Law On The Status And Control Of Independent Financial Planners And The Provision Of Consultation In Planning By Regulated Companies And Amending The Code Of Corporations And Act Of 2 August 2002 On Supervision Of

Original Language Title: Loi relative au statut et au contrôle des planificateurs financiers indépendants et à la fourniture de consultations en planification par des entreprises réglementées et modifiant le Code des sociétés et la loi du 2 août 2002 relative à la surveillance du

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
belgiquelex.be - Carrefour Bank of Legislation

25 AVRIL 2014. - Act respecting the status and control of independent financial planners and the provision of planning consultations by regulated companies and amending the Corporate Code and the Financial Sector Supervision and Services Act of August 2, 2002 (1)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER Ier . - Scope of application and definitions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act sets out the conditions for the accreditation and exercise of the activity of an independent financial planner, as well as the rules of conduct that these independent financial planners and regulated companies must adhere to in the provision of financial planning consultations to retail customers, as well as the monitoring of compliance with these provisions and the provisions of the orders and regulations made for its implementation.
Art. 3. § 1er. This Act applies to natural or legal persons who offer to provide or provide on Belgian territory, as an ordinary professional activity, whether complementary or incidental, financial planning consultations to retail customers.
§ 2. Derogation from paragraph 1er, this Act, except section 7, paragraph 1er, 1° and paragraph 2, is not applicable:
(a) the European Central Bank, the National Bank of Belgium and members of the European System of Central Banks;
(b) persons who provide financial planning consultations exclusively on behalf of a single family;
(c) legal persons who provide financial planning consultations on behalf of related companies;
(d) persons who provide financial planning consultations under another professional activity provided that this activity is not covered by section 22, paragraph 2, and that it is governed by a code of ethics provided by law, not excluding the provision of such consultations.
Art. 4. For the purposes of this Act, it shall be understood by:
1° "consultation in financial planning": a consultation on optimization, including structuring, time planning, protection, legal organization or transmission, a customer's heritage, based on the needs and objectives expressed by the client, and excluding the provision of investment services or advice relating to transactions on individual financial products;
2° "detail clients": a retail client referred to in section 2, paragraph 1er29° of the Financial Sector Supervision and Financial Services Act of 2 August 2002;
3° "regulated companies" :
(a) the credit institutions referred to in Article 1er§ 3 of the Act of 25 April 2014 on the Status and Control of Credit Institutions;
(b) investment companies referred to in section 44 of the Act of 6 April 1995 relating to the status and control of investment enterprises;
(c) insurance companies subject to the Act of 9 July 1975 on the control of insurance companies;
(d) professional pension institutions referred to in Article 2, paragraph 1er1°, of the Act of 27 October 2006 on the Control of Professional Retirement Institutions;
(e) insurance intermediaries referred to in Article 5, 20°, of the Insurance Act of 4 April 2014;
(f) intermediaries in banking and investment services referred to in section 4, 2°, of the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments;
(g) collective investment organizations and collective investment management companies, respectively referred to in sections 3, 1°, and 3, 10°, of the Act of 3 August 2012 on certain forms of collective investment portfolio management;
(h) managers of alternative collective investment organizations, referred to in Article 3, 13°, of the Act of April 19, 2014 on alternative collective investment organizations and their managers.
For the purposes of this Act, the King may:
(a) extend the concept of "regulated business" with a view to including companies whose regulatory status would be created after the coming into force of this Act;
(b) adapt the above-mentioned legal references if they are amended;
4° "control": the control referred to in section 1reChapter II of Title II of the Corporate Code;
5° "collaborators": employees of the person who provides financial planning consultations, whether or not they are engaged in the links of a work contract;
6° "FSMA": the Autorité des services et des marchés financiers.
CHAPTER II. - Status of independent financial planner: conditions of accreditation and exercise of the activity, requirement of independence
Section 1re. - Accreditation, list and title protection
Independent financial planner
Art. 5. § 1er. Without prejudice to section 34, natural or legal persons other than regulated companies who intend to exercise the activity referred to in section 3 are required to obtain prior approval as an independent financial planner to the MSDS.
§ 2. Without prejudice to Article 7, regulated enterprises of Belgian law may, to the extent that their status does not exclude it, exercise the activity referred to in Article 3.
As part of this activity, regulated companies must adhere to the rules of conduct set out in Chapter III.
§ 3. FSMA provides an independent financial planner approval to those who apply for it and who meet the requirements set out in section 2.
The King is empowered to determine, on the advice of the MSDS, the forms and conditions to which any application for approval must satisfy, the list of documents to be forwarded in order to demonstrate compliance with the conditions set out in section 2, as well as the procedure for processing applications by the MSDS.
The applicant shall immediately notify the MSDS of any changes to the information or documents transmitted for the processing of the application for approval, without prejudice to the right of the MSDS to collect all the necessary information from the applicant or to request evidence.
§ 4. The MSDS will decide on the application for approval within three months of receipt of a complete file. FSMA notify the applicant by registered letter to the position.
Art. 6. The FSMA holds a list of approved independent financial planners that the public can read on its website.
The list mentions for each independent financial planner:
1° the data necessary for its identification;
2° the date on which his approval was granted;
3° the mention that he exercises as a natural person or as a commercial corporation, and in that latter case, the form of the corporation;
4°, if any, the date of the delisting or suspension of its approval;
5° any other information that FSMA considers useful for correct public information.
The FSMA sets out the conditions for the deletion of the approval of an independent financial planner to be removed from the list.
Art. 7. § 1er. Without prejudice to paragraph 2, only independent financial planners approved by the FSMA in accordance with this Act and regulated companies may:
1° to present to the public in Belgium as "financial planners" or to use similar denominations;
2° report, in any form, the provision of financial planning consultations to retail customers.
§ 2. Only independent financial planners approved by FSMA in accordance with this Act may:
1° to be presented to the public in Belgium as "independent financial planners" or to use similar denominations;
2° to the public in Belgium as independent in the exercise of their financial planning activity with respect to retail customers;
3° use the words "financial planner" or similar words in their name or in their trade name.
Section 2. - Conditions of licence
Art. 8. The independent financial planner activity is carried out in person or in the form of a commercial corporation.
Art. 9. The central administration of an independent financial planner must be established in Belgium.
Art. 10. The application for approval includes a three-year financial plan whose form and content is determined by the King on the advice of the FSMA.
Art. 11. § 1er. If the application for approval as an independent financial planner is introduced by a corporation, the approval is subject to the communication of the identity of persons who directly or indirectly exercise control over the corporation.
§ 2. Persons referred to in paragraph 1er must possess the qualities necessary to ensure a healthy and prudent management of society.
FSMA may consult with the National Bank of Belgium if it has reason to believe that it has information regarding the qualities of the persons concerned, due to its mission to control certain regulated companies. The National Bank of Belgium shall provide the information available to FSMA within fourteen days of the request for notice.
Art. 12. § 1er. If the application for approval as an independent financial planner is introduced by a company, the members of the legal board of directors of the company and the persons responsible for the effective management must be exclusively natural persons.
§ 2. The independent financial planner in person and persons referred to in paragraph 1er, as well as employees authorized to represent the independent financial planner when providing financial planning consultations, may not be in one of the cases listed in section 20 of the Act of 25 April 2014 relating to the status and control of credit institutions.
§ 3. The persons referred to in paragraphs 1er and 2, must have the necessary professional honesty and expertise at all times to perform their duties.
FSMA may consult with the National Bank of Belgium if it has reason to believe that it has information regarding the qualities of the persons concerned, due to its mission to control certain regulated companies. The National Bank of Belgium shall provide the information available to FSMA within fourteen days of the request for notice.
Art. 13. Accreditation as an independent financial planner is subject to the existence of an adequate organization to comply with the provisions of this Act and its enforcement orders.
The King is empowered to determine the scope of this condition on the advice of FSMA.
Art. 14. Accreditation is subject to the subscription of insurance covering the professional responsibility of the independent financial planner.
The King is empowered to determine the form and content of this obligation on the advice of the MSDS.
Section 3. - Conditions of activity
Art. 15. § 1er. Independent financial planners comply with the terms and conditions of approval set out in section 2.
They are required to report to FSMA any significant changes in the conditions of their initial approval.
§ 2. The independent financial planners shall ensure compliance by their employees with the provisions of this Act and its enforcement orders.
§ 3. The independent financial planners have an internal code of conduct that meets the conditions set by the King on the advice of the FSMA and ensure that the code is respected by their employees and, in the case of a corporation, by their directors and officers.
Art. 16. In the case of a corporation, independent financial planners inform the ADMF of any change in control over the corporation. They transmit to the FSMA all the documents and information necessary to demonstrate that the persons concerned have the qualities necessary to ensure the sound and prudent management of society.
FSMA may consult with the National Bank of Belgium if it has reason to believe that it has information regarding the qualities of the persons concerned, due to its mission to control certain regulated companies. The National Bank of Belgium shall provide the information available to FSMA within fourteen days of the request for notice.
FSMA sends to the independent financial planner a notice of the proposed amendments within sixty days of receipt of a complete file. These amendments may only take place if the FSMA has made a notice in compliance.
Art. 17. The independent financial planners inform the FSMA of any proposal for the designation of employees authorized to represent them in the provision of financial planning consultations and, in addition, in the case of a company, any proposal for the appointment of members of the legal body of administration and persons responsible for the effective management.
As part of the information required under paragraph 1er, independent financial planners provide the FSMA with all documents and information to enable it to assess whether the proposed individuals have the necessary professional performance and expertise to perform their duties in accordance with section 12.
Paragraph 1er is also applicable to the proposed renewal of the appointment or designation, as the case may be, of the persons referred to therein and to the non-renewal of their appointment, revocation or resignation.
FSMA may consult with the National Bank of Belgium if it has reason to believe that it has information regarding the qualities of the persons concerned, due to its mission to control certain regulated companies. The National Bank of Belgium shall provide the information available to FSMA within fourteen days of the request for notice.
The appointment or designation, as the case may be, of persons referred to in paragraph 1er is subject to prior approval by the MSDS. It shall forward to the independent financial planner its decision within sixty days of receipt of a complete file.
In the case of a company, the independent financial planners inform the FSMA of the possible division of tasks between the members of the legal body of administration, the persons responsible for the effective management, as well as the significant changes in this division of duties.
Art. 18. § 1er. Independent financial planners cannot provide their clients with any investment advice referred to in section 46, 9 of the Act of April 6, 1995 relating to the status and control of investment companies, nor more generally any advice relating to transactions on individual financial products.
§ 2. Independent financial planners may not at any time receive or maintain cash or account funds or financial products owned by their customers or be in a debiting position with respect to their customers.
Independent financial planners may not have a mandate or power of attorney on an account of their clients, except for those of their family members who are part of their household and commercial companies of which they are the effective manager.
Art. 19. The independent financial planners comply, in the course of their activity, with 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 and with the orders made pursuant to that Act.
Art. 20. The independent financial planners contribute to the operating costs of the FSMA in accordance with the terms and conditions established by the King in accordance with section 56 of the Financial Sector Supervision and Financial Services Act of 2 August 2002.
Art. 21. § 1er. Independent financial planners planning to provide financial planning consultations to retail customers in the territory of another State, if any through a subsidiary or branch, notify the FSMA of their intention.
This notification includes information on planned activities, their financial impact and the consequences of these activities in terms of the organization of the independent financial planner.
Within eight days of receiving this notification, the MSDS shall acknowledge receipt of the notification and indicate to the applicant whether its file is complete.
§ 2. If it considers, on the basis of information provided by application of § 1er, paragraph 2, that the project will have a negative impact on the independent financial planner, the FSMA may object to the completion of the project by reasoned decision.
ADM's decision is notified to the independent financial planner by registered letter to the position within sixty days of receipt of a complete file. If FSMA has not notified a decision within this timeframe, it is deemed not to oppose the project.
Section 4. - Independence
Art. 22. § 1er. Subject to the incompatibility referred to in paragraph 2, the independent financial planner may also carry out other professional activities, provided that:
1° that they are not likely to place it in a conflict of interest situation;
2° that they do not compromise their reputation;
3° that they are completely separate from the organizational and accounting financial planning activities.
In the course of these other professional activities, the independent financial planner must avoid referring to its status as an independent financial planner during its contacts with the public, except to ensure its reputation.
On the advice of the FSMA, the King may specify the conditions referred to in paragraph 1er.
§ 2. Derogation from paragraph 1erindependent financial planners cannot:
1° to accumulate their status as an independent financial planner with a regulated corporate status;
2° offer for sale or subscription, on behalf of or on behalf of third parties, investment instruments;
3° to accumulate their status as an independent financial planner with a payment establishment status referred to in the Act of 21 December 2009 relating to the status of payment establishments and electronic currency establishments, access to the activity of payment service provider, electronic currency issuance activity and access to payment systems;
4° to exercise, on behalf of or on behalf of third parties, the activity of trade in gold and precious metals or the activity of trade in foreign exchange referred to in sections 137 and 139 of the Act of 6 April 1995 relating to the status and control of investment enterprises;
5° to accumulate their status as an independent financial planner with a real estate agent status referred to in section 2, 4°, of the law of February 11, 2013 organizing the real estate agent profession.
§ 3. The requirements referred to in paragraph 1er and the cumulative prohibitions referred to in paragraph 2 shall also apply:
(a) the directors and officers of the independent corporate financial planner and the companies they control;
(b) companies and individuals associated with or associated with the independent financial planner within the meaning of articles 11 and 12 of the Corporate Code;
(c) staff of the independent financial planner.
Art. 23. § 1er. The financial planners are independent of the issuers and regulated companies.
§ 2. Independent financial planners are exclusively paid by their clients. They may not receive directly or indirectly any remuneration, commission, or any other benefit from regulated businesses or issuers, except for non-monetary benefits that have the direct consequence of improving service to customers.
CHAPTER III. - Rules of conduct in the provision of financial planning consultations
Art. 24. This chapter applies:
1° to independent financial planners;
2° to regulated enterprises where they exercise the activity referred to in Article 3.
Art. 25. § 1er. When providing financial planning consultations, independent financial planners and regulated companies ensure that they act in an honest, fair and professional manner that best serves the interests of their customers.
§ 2. All information, including advertising, that they address potential customers or customers, is correct, clear and not misleading. Advertising information is clearly identifiable as such.
§ 3. When providing financial planning consultations, independent financial planners and regulated companies comply with Book VI of the Economic Law Code by acting as if their retail customers were all consumers within the meaning of this law.
Art. 26. § 1er. Prior to providing financial planning consultations, potential clients and clients receive at least the following information on a sustainable basis:
(a) the full identity and contact information of the independent financial planner or regulated company that provides the consultations;
(b) the status of the independent financial planner or of the regulated company that provides the consultations, as well as the name and address of the competent authority that issued its approval;
(c) that financial planning consultations should, in principle, incorporate four dimensions: civil law, tax and taxation, social security and security of existence, and economic and financial context;
(d) the cost of financial planning consultations and, where appropriate, the commercial conditions to which the financial planning consultation is subordinate;
(e) a general description, possibly provided in summary form, of the policy followed by the independent financial planner or the regulated business in respect of conflicts of interest;
(f) a general description, possibly summarized, of the rules of conduct applicable to the provision of financial planning consultations.
Any substantial change in the information provided is communicated to the customer in due course on a sustainable basis.
§ 2. In addition to providing financial planning consultations, independent financial planners provide the following information to their potential clients and clients on a sustainable basis:
(a) the fact that they are independent of the issuers and regulated companies;
(b) the prohibition of compensation, commissions and other monetary benefits directly or indirectly from regulated companies or issuers;
(c) the prohibition on receiving and holding funds and financial products owned by their clients;
(d) the prohibition on providing their clients with investment advice referred to in section 46, 9°, of the Act of 6 April 1995 on the Status and Control of Investment Businesses and, more generally, advice on transactions on individual financial products;
(e) the prohibition of having a mandate or power of attorney on the accounts of their clients, except for those of their family members who are part of their household and commercial companies of which they are the effective leader.
Any substantial change in the information provided is communicated to the customer in due course on a sustainable basis.
Art. 27. Prior to the provision of financial planning consultations, all necessary information on the personal situation of the client, including information on the financial, family and professional situation, as well as its objectives and needs in terms of financial planning, must be collected in writing so that it can provide adequate consultation.
The King may specify the information to be provided by the client regarding his personal situation.
If the required information cannot be collected, no financial planning consultation can be provided to the client concerned.
Art. 28. § 1er. Prior to the provision of financial planning consultations, a written agreement must be concluded with each client. This Convention sets out the rights and obligations of the parties, and mentions the information referred to in Article 26.
§ 2. If the client does not wish to have his situation undergo a multidisciplinary analysis taking into account the four dimensions set out in section 29, the agreement referred to in paragraph 1er must expressly provide this by specifying which dimension(s) will not be taken into account.
If the client does not wish the financial planning consultation to focus on the optimization of the entire heritage, but only on part of it, the agreement referred to in paragraph 1er must expressly provide for this by specifying which part(s) of the heritage will be taken into account.
Art. 29. § 1er. Except as expressly requested by the client in accordance with Article 28, paragraph 2, paragraph 1er, financial planning consultations should be based on a multidisciplinary analysis of the client's situation that integrates both:
(a) Civil law;
(b) taxation and taxation;
(c) social security and security of existence;
(d) the economic and financial context.
§ 2. Except as expressly requested by the client in accordance with section 28, paragraph 2, paragraph 2, the financial planning consultations must address the optimization of the entire client's heritage.
§ 3. Financial planning consultations must be personalized and adequate in view of the information collected in accordance with section 27 on the client's personal situation, as well as its objectives and needs in terms of financial planning.
Art. 30. § 1er. A financial planning consultation is documented in a written, clear and comprehensive report that is submitted to the client as soon as possible.
§ 2. This report justifies the appropriateness of the consultation provided in relation to the client's personal situation and taking into account the multidisciplinary analysis referred to in section 29, paragraph 1er.
Art. 31. A file is made for each client, including a copy of the agreement referred to in section 28 and the report referred to in section 30, as well as any other evidence.
This file is maintained for at least five years after the end of the contractual relationship.
Art. 32. § 1er. The independent financial planner or the regulated company that provides financial planning consultations must take any reasonable steps to avoid conflicts of interest between itself or itself, including, where appropriate, those who control them, their executives and employees, and their clients or between customers and, if a conflict cannot be avoided, to identify and manage this conflict in order to avoid infringement of the interests of customers.
If the measures taken to manage a conflict of interest are not sufficient to ensure with reasonable certainty that the risk of harming the interests of the client will be avoided, the customer is informed, before a consultation is provided, in a clear and sustainable manner, of the general nature and/or source of the conflict of interest. The information provided must be sufficiently detailed, in the light of the client's personal situation, so that the client can make informed decisions about whether or not to continue to use the services offered. If the client decides to terminate the financial planning agreement for this reason, no compensation shall be payable in the head of the financial planning agreement.
§ 2. Regulated companies that have established a conflict of interest management policy in the delivery of investment services must extend the implementation of this policy to conflicts of interest arising in the provision of financial planning consultations.
Art. 33. The King is empowered to establish, on the advice of the MSDS, rules for the performance of the rules of conduct referred to in this chapter, as well as complementary rules of conduct for the purpose of ensuring the information and protection of their interests.
CHAPTER IV. - Provision of financial planning consultations
by foreign companies
Art. 34. § 1er. Legal persons under the law of other States, members or not of the European Economic Area, who wish to exercise the activity referred to in Article 3, paragraph 1er, must have a permanent establishment in Belgium.
§ 2. Legal persons referred to in paragraph 1er shall meet the following conditions:
1° be submitted in their State of origin to a status similar to the status of independent financial planner, enabling them to provide, in that State, financial planning consultations;
2° obtain prior approval for their branch in Belgium as an independent financial planner in accordance with Chapter II, subject to the following provisions:
(i) before deciding on the request for approval of the branch, FSMA shall consult with the authorities in charge, if any, of the control in the State of origin;
(ii) branches that have obtained the approval of the MSDS are listed in a special section of the list;
(iii) the condition referred to in Article 9 concerns activities in Belgium;
(iv) the requirements for persons who exercise control over the corporation apply to the holders of the capital of the foreign law corporation, while the requirements for the leaders are directed at the Belgian branch.
3° comply with the provisions of this Act in the exercise of their activities in Belgium, provided that:
(i) Article 21 is not applicable;
ii) for the purposes of section 22, the concept of an independent financial planner is defined by the branch and the foreign company.
§ 3. By derogation from paragraph 2, the activity referred to in Article 3, paragraph 1 may be exercised in full righter, the Belgian branches of companies under the law of another Member State of the European Economic Area, submitted in their State of origin to a harmonized status equivalent to the regulated company status that does not confer on them a passport covering the provision of financial planning consultations, but does not exclude the provision of such consultations.
As part of the exercise of the activity referred to in section 3, paragraph 1er, the companies concerned comply with the rules of conduct set out in chapter III.
§ 4. Derogation from paragraphs 1er and 2, enterprises under the law of another Member State of the European Economic Area, subject to a status equivalent to the status of a regulated business in their State of origin, may, to the extent that the status confers on them a passport covering the provision of consultations in financial planning, exercise the activity referred to in Article 3, paragraph 1 of the Law.er, by installation of branches or under the free provision of services.
As part of the exercise of the activity referred to in section 3, paragraph 1er, the companies concerned comply with the rules of conduct set out in chapter III.
FSMA shall inform the companies concerned of the provisions of this Act which, to its knowledge, are of general interest. These general interest provisions are posted on the FSMA website.
CHAPTER V. - Organization of Control
Administrative measures
Art. 35. § 1er. FSMA is responsible for monitoring compliance with the provisions of this Act and the orders and regulations made for its implementation.
§ 2. FSMA may require all information necessary to carry out its monitoring mission within the time it sets out with those who provide financial planning consultations in Belgium. The ADMSP may also conduct on-site inspections and be informed and informed of any information that the person providing financial planning consultations has in his or her possession.
§ 3. With a view to the effective implementation of this Act and the measures taken pursuant to it, FSMA cooperates, where applicable, with the National Bank of Belgium when regulated enterprises under its control are concerned, as well as with the authorities of other States with similar competences to its own. FSMA may exchange confidential information with these authorities in accordance with the provisions of articles 75 and 77, paragraphs 1er and 2 of the Financial Sector Supervision and Financial Services Act of 2 August 2002. The MSDS shall inform them of any action taken under sections 37 to 39 with respect to companies under their control.
Art. 36. Where the FSMA finds that an independent financial planner or a branch of a foreign business referred to in section 34, paragraph 2, does not comply with the provisions of this Act or the orders and regulations made for its execution, it identifies the breaches committed and maintains it to correct these breaches within the time it fixes. It may extend this period.
FSMA may prohibit during this period the exercise of all or part of the financial planning activity and suspend the approval.
If, upon expiry of this period, the MSDS finds that it has not been remedied to the breaches, it may remove the approval as an independent financial planner.
Art. 37. When FSMA finds that a regulated Belgian company or a foreign company referred to in article 34, paragraph 3 or 4, does not comply, when providing financial planning consultations to retail customers in Belgian territory, with the rules of conduct set out in chapter III or in the orders and regulations made for its execution, it identifies the breaches committed and continues to correct these breaches within the time limit it sets. It may extend this period.
Art. 38. § 1er. Without prejudice to the application of any other measures provided for in this Act, the ADMDS may, in respect of a person who fails to respond to the stipulations made under sections 36 or 37:
1° inflict a maximum of 250,000 euros per offence or 5,000 euros per day of delay;
2° publicize the fact that no follow-up has been given to the stipulations that have been made.
§ 2. The offences imposed by FSMA pursuant to paragraph 1er are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
CHAPTER VI. - Sanctions
Section 1re. - Administrative sanctions
Art. 39. § 1er. Without prejudice to other measures provided for in this Act, FSMA may, where it finds an offence under this Act or the orders and regulations made for its execution, impose an administrative fine to the person concerned that may not be less than 2,500 euros, nor greater for the same fact or set of facts at 75,000 euros.
§ 2. Fines imposed by FSMA pursuant to paragraph 1er are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
Section 2. - Penal sanctions
Art. 40. § 1er. Without prejudice to the application of more severe penalties under the Penal Code, will be punished by imprisonment for one month to one year and a fine of 50 euros to 10,000 euros or one of these penalties only:
1° provides financial planning consultations without having one of the statutes provided for in this Act;
2° does not comply with the provisions of Article 7;
3° does not comply with the provisions of articles 18 or 22, paragraphs 1er and 2.
§ 2. Without prejudice to the application of more severe penalties provided for in the Criminal Code, a penalty of imprisonment for eight days to three months and a fine of 200 euros to 2,000 euros or only one of those penalties, which, in a fraudulent intention:
1° fails to communicate to the MSDS any changes to the information that are part of its registration record in accordance with the provisions of Chapter II;
2° fails to provide the FSMA with information required under sections 16 or 17;
3° does not comply with the provisions of articles 22, paragraph 3, or 23.
§ 3. Any person who refuses to provide the information and documents requested by the MSDS for the control of the application of this Act and the orders and regulations made for the execution of the Act or who opposes the investigative measures taken by the MSDS or who makes a false statement is liable to imprisonment for eight to fifteen days and to a fine of 100 euros to 1,000 euros or only one of these penalties.
§ 4. Persons convicted of one of the offences referred to in paragraphs 1er to 3 may be subject to the final or provisional closure of any part or all premises assigned to the provision of financial planning consultations.
§ 5. All provisions of Book I of the Criminal Code, including Chapter VII and Article 85, are applicable to offences covered by this Act.
CHAPTER VII. - Amendments, entry into force
and transitional measures
Art. 41. Article 2, paragraph 1er, 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 Act of 27 November 2012, is supplemented by a 22° written as follows:
"22° the independent financial planners covered by the Act of 25 April 2014 relating to the status and control of independent financial planners and the provision of financial planning consultations by regulated companies. "
Art. 42. In article 16, paragraph 3, of the same law, inserted by the law of 18 January 2010, the words "article 2, paragraph 1er, 4° to 15° " are each time replaced by the words "Article 2, paragraph 1er4° to 15° and 22°.
Art. 43. In article 19 of the same law, inserted by the law of 18 January 2010, the words "14° and 15°" are replaced by the words "14°, 15° and 22°".
Art. 44. In section 513 of the Corporate Code, last amended by the Act of 8 January 2012, subsection 2/1 is repealed.
Art. 45. Article 45, paragraph 1er, of the Financial Sector Supervision and Financial Services Act of August 2, 2002, replaced by the Royal Decree of March 3, 2011 and amended by the Act of November 13, 2011 and by the Act of July 30, 2013, the following amendments are made:
1° 2° is completed by an h point written as follows: "h. independent financial planners covered by the Act of April 25, 2014 relating to the status and control of independent financial planners and the provision of financial planning consultations by regulated companies";
2° on 3° is supplemented by a point i. written as follows: "i. the Act of 25 April 2014 on the Status and Control of Independent Financial Planners and the provision of financial planning consultations by regulated companies".
Art. 46. In section 72, § 3, of the Act, replaced by the Act of 2 July 2010 and amended by the Royal Decree of 3 March 2011 and by the Act of 30 July 2013, the following amendments are made:
1° paragraph 3 is supplemented by the following sentence:
"The persons concerned are, if possible, also informed of the decision of the sanctions commission by fax or electronically or against the delivery of an acknowledgement of receipt. ";
2° Paragraph 4 is replaced by the following:
" Immediately after the persons concerned have been informed of the decision, the Sanctions Commission shall make its decisions public in a nominative manner on the FSMA website, unless the publication is likely to seriously disrupt financial markets or cause disproportionate harm to the parties involved. In the latter case, the decision is published on the FSMA website in a non-nominative manner. In case of appeal against the sanction decision, this information is included in the publication or, if the appeal is filed after the initial publication, it is supplemented by that information. Any further information on the outcome of the appeal, including any decision that cancels the sanction decision, is also published. ".
Art. 47. Section 73bis of the Act, inserted by the Act of 30 July 2013, is supplemented by the following sentences:
"In the latter case, the decision is published on the FSMA website in a non-nominative manner. In case of appeal against the decision, this information is included in the publication or, if the appeal is filed after the initial publication, it is supplemented by that information. Any further information on the outcome of the appeal, including any decision that cancels the decision, is also published. ".
Art. 48. In article 121, § 6, of the same law, inserted by the law of 2 August 2002 and amended by the law of 23 May 2007 and by the royal decree of 3 March 2011, the following two sentences are inserted between the first sentence and the second sentence:
"The suspensive nature of the appeal is limited to the recovery of the offence or fine. The suspensive nature does not prevent the interference from being carried out and does not prevent publication from taking place in accordance with the applicable legal provisions. ".
Art. 49. The King shall exercise the powers conferred upon him by the provisions of this Act on a joint proposal by the Minister who has the Finance in his powers and by the Minister who has the Consumers in his powers.
Art. 50. § 1er. This Act comes into force on the first day of the sixth month following that of its publication in the Belgian Monitor.
Derogation from paragraph 1erArticles 44 and 46 to 48 come into force on the tenth day following that of their publication in the Belgian Monitor.
§ 2. Individuals and legal entities other than regulated companies that, on the date of entry into force of this Act, provide financial planning consultations to retail customers in Belgian territory are authorized to continue this activity on an interim basis until the FSMA has made a decision on the application for approval. The persons concerned shall, however, file a complete application for approval pursuant to section 5 within six months of the coming into force of this Act.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 25 April 2014.
PHILIPPE
By the King:
Deputy Prime Minister and Minister of Economy
and Consumers,
J. VANDE LANOTTE
Minister of Finance,
K. GEENS
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) House of Representatives (www.lachambre.be):
Documents: 53 - 3393
Full report: 26-27 March 2014
Senate (www.senate.be):
Documents: 5-2809
Annales du Senate : April 3, 2014