of the Member State of origin or because of the inadequacy of these measures, the lender concerned continues to act clearly detrimental to the interests of consumers in Belgium, FSMA may, after having informed the competent authority of the Member State of origin, take any appropriate action against that lender, and in particular, prohibit it from pursuing an activity of lender, and This decision is notified to the lender by registered letter to the position, a copy of it being sent to the National Bank of Belgium and the SPF Economy.
When the lender is a credit institution, the European Commission and the European Banking Authority are promptly informed of the measures taken in accordance with the preceding paragraph.
Art. XV. 67/4. Sections XV.67 and XV.67/1 apply to other foreign lenders referred to in Article VII. 176..
Section 3. - Radiation and other relief measures applicable to foreign mortgage intermediaries
Art. XV.68. § 1er. When FSMA finds that a foreign mortgage intermediary referred to in Article VII. 183, § 2, does not respect Article VII. 183, § 5, the FSMA maintains that intermediary to remedy, within the time it sets, the situation. It shall inform the competent authority of the Member State of origin of that intermediary.
In the event of the persistence, at the end of this period, of the breaches referred to in paragraph 1er, the ADMSP may, after having notified the control authority referred to in paragraph 1er, take any appropriate action against this intermediary, and in particular prohibit it from pursuing a mortgage intermediary activity in Belgium. This decision is notified to the intermediary by registered letter to the post, a copy of it being sent to the SPF Economy. The European Commission shall be informed promptly of the measures taken in accordance with this paragraph.
§ 2. When the SPF Economie informs the FSMA by a reasoned notification, after hearing the interested party, that an intermediary in foreign mortgage credit referred to in Article VII. 183, § 2, does not comply with the provisions of general interest, other than Book VII which are applicable to it, FSMA shall inform the competent authority of the Member State of origin of that intermediary and requests it to take appropriate measures.
§ 3. Where the authority of the State of origin of this intermediary does not take any action within one month of the receipt of the communication of the MSDS or if, despite the measures taken by the authority of the Member State of origin, the intermediary continues to act clearly injurious to the interests of consumers in Belgium or to the proper functioning of the markets, the MSDS may:
1° after having informed the authority of the Member State of origin, take all appropriate measures to protect consumers and to preserve the proper functioning of the markets, including by prohibiting any new operation of the intermediary in violation of Belgian territory. The European Commission and the European Banking Authority are promptly informed of these measures;
2° seize the European Banking Authority and request its assistance under Article 19 of Regulation (EU) No 1093/2010. In this case, the European Banking Authority may act in accordance with the powers conferred on it by the said article. ".
Art. 13. In Book XV, Title 3, Chapter 2, of the same Code, a section 5 is inserted, as follows:
"Section 5. - Penalties relating to offences under Book VII
Art. XV. 87. A level 3 penalty shall be punished, those who, in bad faith, commit an offence to the provisions:
1° of articles VII. 57 to VII. 59;
2° of articles VII. 64 to VII. 66 on advertising;
3° of Article VII.123, § 1er.
Art. XV. 88. A level 4 penalty shall be imposed, those who commit an offence to the provisions:
1° of Article VII. 149, § 1errelating to the requirement to consult the Central;
2° of Article VII. 149, § 2, concerning communication to the Central and the decrees taken in execution of this article;
3rd of Article VII. 153, § 2, relating to the use of information disclosed;
4th of Article VII. 153, § 2, paragraphs 3 and 4, concerning data of the Central Station that the credit intermediary may obtain.
Art. XV. 89. A level 5 penalty shall be imposed on those who commit an offence to the provisions:
1° of articles VII. 7, VII. 8 and VII. 9, relating to information requirements for isolated payment transactions;
2° of articles VII. 12 and VII. 13 related to the information requirements of framework contracts for payment services and Article VII. 15, relating to access to information and the conditions of the framework contract;
3rd of Article VII. 15, concerning the modification of the terms of the framework contract;
4th of Article VII. 16, concerning the termination of the framework contract and its consequences;
5° of articles VII. 17, VII. 18 and VII. 19, relating to information requirements for individual payment transactions under the framework contract;
6th of Article VII. 20 relating to information requirements for payment instruments relating to low amounts and electronic currency;
7th of Article VII. 22 relating to information requirements for additional costs or reductions for the use of a particular payment instrument;
8th of Article VII. 24, relating to information costs;
9th of Article VII. 27 relating to the authorization of payment transactions and Article VII.28 relating to domicile;
10th of Article VII. 31 relating to the obligations of the payment service provider related to payment instruments;
11° of Articles VII. 35 and VII. 36, §§ 1er to 3, relating to the total and shared responsibility of the payment service provider in the event of unauthorized payment transactions;
12° of articles VII. 37, § 1er and VII. 38, § 1er, relating to refunds of payment transactions initiated by or via the recipient;
13° of articles VII. 39 and VII. 40, relating to the receipt and refusal of payment orders by the payment service provider;
14th of Article VII. 42 relating to the amounts transferred and received and the collection of costs;
15° of articles VII. 44 to VII. 47, relating to the period of execution and the date of the payment transactions;
16° of articles VII. 49 to VII. 51 relating to the liability of the payment service provider for the failure or improper execution of the payment transaction;
17th of Article VII. 55, §§ 1er and 2, relating to fees applied by the payment service provider and section VII. 55, § 3, relating to additional costs or reductions for the use of a given payment instrument applied by the beneficiary;
18th of Article VII. 56, relating to requirements and liability for payment instruments relating to low amounts and electronic currency;
19° Regulation (EC) No 924/2009 of the European Parliament and Council of 16 September 2009 concerning cross-border payments in the Community and repealing Regulation (EC) No 2560/2001;
20° of articles VII. 60 to VII. 62 relating to the electronic currency issuance activity, the repayable nature of the electronic currency and the prohibition of awarding interest;
21° of Articles 3 and 5 to 9 of Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical and commercial requirements for transfers and withdrawals in euros and amending Regulation (EC) No 924/2009.
This penalty is not applicable to the payment services user who acts as a consumer.
Art. XV. 90. Are punished by a level 5 sanction, those who:
1° as a lender contravene the provisions of Article VII. 95, §§ 1er2 or 3;
2° shall sign in white or anti-date tenders, credit claims or credit contracts referred to in Book VII;
3° shall have a total effective annual rate or a rate of debiter that exceeds the maxima referred to in Article VII. 94 and fixed by the King;
4° use one of the abusive clauses referred to in Articles VII. 84 to VII 89 and VII. 105 or in breach of Article VII. 108;
5° sign, in the context of a consumer credit contract, a currency letter or a promissory note as a payment or security of the contract, or accept a cheque as a guarantee of the total or partial refund of the amount due;
6° shall sign by the consumer or any other person an assignment referred to in Article VII. 89, § 1eror articles 27 to 35 of the Act of 12 April 1965 concerning the protection of workers ' remuneration, whose terms do not comply with the provisions of these articles;
7° shall include any payment or compensation other than those provided in Book VII;
8° to the extent that this is prohibited by Article VII. 115, act as a debt mediator;
9° contravene the provisions of Articles VII. 67, on demarcation;
10° contravene the provisions of Article VII. 112, § 1errelating to the intermediation of credit;
11° in contravention of the provisions of Article VII. 69 as a lender or credit intermediary, knowingly ask the consumer or the person who constitutes a security of unauthorized, inaccurate or incomplete information;
12° as a lender or credit intermediary does not provide the consumer with the SECCI referred to in Articles VII. 70 and VII. 71, or knowingly, in violation of articles VII. 74 and VII. 75, do not provide the best-adapted information or do not seek the best-adapted credit;
13° contravene the provisions of Article VII. 68 related to promotional offers;
14° does not comply with the requirement to submit the documents referred to in Articles VII. 99 in VII. 106, § 4;
15° as a lender contravene the provisions of Articles VII. 78, VII. 81 and VII. 109, § 2;
16° in contravention of the provisions of Article VII. 77, § 2, paragraph 1er, as a lender, knowingly enter into a credit contract that they must reasonably consider that the consumer will not be in a position to comply with its obligations;
17° contravene articles VII. 117 to VII. 122;
18° contravene articles VII. 125, VII. 126, § 2, VII. 137, VII. 138 and VII. 143;
19° those who sign a letter of exchange or a promissory note in representation of a mortgage or present such effect to the payment without complying with the provisions of Article VII. 139.
Art. XV.91. Are punished by level 5:
1° those who exercise lender activity without obtaining the approval or registration referred to in Article VII.160, § 6, and VII.174, § 4;
2° those who exercise credit intermediary activity without having obtained the registration provided for in Articles VII.180 and VII.184 or without having been subject, if any, to a regular notification of another competent authority of the European Economic Area;
3° those who, in the exercise of credit intermediary activity, carry out activities with lenders who are not registered or registered in accordance with Article VII.160, § 5, and VII.174, § 4;
4° those who pass in addition to suspension, prohibition, radiation or revocation made under Articles XV.67, XV.67/1, XV.67/2, XV.67/3 and XV.68;
5° those who continue to exercise, in law or in fact, the functions of an effective leader with a lender while the FSMA has found that they do not have the necessary professional honourability and expertise to perform their duties, or an effective officer with a credit or distribution intermediary with a lender or credit intermediary, whereas the FSMA has found that they do not present their ability
6° the lender or credit intermediary who charges a person employed to propose credit contracts while the person does not meet the conditions set out in Articles VII.180, § 2, 2 and 3°, VII.183, § 5, 3° and VII.184, § 1, 3°;
7° the lender who accepts a credit contract submitted by a credit intermediary not registered in accordance with Articles VII.182, § 3, and VII.188, § 3;
8° the lender who offers an agency contract to a credit intermediary not registered in accordance with Articles VII.182, § 3, and VII.188, § 3;
9° those who ignore the provisions of articles VII.159, § 1, VII.180, § 3, and VII.184, § 2."
Art. 14. In book XV, title 3, chapter 2, section 12, of the same Code, it is inserted as follows:
"Art. XV.126/1. A level 4 penalty shall be imposed on those who obstruct the verifications to which they are subject under the provisions of Articles XV.18/1 to XV.18/3 in Belgium or abroad, or knowingly give false, incorrect or incomplete information, documents or documents.
Any new offence as referred to in paragraph 1er committed before five years have elapsed since the completion of the penalty or the statute of limitations for the same offence, is punishable by a level 5 penalty. "
Art. 15. In book XV, title 3, chapter 3, of the same Code, it is inserted a section 1er, as follows:
"Section 1re. Final or temporary prohibition of regulated operations"
Art. 16. In section 1st, inserted by section 15, an article XV is inserted. 127, as follows:
"The judge may order a final or temporary ban on, even on behalf of others, operations regulated by Book VII, Title 4, Chapter 1er"
Art. 17. In Article XV.130 of the same Code, the words "VII, title 4, chapter 1er"are inserted between the words "and the books" and "VIII and IX the".
Art. 18. In Article XV.131, of the same Code, the words "VII, title 4, chapter 1er"are inserted between the words "books VI," and the words "VIII, XIV, and IX the".
Art. 19. In Article XV.131/1 of the same Code, the words "or an offence under Article XV. 91 are inserted between the words "for an offence under title 3, chapter 2, section 8" and the words ", courts and tribunals can".
CHAPTER III. - Amendments
Art. 20. In the Mortgage Act of 16 December 1851 a section 4 was inserted, which reads as follows:
"Section 4. - Mortgages for all money
Art. 81bis. § 1er. A mortgage guarantee may be made for the security of future receivables, provided that, at the time of security, secured claims are determined or determined; its rank is fixed on the day of its registration, regardless of the ages at which secured claims are born.
§ 2. If a mortgage guarantee is made for the security of future receivables that may arise for an indefinite period or for the security of receivables arising out of an indefinite contract, the person against whom such a mortgage is registered or the third party holding the property affected by the mortgage may at any time terminate the mortgage, with a notice of at least three months and a maximum of six months, which notice is sent to the creditor by The notice period shall take place on the date of the acknowledgement of receipt.
As for future receivables, termination has the effect that the mortgage guarantee no longer guarantees any secured claims that exist on the expiry of the notice period. As for long-term contracts, remain guaranteed by the mortgage guarantee, the only claims arising from the execution of these contracts that exist upon the expiry of the notice period.
Anyone who cancels the mortgage guarantee may require the creditor to notify the creditor in writing of the inventory of outstanding claims at the end of the notice period."
Art. 21. In the Mortgage Act of 16 December 1851, a section 5 is inserted, as follows:
"Section 5. - Transfers of privileged and mortgage receivables
Art. 81ter. This section applies to all claims secured by a mortgage, to all claims for which a right to claim a mortgage guarantee has been stipulated, including a mortgage term or a mortgage promise, and to all claims guaranteed by a lien on a property.
Art. 81quater. § 1er. Where a receivable referred to in section 81ter is disposed of or given as a pledge by or by an institution or, where applicable, to or by a special heritage or compartment of an institution that, at the time of assignment or pledge:
1° is a mobilization agency within the meaning of Article 2 of the Act of 3 August 2012 on various measures to facilitate the mobilization of claims in the financial sector, or
2° is a Belgian credit institution, including, where applicable, a special heritage of a Belgian credit institution of covered bonds within the meaning of the Act of 22 March 1993 relating to the status and control of credit institutions, or
3° is a financial institution within the meaning of Article 3, 12° of the Financial Security Act,
Sections 5 and 92, paragraph 3, do not apply to such assignment or pledge. The assignor or the secured debtor of the receivable is required to provide, at the request of a third party, the necessary information as to the identity of the assignee or the secured creditor.
§ 2. An advance made as part of a privileged or mortgage opening or as part of a credit opening stipulated with the right to require a mortgage guarantee, including a mortgage term or a mortgage promise may be transferred.
In the case referred to in the preceding paragraph, the assignee shall also take advantage of the privileges and security rights that guarantee the opening of credit and, unless otherwise agreed between the assignor and the assignee, the right to require a mortgage guarantee, regardless of the amount that remains due under the opening of credit. The transferred advance is paid by priority to advances made in connection with the opening of credit after the assignment or subrogation.
Advances made before or on the date of the assignment shall be paid to a level equal to the advances granted, unless the assignor and the assignee have agreed on another by-law or subordination. Section 5 does not apply to such a by-law or subordination. Such a by-law or subordination shall not prejudice the rights acquired by third parties before the date of the assignment or, if any, before the date of the by-law or subordination, including the rights of the assignee or the creditor with existing receivables relating to advances that have been previously assigned or pledged, unless expressly agreed by such third parties.
The right to use the opening of credit is suspended to the amount of the loan or subject to the subrogation left due by the consumer. The assignor may at any time require the transferor to be informed by the assignee of the remaining amount owing referred to in the preceding paragraph.
§ 3. Without prejudice to section 92, paragraph 2, the deletion or reduction consent act shall be accompanied by a certified true copy or a certified literal extract in accordance with the deed under private seing of assignment.
§ 4. Unless otherwise agreed, a mortgage created for existing and future debts, determined or determinable on the basis of the description of secured claims contained in the Mortgage Act, also guarantees in full right the claims that correspond to this description and that have previously been transferred by the lender to an institution, a facility of an institution or a special heritage, as referred to in § 1er, provided that this assignment has not yet been notified to the consumer or recognized by the consumer at the time of the creation of the mortgage.
Paragraph 1er also applies to receivables that, at the time of the assignment, are not guaranteed by a mortgage, property privilege or a right to require a mortgage guarantee, including a mortgage term or a mortgage promise.
Art. 81quinquies. In the event that the same mortgage, whether or not in the context of an opening of credit, guarantees several claims, one of which is assigned to an institution or to a compartment of an institution, as provided for in Article 81quater, § 1er, this receivable is paid by priority on receivables arising after the date of assignment.
Claims arising before or on the date of the assignment shall be paid to a level equal to the assigned receivables, unless the assignor and the assignee have agreed on another by-law or subordination. Section 5 does not apply to such a by-law or subordination. Such a by-law or subordination shall not prejudice the rights acquired by third parties before the date of the assignment or, if any, before the date of the by-law or subordination, including the rights of the assignee or the creditor of existing receivables that have been previously assigned or pledged, unless expressly agreed by such third parties.
Art. 81sexies. § 1er. A mortgage term is, unless otherwise stated, expressly in the terms of reference, considered to be in full right as stipulated for the benefit of the successors in a universal or special capacity of the holder of the secured receivable, including the assignees of the receivable.
A promise of mortgage is, unless expressly stated otherwise, considered in full law as stipulated for the benefit of successors in a universal or particular capacity of the holder of the secured receivable, including the assignees of the receivable.
§ 2. When a debt is disposed of, in accordance with Article 81quater, § 1erthe assignee shall, unless otherwise agreed between the assignor and the assignee, acquire the rights of the assignor under a mortgage term or a promise of mortgage. The assignee may, unless otherwise agreed between the assignor and the assignee, exercise these rights in respect of the assignor and the agents designated in the warrant or in respect of those who have provided the mortgage promise. On the basis of the warrant or promise of mortgage, the mortgage may be made for the benefit of the assignee before the assignee(s) and the debtor of the bonds transferred are aware of the assignment.
§ 3. When one or more debts that are secured by a mortgage warrant or promise of mortgage are, prior to the establishment of the mortgage, transferred to an institution, to an institution's compartment or to a special heritage, as referred to in Article 81quater, § 1er, the hypothec that is constituted in accordance with the terms of reference or promise of mortgage guarantees, unless otherwise agreed between the assignor and the assignee, not only the existing and future receivables of the assignor described in the Mortgage Act, but also guarantees in full right the receivables that have been previously disposed of by the assignor to the assignee. The mortgage may, at the option, be registered, either on the sole behalf of the assignor or on behalf of the assignor and the assignee, or on the sole behalf of the assignee. Regardless of the choice of the registration method, the assignee is entitled to mortgage rights up to the (of) receivables that have been assigned to him or her and may exercise these rights in respect of the person who consents to the mortgage and in respect of third parties.
§ 4. Where a mortgage is constituted in the execution of a mortgage term or a promise of mortgage, the receivables assigned before or after the establishment of the mortgage to an institution, a special heritage or a compartment of an institution, as referred to in Article 81quater, § 1er, are paid preferably in relation to the receivables that are born after the date of the assignment and that without distinction as to whether or not the receivable is within the framework of an appropriation of credit. Claims arising prior to or on the date of the assignment shall be paid by equal to the assigned receivables, unless the assignor and the assignee have agreed on another by-law or subordination. Section 5 does not apply to a by-law or subordination under this subsection. Such a by-law or subordination may not prejudice the rights acquired by third parties prior to the date of the assignment, or if necessary prior to the date of the by-law or subordination, including the rights of the assignee or the creditor of existing receivables that have been previously assigned or pledged, unless expressly agreed by such third parties.
Art. 81septics. where, in lieu of a mortgage term, a mortgage promise or an existing mortgage, a new mortgage term, a new mortgage promise is made or a new mortgage is constituted, such a mortgage term, such a mortgage promise or a mortgage term, shall be deemed to be a security right, unless otherwise agreed between the assignor and the assignee, orer.
Art. 81octies. § 1er. When a debt that has been assigned to an institution, a special heritage or a compartment of an institution as referred to in Article 81quater, § 1er, is ceded by this institution, this special heritage or this compartment of an institution:
1° the assignee also acquires the rights that the institution, the special heritage or the compartment shall be vested in in accordance with sections 81ter to 81ssepties, including rights relating to privileges, mortgages, mortgages, mortgages and mortgages or mortgages constituted under a warrant or promise of mortgage;
2° the receivable retains its rank determined according to articles 81quinquies and 81sexies, § 4 unless otherwise stipulated in the disposal agreement. Section 5 does not apply to such a by-law or subordination.
§ 2. Where a debt is pledged to or by an institution, a special heritage or a compartment of an institution, as referred to in Article 81quater, § 1er :
1° the pledge extends, unless otherwise provided in the pledge, to the rights of the pledge grantor in respect of the mortgage term, the mortgage promise or the mortgage created under the mortgage term or the mortgage promise;
2° the secured creditor may, unless otherwise provided in the pledge, exercise in respect of the third parties, the principal and the agents specified in the warrant and in respect of the person who provided the promise of mortgage, the rights of the pledge grantor in respect of the mortgage warrant or the promise of mortgage or the mortgage constituted under the mortgage warrant or the promise of mortgage. The hypothec may, at the option, be registered, either on the sole name of the gage constituent, or on behalf of the gage constituent and the assignor who gave the debt to the gage constituent, or on the sole name of the assignor of the receivable.
Art. 81nonies. In the case that a debt that is integrated with a large mortgage for the wearer or order is transferred or pledged for the benefit of or by an institution, special heritage or a compartment of an institution, within the meaning of Article 81quater, § 1er, the provisions of sections 81ter to 81octies included shall apply to such assignment or pledge, without any endorsement or surrender of the title to the assignee or to the secured creditor being necessary.
Art. 81decies. § 1er. The registration of a receivable pursuant to section 64/20 of the Act of 22 March 1993 relating to the status and control of credit institutions or the cancellation of a receivable of that register for a re-employment in the general heritage of the Belgian covered bonds issuing institution for which the register is held is treated in the same manner as a transfer of such receivables for the purposes of the provisions stipulated in sections 81qua. The special heritage then has the quality of assignee in the event of registration and the quality of assignor in the event of the cancellation of the register.
§ 2. If there is a deletion of the registry due to the assignment of receivables to an assignee other than a credit-issuer establishment of covered bonds Belgium for which the register is held, the provision of sections 81quater to 81nonies is applicable to the assignment to the assignee and the deletion is a mere enforcement act relating to that assignment.
Art. 81undecies. Without prejudice to section 31 of the Act of 22 March 1993 relating to the status and control of credit institutions, an assignment of receivable referred to in section 81ter, in the context of a merger, removal or splitting of enterprises or in the context of the intake or sale of the whole or part of the mortgage activity or of the whole or part of the portfolio of these receivables by a third party lender is opposable »
Art. 22. In article VI.52, § 2, of the Economic Law Code, the words "Without prejudice to Article 24, paragraphs 1 and 2, of the Law of 12 June 1991 on consumer credit" are replaced by the words "Without prejudice to Article VII. 92, paragraphs 1er and two."
Art. 23. Article VI.58, § 2, of the same Code, is replaced by the following:
"3° to mortgages subject to Book VII, Title 4, Chapter 2. "
Art. 24. In article VI.66 of the same Code, the 4th is replaced by the following:
"4° consumer credit contracts submitted in Book VII, Title 4, Chapter 1er".
Art. 25. In section 2 of the Act of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and the Financing of Terrorism, last amended by the Programme Act of 29 March 2012, the following amendments are made:
1° 14° is repealed;
2° the 16° is replaced by the following:
"16° the lender within the meaning of article I.9, 34°, of book Ier Economic Law Code. ".
Art. 26. In Article 3, § 2, 4), of the Act of March 22, 1993 relating to the status and control of credit institutions, last amended by the law of November 27, 2012, the words "Law of December 21, 2009 relating to the status of payment institutions, access to the activity of service provider of payment services and access to payment systems and other legislation to the extent that they are related to the status of payment institutions and
Art. 27. In the Act of 27 March 1995 relating to the intermediation of insurance and reinsurance and the distribution of insurance, last amended by the Act of 30 July 2013, an article 4bis is inserted, as follows:
"Art. 4bis. If insurance companies are aware of elements that may question compliance with the terms and conditions of registration set out in this Act in the head of an insurance or reinsurance intermediary to which they appeal or have appealed, they shall promptly communicate these elements to the MSDS.
The same communication is made if they are aware that someone is acting as an insurance or reinsurance intermediary without being registered in the registry provided for in this Act.".
Art. 28. Article 10, paragraph 1erthe following amendments are made to the Act:
1° the 3° is completed by the following:
"It can also have been declared bankrupt, unless it has been rehabilitated. For the purposes of this provision, the bankrupt is considered to be the administrators and managers of a business corporation declared in a bankruptcy state, whose resignation has not appeared in the annexes of the Belgian Monitor at least one year before the bankruptcy declaration as well as any person who, without being a director or manager, has effectively held the power to manage the company declared in a bankruptcy state. ";
2° the paragraph is supplemented by the 9° written as follows:
"9° Communicate to FSMA a professional e-mail address to which FSMA is able to validly address all communications, whether individual or collective, that it operates in accordance with this Act.".
Art. 29. Section 10bis of the Act is supplemented by the following paragraph:
"People under 1st may not have been declared bankrupt, unless they have been rehabilitated. For the purposes of this provision, the bankrupt is considered to be the administrators and managers of a business corporation declared in a bankruptcy state, whose resignation has not appeared in the annexes of the Belgian Monitor at least one year before the bankruptcy declaration as well as any person who, without being a director or manager, has effectively held the power to manage the company declared in a bankruptcy state. ".
Art. 30. Section 13quater of the Act is supplemented by a paragraph written as follows:
"The MSDS may validly notify the decisions referred to in the preceding paragraph by means of pre-printed forms, with a signature reproduced by a mechanics process. ".
Art. 31. Article 15 of the Act is supplemented by § 4, which reads as follows:
§ 4. Any information of the head of offence under this Act or any of the provisions referred to in section 19 of the Act of 22 March 1993 relating to the status and control of credit institutions, against an insurance or reinsurance intermediary, an effective officer with such an intermediary, or a person responsible for the distribution to such an intermediary or to a regulated enterprise, within the meaning of this Act,
Any criminal action by the head of the offences referred to in paragraph 1er must be brought to the attention of the FSMA at the diligence of the Public Prosecutor."
Art. 32. In Article 36/8 of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium, inserted by the Royal Decree of 3 March 2011 implementing the evolution of the control structures of the financial sector, paragraph 1er is replaced by the following:
§ 1er. The Sanctions Commission shall rule on the imposition of administrative fines and breaches provided for in the laws applicable to the establishments it controls, as well as on the imposition of administrative fines and breaches provided for in sections 50/1 and 50/2 of the Act of December 21, 2009 relating to the status of payment establishments and electronic currency institutions, access to the activity of payment service provider, electronic currency issuance activity and electronic currency issuance systems."
Art. 33. In Article 36/14, § 1er, of the same law, as amended by the law of 27 November 2012, the 17th is replaced by the following:
"17° to agents commissioned by the minister who as part of their mission referred to in Article XV. 2 of the Code of Economic Law shall be competent to seek and observe offences under Article XV. 89, 1° to 18°, 20° and 21° of the Code of Economic Law. ".
Art. 34. Article 45, § 1er, 2°, of the Act of 2 August 2002 on financial sector surveillance and financial services, last amended by the Act of 30 July 2013, the following amendments are made:
(1) (c) is repealed;
2° 1 point h) is added, as follows:
"of lenders and credit intermediaries referred to in Book VII, Title 4, Chapter 4 of the Economic Law Code. ".
Art. 35. In article 75, § 1, 13°, of the same law, the words "and for control over mortgage credit" are added between the words "consumption" and "market practices".
Art. 36. Article 86bis, § 1erParagraph 1er, 1° of the same law, inserted by the law of 30 July 2013, the words "of a mortgage company" are replaced by the words "of lender, of credit intermediary".
Art. 37. In section 86ter of the Act, inserted by the Act of 30 July 2013, the following amendments are made:
Paragraph 2 is repealed;
2° in paragraph 3, the words "paragraphs 1er and 2" are replaced by the words "paragraph 1er".
Art. 38. Article 8, paragraph 1er, the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments, last amended by the Act of 30 July 2013, is supplemented by a 12°, which reads as follows:
"12° communicate to FSMA a professional e-mail address to which FSMA has the ability to validly address all communications, whether individual or collective, that it operates in accordance with this Act.".
Art. 39. Article 10, § 4, of the same law, is supplemented by two paragraphs written as follows:
"If the principal is aware of elements that may question compliance with the terms and conditions of registration set out in this Act in the head of one of his agents or another intermediary in banking and investment services to which he appeals or appeals, he shall promptly communicate these elements to the MSDS.
The same communication is made by regulated companies if they are aware that someone is acting as an intermediary in banking and investment services without being registered in the registry provided for in this Act.".
Art. 40. Section 20 of the Act is supplemented by a paragraph written as follows:
"The MSDS may validly notify the decisions referred to in the preceding paragraph by means of pre-printed forms, with a signature reproduced by a mechanics process. ".
Art. 41. Article 21 of the Act is supplemented by § 4, which reads as follows:
§ 4. Any information of the head of offence under this Act or any of the provisions referred to in section 19 of the Act of 22 March 1993 relating to the status and control of credit institutions, against an intermediary in banking and investment services or a person responsible for the effective management of such an intermediary, within the meaning of this Act, and any information of the head of offence under this Act against any other person
Any criminal action by the head of the offences referred to in paragraph 1er must be brought to the attention of the FSMA at the diligence of the Public Prosecutor."
Art. 42. Section 4 of the Act of 21 December 2009 relating to the status of payment institutions and electronic currency institutions, access to the activity of payment service provider, electronic currency issuance activity and access to payment systems, as amended by the Act of 27 November 2012 is supplemented by the 39° to 42° as follows:
"39° "transfer": payment service provided by the payment service provider who holds the payment account of a payer, to credit, on the basis of an instruction given by the payer, the payment account of a beneficiary by a transaction or series of payment transactions, made from the payor's payment account;
40° "Regulation (EU) No. 260/2012": Regulation (EU) No. 260/2012 of the European Parliament and the Council of 14 March 2012 establishing technical and commercial requirements for transfers and withdrawals in euros and amending Regulation (EC) No. 924/2009;
41° "Detail Payment System": a payment system that is not a high-value payment system whose main purpose is to process, compensate or pay transfers or domiciles primarily of a low and low-emergency amount that are generally grouped for transmission;
42° "operator": the entity or entities legally responsible for the operation of a system.".
Art. 43. In Article 43, § 2, paragraph 1er, 3°, of the same law, as amended by the law of 28 July 2011, the words "reports or" are repealed.
Art. 44. The title 3 of Book 2, of the same Act, is replaced by the following:
"TITRE 3. - Access to payment systems in Belgium and interoperability".
Art. 45. In Title 3 of Book 2, of the Act, an article 49/1 is inserted, which reads as follows:
Article 49/1. When making transfers and domiciles, payment service providers must take the necessary steps to use payment schemes that meet the requirements of Article 4.1. of Regulation (EU) No. 260/2012". "
Art. 46. In Title 3 of Book 2, of the Act, an article 49/2 is inserted, which reads as follows:
Article 49/2. The operator of a retail payment system established in Belgium or, in the absence of an operator, the participants in the system shall ensure that their system is interoperable with other retail payment systems within the Union, in accordance with the provisions of Article 4.2 and 4.3 of Regulation (EU) No. 260/2012. ".
Art. 47. In section 50 of the Act, subsection 4 is repealed. .
Art. 48. In Title 4 of Book 2, of the Act, an article 50/1 is inserted, which reads as follows:
Article 50/1. Without prejudice to the other measures provided for in this Act or in other laws, decrees or regulations, the measures and sanctions provided for in Article 50, paragraphs 1er to 3 may be taken in respect of payment service providers that contravene section 49/1. "
Art. 49. In Title 4 of Book 2, of the Act, an article 50/2 is inserted, as follows;
Article 50/2. § 1er. The following measures and sanctions may be taken with respect to the operator of a retail payment system established in Belgium that contravenes Article 49/2:
(a) the Bank may set a time limit in which the operator must comply with the provisions of Article 49/2 and make the necessary adjustments;
(b) if the operator fails to comply with Article 49/2 at the expiry of the period, the Bank may, the operator heard or at least summoned, inflict a breach on the operator at a maximum of 2.500,000 euros per offence or a maximum of 50,000 euros per day of delay;
(c) the Bank may publish that the operator has not complied with the injunctions made to it to comply within the time limit set out in section 49/2;
(d) without prejudice to other measures provided for in this Act and without prejudice to the measures provided for by other laws, decrees or regulations, the Bank may, when it finds an offence under section 49/2 or the measures taken pursuant to that provision, impose an administrative fine to the operator which may not be less than 2,500 euros or greater, for the same fact or for the same set of facts, at 2,500,000 euros.
§ 2. In the absence of an operator, the measures and penalties provided for in paragraph 1er may be taken in respect of participants in the retail payment system established in Belgium. ".
Art. 50. In Title 4 of Book 2, of the same Law, an article 50/3 is inserted, which reads as follows:
Article 50/3. Penalties and fines imposed under sections 50, paragraphs 2 and 3, 50/1 and 50/2 shall be recovered to the Treasury by the administration within the Federal Public Service Finance competent in respect of non-tax recovery. ".
Art. 51. In Article 95, § 2, paragraph 1er, 3°, of the same law, inserted by the law of November 27, 2012, the words "regular reports or" are repealed.
Art. 52. In Article 105, § 1erParagraph 1er, of the same law, inserted by the law of November 27, 2012, the words "sections 1 to 3 of Chapter I er of Title 2" are repealed.
CHAPTER IV. - Abrogatory provisions
Art. 53. Are repealed:
1° Royal Decree No. 225 of 7 January 1936 regulating mortgages and organizing the control of mortgage companies. The Royal Order remains applicable to current credit contracts;
2° the Act of 12 June 1991 on consumer credit;
3° the Act of 4 August 1992 on mortgage credit;
4° the law of 10 August 2001 concerning the Central of Credits to Individuals;
5° the Act of 24 March 2003 establishing a basic banking service;
6° the law of 10 December 2009 refers to payment services;
7° Chapter 20 of the Royal Decree of 3 March 2011 implementing the evolution of the financial sector control structures, confirmed by Article 298 of the Act of 3 August 2012.
CHAPTER V. - Transitional provisions
Art. 54. § 1er. The regulatory provisions made pursuant to the Consumer Credit Act of 12 June 1991, the Mortgage Credit Act of 4 August 1992, the Act of 10 August 2001 relating to the Individual Credit Centre and the Act of 24 March 2003 establishing a basic banking service remain in force until their repeal.
Offences to the provisions of an order made pursuant to the laws referred to in paragraph 1er are sought, found and punished in accordance with Books XV and XVII of the Economic Law Code.
§ 2. For the purposes of the provisions of the Economic Law Code, as set out in this Act, the current terms, as part of a domicile, remain valid until their termination or revision. Changes in the management of home ownership as a result of changes in management contracts between the payment service providers concerned and, where applicable, the recipient is subject to the payor with respect to the information requirements and the possibility of termination of residence in accordance with the terms referred to in Article VII. 15, § 1eras set out in this Act in the Economic Law Code.
§ 3. The provisions relating to the registration of persons who constitute a security right referred to in Article VII. 148 and the references in the security contract referred to in Article VII. 109, as set out in this Act in the Economic Law Code, are only required for new contracts concluded from the date to be determined by the King in a deliberate order in the Council of Ministers after the advice of the Central Support Committee of Credits to Individuals.
§ 4. Mortgage lenders who, on the date of entry into force of Book VII, Title 4, Chapter 4, are regularly registered by the FSMA as mortgage companies pursuant to section 43 of the Mortgage Credit Act of August 4, 1992, are granted a preliminary approval allowing them to continue the exercise of their business.
Consumer credit lenders who, on the date of entry into force of Book VII, Title 4, Chapter 4, are regularly approved by the Minister of Economy in accordance with section 74 of the Consumer Credit Act of 12 June 1991, are granted a provisional approval to continue the exercise of their activities.
In the month of the coming into force of Chapter 4 above, the SPF Economie shall transmit to the MSDS the list of lenders referred to in the preceding paragraph.
Consumer credit intermediaries who, at the date of entry into force of Book VII, Title 4, Chapter 4, have been engaged in consumer credit intermediation activity for at least one year and are regularly registered with the SPF Economy in accordance with the Consumer Credit Act of 12 June 1991 are provisionally allowed to continue the exercise of this activity.
Mortgage credit intermediaries who, on the date of entry into force of Book VII, Title 4, Chapter 4, have been engaged in intermediation on mortgages for at least one year, are provisionally allowed to continue the exercise of this activity.
§ 5. However, the persons referred to in paragraph 4 are required to apply to FSMA for final approval as a lender, or for registration as an intermediary within eighteen months of the entry into force of Book VII, Title 4, Chapter 4.
Failing to file an application for approval or registration, or to obtain such approval or registration within the time limit set out in the preceding paragraph, the provisional approval or provisional authorization referred to in subsection 4 shall terminate the right.
§ 6. The records available on the date of entry into force of Book VII, Title 4, Chapter 4, of mortgage lenders in accordance with section 43bis of the Act of 4 August 1992 on mortgage credit and consumer lenders in accordance with section 75bis of the Act of 12 June 1991 on consumer credit, remain valid.
In the month of the entry into force of Book VII, Title 4, Chapter 4, the SPF Economy transmits to the FSMA a list of lenders in credit to consumption registered in accordance with section 75bis of the Act of 12 June 1991 on consumer credit.
FSMA publishes on its website the list of mortgage lenders and consumer lenders registered under paragraph 1,
However, lenders referred to in this paragraph are required to apply to the SPF Economy for approval of their contract models within eighteen months of the entry into force of Book VII, Title 4, Chapter 4.
§ 7. As long as the King has not implemented Book VII, Title 4, Chapter 4, Articles 74 to 79, 101, § 1er1° and 2°, and 106 to 108, of the Act of 12 June 1991 on consumer credit, and articles 39 to 44 of the Act of 4 August 1992 on mortgage credit, remain in force.
§ 8. During the period of provisional approval, provisional registration, or provisional authorization, and during the period referred to in paragraph 6, paragraph 4, Article VII.174 of Book VII, Title 4, Chapter 4, Article XV.67/1, § 5, Article XV.67/2, § 3, and Article XV.67/3 of Book XV, Chapter 3, are applicable to the lenders and intermediaries concerned. In addition, Article VII. 171 of Book VII, Title 4, Chapter 4, is applicable to lenders.
CHAPTER VI. - Jurisdiction
Art. 55. Existing laws and enforcement orders referring to the provisions referred to in section 53 are presumed to refer to the equivalent provisions of the Economic Law Code, as set out in this Act.
Art. 56. The King may replace references in existing laws or decrees to the provisions referred to in section 47 with references to the equivalent provisions of the Economic Law Code, as set out in this Act.
Art. 57. The King may coordinate the provisions of the Economic Law Code, as set out in this Act, with the provisions that would have expressly or implicitly amended them at the time the coordination is established.
To this end:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions.
CHAPTER VII. - Entry into force
Art. 58. The King shall establish the entry into force of each of the provisions of this Act and each of the provisions inserted by this Act in the Economic Law Code.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 19 April 2014.
PHILIPPE
By the King:
Minister of Economy and Consumers,
J. VANDE LANOTTE
The Minister of Finance,
K. GEENS
The Minister of Justice,
Ms. A. TURTELBOOM
Minister of Average Class,
Mrs. S. LARUELLE
Seal of the State Seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
House of Representatives:
(www.lachambre.be)
Documents: 53-3429 - 2013/2014
Full report: 26 and 27 March 2014.
Senate:
(www.senate.be)
Documents: 5-2817 - 2013/2014.

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