Law On The Status And Control Of Credit Institutions (1)

Original Language Title: Loi relative au statut et au contrôle des établissements de crédit (1)

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belgiquelex.be - Carrefour Bank of Legislation

25 AVRIL 2014. - Status and control of credit institutions (1)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
LIVRE Ier
CHAMP DEFINITIONS - GENERAL
PART Ier. - Scope of application
Article 1er. § 1er. Sections 242, 15° to 19° and 296 to 310, 378 and 379 of this Act regulate a matter referred to in Article 77 of the Constitution.
The other provisions of this Act, including its Annexes, regulate a matter referred to in Article 78 of the Constitution.
§ 2. The purpose of this Act is to regulate the establishment, activity and control of credit institutions operating in Belgium for the purpose of protecting public savings and the sound and efficient functioning of the financial system.
In this regard, it specifies the monitoring mission of the National Bank of Belgium, as the national competent authority, within the framework of the Single Monitoring Mechanism.
This Act provides for the transposition of Directive 2013/36/EU as well as the partial transfer, limited to credit institutions, of Directive 2011/89/EU of the European Parliament and of the Council of 16 November 2011 amending Directives 98/78/EC, 2002/87/EC, 2006/48/CE and 2009/138/EC with regard to the complementary monitoring of financial entities of financial conglomerates (Directive "FICOD I").
§ 3. Defined as a credit institution, Belgian or foreign companies whose activity is to receive money deposits or other repayable funds from the public and to allocate credits for their own account.
Art. 2. For the purposes of this Act, are not considered to be credit institutions:
1° the National Bank of Belgium, the European Central Bank and the anonymous public law company bpost;
2° companies that carry out capitalization transactions governed by the Act of 9 July 1975 on the control of insurance companies.
PART II. - Definitions
Art. 3. For the purposes of this Act and the decrees and regulations made for its execution, it shall be understood by:
1° the National Bank of Belgium, the body referred to in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium, below referred to as "the Bank";
2° MSU Regulation, Council Regulation (EU) No 1024/2013 of 15 October 2013 entrusting the European Central Bank with specific missions related to prudential control policies of credit institutions;
3° Single monitoring mechanism, MSU monitoring mechanism;
4° the supervisory authority, the Bank or the European Central Bank according to the ranges of competence provided by or under the MSU Regulation respecting the control of credit institutions;
5° Member State participating, a Member State whose currency is the euro or a Member State whose currency is not the euro but which has established close cooperation within the meaning of Article 7 of the MSU Regulation;
6° Non-participant Member State, a Member State whose currency is not the euro and has not established close cooperation within the meaning of Article 7 of MSU Regulation;
7° Directive 2013/36/EU, Directive of the European Parliament and of the Council of 26 June 2013 on access to credit institutions and prudential supervision of credit institutions and investment companies amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC;
8° Regulation No. 575/2013, Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 concerning prudential requirements for credit institutions and investment companies and amending Regulation (EU) No. 648/2012;
9° Member State, a State Party to the European Economic Area Agreement (EEA);
10° Competent authority, public authority or body officially recognized by the national law of a Member State pursuant to Directive 2013/36/EU, which is empowered under this national right to monitor credit institutions and investment enterprises within the framework of the monitoring system of that State and, where appropriate, the European Central Bank under its competence under the Single Monitoring Mechanism;
11° third country, a State that is not a party to the European Economic Area Agreement;
12° third country authority, authority in charge of the control of credit institutions and investment companies in a third country;
13° Consolidated Monitoring Authority, the Competent Authority responsible for the consolidated monitoring of parent credit institutions in the EEA and credit institutions controlled by a parent financial company in the EEA or a parent joint financial company in the EEA;
14° Regulation No. 1093/2010, Regulation No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No. 716/2009/EC and repealing Decision 2009/78/EC of the Commission;
15° European Banking Authority, the European Banking Authority established by Regulation No. 1093/2010, below, also the "ABE";
16° Regulation No. 1092/2010, Regulation (EU) No. 1092/2010 of the European Parliament and Council of 24 November 2010 on the macroprudential monitoring of the financial system in the European Union and establishing a European Committee on Systemic Risk;
17° CERS, the European Committee for Systemic Risk created by Regulation (EU) No 1092/2010;
18° stability of the financial system, a situation in which the probability of discontinuity or disruption of the operation of the financial system is low or, if such disruptions were to occur, their impact on the economy would be limited;
19° European Financial Market Authority, the European Financial Markets Authority established by Regulation No. 1095/2010 of the European Parliament and the Council of 24 November 2010 establishing a European Monitoring Authority (European Financial Markets Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/77/EC;
20th Act of 2 August 2002, the Financial Sector Supervision and Financial Services Act of 2 August 2002;
21° the Authority of Financial Services and Markets, the agency referred to in section 44 of the Act of 2 August 2002, below referred to as "the MSDS";
22° Guarantee Fund, the Financial Services Guarantee Fund established by Article 3 of the Royal Decree of November 14, 2008 implementing the Act of October 15, 2008 on measures to promote financial stability and, in particular, establishing a State guarantee relating to the credits granted and other transactions carried out in the context of financial stability, with respect to the guarantee of financial services, and amending the Act of August 2, 2002 on the supervision of the financial sector and
23° Act of 22 February 1998 establishing the organic status of the National Bank of Belgium;
24th Act of 6 April 1995, the Act of 6 April 1995 on the Status and Control of Investment Companies;
25° financial instruments, the instruments referred to in Article 2, paragraph 1er1°, of the law of 2 August 2002;
26° the notions of control, participation, link of participation, parent company, subsidiary and related company, the meaning conferred upon them by the decrees of execution of Article 106, § 1erof this Act;
27° close links :
(a) a situation in which there is a link of participation or
(b) a situation in which companies are related or
(c) a relationship of the same nature as under (a) and (b) above between a natural person and a legal person;
28° Qualified participation, direct or indirect detention of at least 10 p.c. of the capital of a corporation or of the voting rights attached to the securities issued by that corporation, or any other opportunity to exert a significant influence on the management of the corporation in which an interest is held; the calculation of voting rights is established in accordance with the provisions of the Act of 2 May 2007 on the advertisement of significant participations, as well as those of its enforcement orders; is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition;
29° systemic credit establishment, a credit institution referred to in section 12 of Schedule IV to this Act;
30° significant credit institution, a credit institution that meets one of the following conditions:
(a) a systemic credit facility;
(b) a credit institution whose total balance sheet exceeds 3 billion euros.
The supervisory authority may decide that a credit institution meeting the condition referred to in (b) does not have a significant quality of credit establishment because of its size, internal organization and the nature, extent, complexity and cross-border nature of its activities;
31° insurance company, a company referred to in Article 2, § 1er the Act of 9 July 1975 on the control of insurance companies;
32° reinsurance company, a company referred to in section 3 of the Reinsurance Act of 16 February 2009;
33° investment company, an investment company within the meaning of Article 44 of the Act of 6 April 1995;
34° collective investment organization, a collective investment agency within the meaning of Article 3, 1° of the Act of 3 August 2012 on collective investment organizations meeting the requirements of Directive 2009/65/EC and on debt-referring institutions;
35° collective investment organization management company, a collective investment organization management company within the meaning of Article 3, 12° of the Act of 3 August 2012 relating to collective investment organizations meeting the requirements of Directive 2009/65/EC and to debt management agencies;
36° alternative collective investment organizations or "OPCA", collective investment organizations, including their investment compartments,
(a) that raise capital from a number of investors to invest them, in accordance with a defined investment policy, in the interest of these investors; and
(b) that do not meet the requirements of Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of legislative, regulatory and administrative provisions concerning certain securities collective investment bodies (VSF);
37° Manager of alternative collective investment organizations, a manager of alternative collective investment organizations within the meaning of section 3, 13° of the Act of April 19, 2014 on alternative collective investment organizations and their managers, below also "OPCA Manager";
38° financial company, a financial institution whose subsidiaries are exclusively or principally one or more credit institutions or financial institutions, at least one of these subsidiaries being a credit institution, and which is not a mixed financial company;
39° mixed financial company, a parent company, other than a regulated company, which is at the head of a financial conglomerate;
40° mixed company, a parent company other than a credit institution, a financial company or a mixed financial company, which has at least one credit institution among its subsidiaries;
41° financial institution, a company other than a credit institution, whose main activity consists of taking participations or carrying out one or more of the activities referred to in items 2 to 12 and 15 of the list resumed in section 4;
42° regulated business, a credit institution, an insurance company, a reinsurance company, an investment company, a collective investment management company, a manager of alternative collective investment organizations;
43° insurance holding company, an insurance holding company within the meaning of section 91bis, 9° of the Act of 9 July 1975 on the control of insurance companies;
44° joint insurance holding company, a joint insurance holding company within the meaning of section 91bis, 10° of the Act of 9 July 1975 on the control of insurance companies;
45° executive member of the legal body of administration, a member of the legal body of administration who participates in the effective management of the institution; is an executive member, the member of the legal body of administration who is a member of the steering committee or has been delegated daily management within the meaning of section 525 of the Corporate Code;
46° critical functions, the activities, services or operations of a credit institution whose interruption is likely, in Belgium or in one or more other Member States, to cause disruption of services essential to the real economy or to disrupt financial stability, due to the size, market share, internal and external interdependence, the complexity or cross-border activities of the credit institution or of the group of which it pays
47° independent control functions, internal audit function, compliance function (compliance) or risk management function referred to in section 35;
48° requirements of regulatory own funds, the requirements of clean funds under section 92 of Regulation No. 575/2013;
49° Category 1 core funds, Category 1 additional equity funds and Category 2 equity funds, the respective regulatory equity components of Part II, Part I, Chapters 2, 3 and 4 of Regulation No. 575/2013;
50° recovery plan, a plan developed by a credit institution in accordance with section 108;
51° resolution plan, a plan prepared by the resolution authority for a credit institution in accordance with Article 226;
52° Resolution authority, the Bank Resolution College referred to in section 21ter of the Act of 22 February 1998;
53° solvency, the ability of the resolution authority to resolve the failure of a credit facility;
54° instrument of resolution, instrument of assignment of activities, instrument of establishment-relais or instrument of separation of assets, as applicable;
55° resolution, the application of a resolution instrument to achieve one or more of the objectives set out in Article 243;
56° remediation measures, measures to preserve or restore the financial situation of a credit institution and which may affect the pre-existing rights of third parties. For the credit institutions referred to in Book II, these measures correspond to:
(a) the relevant instruments of resolution and powers of resolution referred to in Book II, Part VIII;
(b) the designation of a special commissioner referred to in section 236, § 1er, 1° ;
(c) the suspension or prohibition of all or part of the activities referred to in Article 236, § 1er, 4° ;
57° Remediation authorities, competent administrative or judicial authorities in the area of remediation measures. For the credit institutions referred to in Book II, these authorities are the resolution authority and the control authority with respect to their respective competence with respect to remediation measures;
58° Remediation Commissioner, any person or body appointed by a remediation authority to manage remediation measures;
59° liquidation procedure, a collective procedure opened and controlled by administrative or judicial authorities for the purpose of realizing the property of a credit institution under the supervision of these authorities. For the credit institutions referred to in Book II, such a procedure is the bankruptcy governed by the Bankruptcy Act of 8 August 1997;
60° liquidation, the realization of the assets of a credit institution according to a liquidation procedure;
61° liquidation authorities, competent administrative or judicial authorities in the matter of liquidation proceedings. For the credit institutions referred to in Book II, such authority shall be the same as the Commercial Court with respect to its bankruptcy jurisdiction;
62° liquidator, any person or body, including the curator, appointed by a liquidation authority to manage liquidation procedures;
63° strategic decision, a decision, as long as it is of some importance and therefore likely to have a more comprehensive impact on the establishment insofar as different functions of the credit institution would be affected or questioned as a result of such a decision, which concerns any investment, disinvestment, participation or strategic cooperation of the institution, in particular a decision to acquire or establish another institution, a joint venture The Bank, by regulation made under section 12bis, § 2 of the Act of 22 February 1998, may specify the decisions to be considered strategic within the meaning of this provision, taking into account, inter alia, the risk profile and nature of the activities of the establishments. It publishes these details;
64° branch, an operating seat that constitutes a party without a legal personality and that directly carries out, in whole or in part, the transactions inherent in the credit establishment activity; several operating seats created in the same State by an establishment with its head office in another State are considered to be a single branch;
65° branch of significant importance, a branch considered to be of significant importance in a Member State in accordance with Article 51, paragraph 1 of Directive 2013/36/EU;
66° Systematic internalizer, a credit institution that, in an organized, frequent and systematic manner, negotiates on its own behalf by executing customer orders outside a regulated market or a multilateral trading system (MTF);
67° exceptional financial support of the public authorities, any State aid, within the meaning of Article 107, paragraph 1, of the Treaty on the Functioning of the European Union, which is granted to a credit institution in order to preserve or restore the viability, liquidity or solvency of that credit institution;
68° insured deposits, deposits and debt securities issued by a credit institution that are covered by the Belgian deposit protection system referred to in Article 380, up to the level of coverage provided for in Article 382;
69° Eligible deposits, deposits which, under the applicable European directive, are not excluded from any refund by a deposit guarantee system because of their nature or the quality of the applicant;
70° working day, a day that is neither a Saturday, nor a Sunday, nor a legal holiday.
Art. 4. For mutual recognition organized by articles 86, 90 and 92 and Book III, Title Ierare taken into account the following activities:
(1) Receiving deposits or other repayable funds;
(2) Loans including consumer credit, mortgage credit, scaling up with or without recourse and financing of commercial transactions (including package);
(3) Bail charges;
4) Payment services within the meaning of section 4, 1°, of the Act of December 21, 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;
(5) Emission and management of other means of payment (e.g. travel cheques and letters of credit) to the extent that this activity is not covered by point 4);
(6) Provision of guarantees and subscription of commitments;
7) Transactions on behalf of the establishment or on behalf of its customers on:
(a) monetary market instruments (cheques, effects, deposit certificates, etc.)
(b) foreign exchange markets
(c) Future financial instruments and options
(d) instruments on currency or interest rates
(e) securities;
8) Participation in securities and related services;
9) Advice to companies on capital structure, industrial strategy and related matters and advice and services in the area of merger and buyback of businesses;
(10) Intermediation in interbank markets;
(11) Management or advice in heritage management;
(12) Conservation and administration of securities;
(13) Trade information;
(14) Rental of safes;
(15) Emission of electronic currency.
When paragraph 1er refers to the financial instruments, the services and activities referred to in section 46, 1 and 2 of the Act of 6 April 1995 fall within the scope of the mutual recognition regime provided for in this Act.
PART III. - Names reserved
CHAPTER Ier. - Names of credit institutions
Art. 5. Can only make public use in Belgium of the terms "credit institution", "bank", "bank", "saving bank", "saving cash" or "benefit bank" or more generally of the terms referring to the status of credit institution, in particular in their name, in the designation of their social object, in their titles, effects or documents or in their advertising:
1° credit institutions established in Belgium;
2° credit institutions under the law of another Member State operating in Belgium in accordance with Article 313;
3° representation offices referred to in Article 341;
4° credit institutions under the law of a third country which, without being established in Belgium, provide investment services on the basis of the law of 6 April 1995 and its enforcement orders.
However,
1st paragraph 1er is not applicable in terms of "bank" and "bank" terms, to the National Bank of Belgium, to the European Central Bank and to organizations of public international law of a bank nature, of which one or more of the Member States are members;
2° paragraph 1er is not applicable, with respect to the terms "credit institution", "bank", "saving bank", "saving cash" and "benefit bank", to credit institutions under a foreign and non-authorized right to make banking transactions in Belgium and that carry out public tenders of investment instruments or admissions of instruments of placement in negotiations on a regulated market within the meaning of the law of the 2006
3° the financial companies can use the term "bank" in the expression "bankholding" or in similar expressions, and the mixed financial companies can, on their part, make use of the term "bank" in the expression "bankholding" or in similar expressions.
In cases where there is a risk of confusion, the Bank may impose on credit institutions under foreign law entitled to use in Belgium the terms provided for in paragraph 1erthe addition to their name of an explanatory mention.
CHAPTER II. - Institutions
of credit authorized to issue covered bonds
Art. 6. § 1er. The names "covered bond Belgique" and "Belgische covered bond" can only be used for the titles issued in accordance with the provisions of Book II, Title II, Chapter 4, Section 3.
§ 2. The names "Belgische pandbrief" and "Belgische pandbrief" can only be used for titles that meet the conditions determined under Article 2, § 1er Appendix III.
LIVRE II
CREDIT OF BELGE LAW
PART Ier. - Access to activity
CHAPTER Ier. - Accreditation
Section Ire. - Accreditation requirement
Art. 7. Belgian law credit institutions that intend to operate in Belgium are required, before they begin their operations, to be aggregated, regardless of the other places of exercise of their activities.
Section II. - Procedure
Art. 8. The application for approval is submitted to the Bank, accompanied by an administrative record that meets the conditions established by the supervisory authority and in which the programme of activities, in particular the type and volume of operations envisaged, as well as the structure of the institution's organization and its close links with other persons, are indicated. Applicants must provide any information necessary to assess their application.
The control authority shall determine the conditions referred to in paragraph 1er taking into account the conditions that FSMA imposes in respect of the organization and the procedures under its control in accordance with Article 45, § 1erParagraph 1er, 3°, and § 2, of the law of 2 August 2002.
Art. 9. The applicant also communicates to the Bank the identity of natural or legal persons who, directly or indirectly, acting alone or in conjunction with others, hold in the capital of the credit institution a qualified participation, conferring or not the right to vote. The communication must include the indication of the quotities of capital and voting rights held by those persons. In the absence of qualified participation, the communication concerns the identity of the twenty main shareholders and their quotity in capital.
Art. 10. The Bank consults with the FSMA before deciding on the application for approval sought by an institution that is either the subsidiary of a portfolio management and investment consulting company, a manager of OPCA or a management company of collective investment bodies of Belgian law, or the subsidiary of the parent company of a portfolio management and investment consulting company, a manager of OPCA or a
a corporation that is controlled by an institution that is either the subsidiary of another credit institution, an insurance company, a reinsurance company, an investment company, an investment manager, or an insurance company
Similarly, the Bank consults with the authorities referred to in paragraph 1er or paragraph 2, for the purpose of assessing the required qualities of shareholders and directors in accordance with sections 18 and 19, where the shareholder is a business referred to in paragraph 1er or paragraph 2 and that the person participating in the direction of the credit facility shall also be in the direction of one of the undertakings referred to in paragraph 1er or paragraph 2. These authorities shall provide each other with any information relevant to the assessment of the qualifications required of the shareholders and persons participating in the management referred to in this paragraph.
Art. 11. § 1er. The supervisory authority shall decide on the application for approval by the MSDS with respect to:
1° the adequacy of the organization of the credit institution, including its integrity policy, as referred to in Articles 21 to 42, in the context of the respect of the rules referred to in Article 45, § 1erParagraph 1er3° and § 2 of the Act of 2 August 2002;
2° the professional honesty of persons called to be members of the legal body of administration of the credit establishment, the steering committee or, in the absence of a steering committee, of persons called to be in charge of the effective management, as well as of persons called to be responsible for independent oversight functions, if these persons are first proposed for such a function in a company under the control of the supervisory authority by 1998.
FSMA renders its opinion on the above-mentioned issues within fourteen days of receipt of the record referred to in section 8, which has been forwarded to it by the Bank, and no later than within the month of receipt of the notice request. The absence of an opinion within this period is considered to be a positive opinion. However, prior to the expiration of the one-month period, the ADMSP may inform the Bank that it will notify the Bank no later than 15 days after the expiry of that period.
§ 2. If the Bank does not take into account the ADMSP's opinion on matters referred to in paragraph 1erParagraph 1er, it refers to and mentions the reasons for the decision on the application for approval. The above-mentioned opinion of FSMA relating to paragraph 1 of paragraph 1erParagraph 1er is attached to the notification of the decision on the application for approval.
Art. 12. The Bank approves credit institutions meeting the conditions set out in Chapter II. She decides on the application within six months of the introduction of a complete file and, at the latest, within twelve months of receipt of the application.
The Bank can provide for sound and prudent management, including the approval of conditions for the exercise of some of the planned activities.
Without exceeding the time limits referred to in paragraph 1er, approval decisions are notified to applicants within fifteen days by registered letter to the position or with acknowledgement of receipt.
Art. 13. When a credit institution is approved, the Bank shall make available to the MSDS to enable it to exercise the powers referred to in Article 45, § 1er, 3°, and § 2, of the law of 2 August 2002, the information referred to in Article 8, as well as any modification to this information.
Art. 14. The supervisory authorities shall establish a list of credit institutions authorized under this Book. This list and the schedule referred to in paragraph 2 and all amendments made thereto are published on their website and notified to the European Banking Authority.
To the list is annexed the mention of the financial companies and mixed financial companies referred to in section 218. This annex and any amendments thereto are published on the website of the inspection authorities and notified in accordance with Article 218, paragraph 2.
CHAPTER II. - Accreditation conditions
Section Ire. - General
Art. 15. In addition to the conditions set out in this Chapter, the supervisory authority also takes into account the suitability of the requesting establishment to meet the conditions for the exercise of the activity referred to in Part II and to achieve its development objectives under the conditions that require the proper operation of the banking and financial system and the security of the depositors.
Section II. - Societal form
Art. 16. Belgian credit institutions must be constituted in the form of a commercial corporation, with the exception of the form of a private limited liability corporation constituted by a single person.
Section III. - Initial capital
Art. 17. Accreditation is subordinate to the existence of a capital of at least 6,200,000 euros.
The capital shall be fully released up to the minimum amount set out in paragraph 1er.
In the event of the applicant's pre-existence, the emission premiums, the reserves and the deferred result, excluding the re-evaluation gains, are assimilated to capital. However, it alone must rise to not less than 2,500 000 euros and be freed up to this amount.
Section IV. - Holders of capital
Art. 18. Accreditation is denied if the supervisory authority has reasons to consider that the natural or legal persons referred to in section 9 do not have the necessary qualities to ensure a sound and prudent management of the credit establishment.
Appreciation of the qualities required to ensure a sound and prudent management of the credit establishment is based on the following criteria:
(a) the reasonableness of the natural or legal persons referred to in Article 9;
(b) the professional honesty and expertise of any person referred to in section 19 who will manage the activities of the credit institution;
(c) the financial strength of the natural or legal persons referred to in section 9, including the type of activities carried out and envisaged in the credit facility;
(d) the ability of the credit institution to meet and continue to comply with the prudential obligations arising from this Act and the regulations made pursuant to it and Regulation No. 575/2013, in particular whether the group to which it belongs has a structure that allows for effective monitoring, to effectively exchange information between the competent authorities and to determine the sharing of responsibilities between the competent authorities;
(e) the existence of reasonable grounds to suspect that an operation or attempted transaction of money laundering or terrorist financing is in progress or would have been committed in the head of the natural or legal persons referred to in section 9 or that their capacity as shareholder of the credit institution could increase the risk of such transaction.
Section V.
Art. 19. § 1er. The members of the legal organ of the administration of credit institutions, the persons responsible for the effective management and the persons responsible for independent oversight functions are exclusively natural persons.
Persons referred to in paragraph 1er must always have the necessary professional honesty and expertise to exercise their function.
§ 2. The effective management of credit institutions must be entrusted to at least two physical persons.
Art. 20. § 1er. No person may act as a member of the legal body of administration, as a person responsible for the effective management or as a person responsible for an independent oversight function, persons who have been sentenced:
1° to a penalty for an offence referred to in Royal Decree No. 22 of 24 October 1934 relating to the judicial prohibition of certain convicted and failed to practise certain professions or activities;
2° to a penalty for offence:
(a) Article 348 of this Act;
(b) sections 42 to 45 of Royal Decree No. 185 of 9 July 1935 on the control of banks and the regime of securities emissions or section 104 of the Act of 22 March 1993 on the status and control of credit institutions;
(c) Articles 31 to 35 of the provisions relating to the control of private savings funds, coordinated on 23 June 1967;
(d) Sections 13-16 of the Public Savings Calls Act of 10 June 1964;
(e) Articles 100 to 112ter of Book I Title Ver the Commercial Code or sections 75, 76, 78, 150, 175, 176, 213 and 214 of the Financial Operations and Markets Act of 4 December 1990;
(f) in article 4 of Royal Decree No. 41 of 15 December 1934 protecting savings through the regulation of the temperament sale of batch values;
(g) Articles 18 to 23 of Royal Decree No. 43 of 15 December 1934 concerning the control of capitalization companies;
(h) Articles 200 to 209 of the Commercial Corporations Acts, coordinated on 30 November 1935;
(i) Articles 67 to 72 of Royal Decree No. 225 of 7 January 1936 regulating mortgages and arranging the control of mortgage companies, article 34 of the Law of 4 August 1992 on mortgage credit or articles XV.87, 3°, XV.90, 18° and 19°, XV.91, XV.126 and XV.126/1 of the Code of Economic Law;
(j) Articles 4 and 5 of Royal Decree No. 71 of 30 November 1939 concerning the bonding of securities and the demarcation of securities and goods and goods;
(k) in article 31 of Royal Decree No. 72 of 30 November 1939 regulating the exchanges and futures markets of goods and commodities, the profession of brokers and intermediaries dealing with these markets and the regime of the exception of play;
(l) Article 29 of the Act of 9 July 1957 regulating the sale of temperament and their financing, Article 101 of the Act of 12 June 1991 on consumer credit or Articles XV.87, 2°, XV.90, 1° to 16°, XV.91, XV.126 and XV.126/1 of Book XV of the Economic Law Code;
(m) in article 11 of Royal Decree No. 64 of 10 November 1967 organizing the status of portfolio corporations;
(n) sections 53 to 57 of the Act of 9 July 1975 on the control of insurance companies;
(o) to articles 11, 15, § 4, and 18 of the Act of 2 March 1989 on the advertisement of important participations in publicly traded companies and regulating public tenders;
(p) in section 139 of the Act of 25 June 1992 on the land insurance contract;
(q) section 15 of the Act of 27 March 1995 on the intermediation of insurance and reinsurance and the distribution of insurance;
(r) Articles 148 and 149 of the Act of 6 April 1995 relating to the status and control of investment enterprises;
(s) articles 345 to 349, 387 to 389, 433, 434, 647 to 653, 773, 788, 872, 873, 946 and 948 of the Code of Companies;
(t) Articles 38 to 43 of the Act of 2 August 2002;
(u) Article 25 of the Act of 22 April 2003 on public offers of securities;
(v) sections 286 to 292 of the Act of 3 August 2012 relating to certain forms of collective investment portfolio management, with respect to collective investment organizations that meet the requirements of Directive 2009/65/EC and debt-investment organizations;
(w) Article 14 of the Act of 14 December 2005 deleting titles to the holder;
(x) articles 151 to 153 of the Act of 27 October 2006 on the supervision of professional pension institutions;
(y) in section 69 of the Act of 16 June 2006 on public tenders for investment instruments and admissions of instruments for trading in regulated markets;
(z) section 21 of the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments;
z/1) to section 38 of the law of 1er April 2007 on public tenders for acquisition;
z/2) to section 26 of the Act of 2 May 2007 on the advertisement of significant participations in issuers whose shares are admitted to trading on a regulated market and bearing various provisions;
z/3) to section 75 of the Reinsurance Act of 16 February 2009;
z/4) to sections 368 to 375 of the Act of April 19, 2014 on alternative collective investment organizations and their managers;
3° to an administrative fine imposed by the Bank or FSMA for a breach:
(a) the articles referred to in section 348 of this Act;
(b) referred to in section 40 of the Act of 11 January 1993 on the prevention of the use of the financial system for money-laundering and the financing of terrorism;
(c) Articles 25 and 86 bis of the Act of 2 August 2002;
4° by a court or authority, if any administrative, foreign for an offence or breach similar to those provided for in 1°, 2° and 3°.
The King may adapt the provisions of this paragraph to align them with the laws that amend the texts listed therein.
§ 2. The prohibitions referred to in paragraph 1er duration
(a) twenty years for prison sentences greater than twelve months;
(b) ten years for other sentences of imprisonment or fine, and in the event of a suspended sentence.
Section VI. - Organization
Sub-section Ire. - General principles
Art. 21. § 1er. A credit institution must have a strong and adequate corporate organization system, including monitoring measures, to ensure effective and prudent management of the facility, including:
1° an adequate management structure based, at the highest level, on a clear distinction between the effective direction of the establishment on the one hand, and control over that direction on the other, and providing, within the establishment, an adequate separation of functions and a mechanism for the attribution of responsibilities that is well defined, transparent and coherent;
2° an adequate administrative and accounting organization and internal control, including a control system providing a reasonable degree of certainty as to the reliability of the financial reporting process;
3° effective procedures for identifying, measuring, managing, monitoring and reporting risks to which the institution is likely to be exposed, including conflict of interest prevention;
4° of appropriate independent internal audit, risk management and compliance (compliance) functions;
5° adequate integrity policy;
6° a compensation policy that ensures sound and effective risk management, preventing risk taking over the level of tolerance set by the establishment;
7° of control and security mechanisms in the computer field appropriate to the operation of the facility;
8° an adequate internal alert system, including a specific, independent and autonomous transmission mode, of breaches of the establishment's standards and codes of conduct;
9° the establishment of adequate business continuity measures to ensure the maintenance of critical functions or their recovery as soon as possible and, without prejudice to the specific requirements for services and investment activities, the resumption within a reasonable time of the provision of the usual services and the exercise of normal activities.
§ 2. Organizational arrangements referred to in paragraph 1er are comprehensive and appropriate to the nature, scale and complexity of the risks inherent in the business model and the activities of the establishment.
§ 3. Each credit institution shall establish a memorandum of governance which shall include for the institution concerned and, where appropriate, the group or subgroup of which it is the parent business, the entire internal organizational structure referred to in paragraph 1er.
If the credit facility is part of a group under the control of the control authority, the memorandum established at the level of the credit institution may be part of the memorandum of that group.
§ 4. The provisions of sub-sections II to V, articles 67 to 70 and Annexes I and II specify in particular areas the scope of the general obligations referred to in paragraphs 1er and 2.
Art. 22. If there are close links between the credit institution and other natural or legal persons, or if the credit institution is a member of a group, these links or the legal structure of the group cannot hinder the exercise of an individual or consolidated prudential control of the institution.
If the credit institution has close ties with a natural or legal person under the law of a third country, the legislative, regulatory and administrative provisions applicable to that person or their implementation may not hinder the exercise of an individual or consolidated prudential control of the institution.
Sub-section II. - Societal bodies
Art. 23. The legal body of administration assumes overall responsibility for the credit institution.
To this end, the legal body of administration defines and supervises, including
1° the strategy and objectives of the establishment;
2° the risk policy, including the level of risk tolerance referred to in section 57.
The legal body of administration approves the memorandum of governance of the credit institution referred to in Article 21, § 3.
Art. 24. § 1er. The credit institutions constituted in the form of an anonymous corporation shall establish a steering committee within the meaning of section 524bis of the Code of Companies exclusively composed of members of the board of directors, to which are delegated all the management powers of the board of directors. However, this delegation may not focus on the determination of general policy or on acts reserved for the board of directors by the other provisions of the Code of Companies or by this Act.
§ 2. The Board of Directors has a majority of directors who are not members of the steering committee.
§ 3. The functions of chair of the board of directors and chair of the steering committee are performed by different people.
§ 4. The day-to-day management referred to in section 525 of the Corporate Code cannot be entrusted to a non-executive member of the Board of Directors.
Art. 25. § 1er. The statutes of the credit institutions constituted in another form than that of anonymous society provide for the constitution, within the legal organ of administration, of an organ, exclusively composed of members of the legal organ of administration, called "management committee", to which are delegated all the powers of management of the legal organ of administration excluding the determination of the general policy, of the acts reserved to the legal organ of administration
§ 2. The legal body of administration has a majority of members who are not members of the steering committee referred to in paragraph 1er.
§ 3. The functions of chair of the legal body of administration and chair of the steering committee are performed by different people.
§ 4. The day-to-day management, when provided for in the Code of Societies for the relevant form, cannot be entrusted to a non-executive member of the legal body of administration.
Art. 26. The control authority may, depending on the size and risk profile of a credit institution, authorize the credit institution to derogate, in whole or in part, from the obligations set out in sections 24 and 25.
The exemption may include:
1° on the obligation to form a steering committee, without prejudice to Article 19, § 2;
2° on the composition of the steering committee, allowing members of persons who are not members of the legal body of administration; Articles 19, 20 and 60 and 14 to 18 of Appendix II apply to them;
3° on a cumulative role of chair of the steering committee and chair of the legal organ of administration.
Sub-section III. - Establishment of committees
within the legal body of administration
Art. 27. Without prejudice to the missions of the legal body of administration, the credit institutions are, within this body, the following committees:
1st an audit committee;
2° a risk committee;
3° a compensation committee;
4th an appointment committee,
composed exclusively of members of the legal board of directors who are not executive members and of which at least one member is independent within the meaning of Article 526ter of the Code of Companies, a member who cannot sit in more than two of the above committees.
Art. 28. § 1er. In addition to the requirements set out in section 27, members of the audit committee have a collective competence in the area of activities of the credit institution concerned and in the area of accounting and auditing, and at least one member of the audit committee is competent in accounting and/or auditing.
§ 2. The audit committee is at least responsible for:
1° Follow-up to the financial information development process;
2° monitoring the effectiveness of the internal control and risk management systems of the credit establishment;
3° followed by the internal audit and its activities;
4th monitoring of the legal control of annual accounts and consolidated accounts, including the follow-up to the issues and recommendations of the authorized Commissioner;
5° review and follow-up to the independence of the authorized commissioner, in particular with regard to the provision of additional services to the credit institution or to a person with whom it has a close connection.
The audit committee shall report regularly to the legal body of administration on the exercise of its duties, at least at the time of the establishment by it of the annual and consolidated accounts and the periodic reports referred to in section 106 respectively transmitted by the credit institution at the end of the social year and at the end of the first social semester.
The Bank may, by regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998, specify and supplement on technical points the items listed in the list reproduced in this paragraph.
§ 3. The Approved Commissioner:
1° communicates to the audit committee each year the additional services provided to the credit institution and to the companies with which the credit institution has a close connection;
2° discusses with the audit committee the risks to its independence and the safeguards taken to mitigate these risks, recorded by the audit committee;
3° confirms each year in writing its independence to the audit committee in relation to the credit establishment.
Art. 29. § 1er. The members of the Risk Committee individually have the knowledge, skills, experience and skills to enable them to understand and understand the strategy and level of risk tolerance for the establishment.
§ 2. The Risk Committee advises the legal body of administration on aspects related to the strategy and level of risk tolerance, both current and future. It assists the legal body of administration when it oversees the implementation of this strategy by the steering committee.
The risk committee ensures that the prices of assets and liabilities and categories of off-balance sheet products that are proposed to customers, take into account the risks the institution has incurred in relation to its business model and its risk strategy, including risks, in particular reputations, that may result from the types of products offered to customers. It presents an action plan to the legal body of administration when not.
§ 3. Without prejudice to the information referred to in Article 57, § 3, the Risk Committee shall determine the nature, volume, form and frequency of information concerning the risks to be transmitted to it. It has direct access to the facility's risk management function and external expert advice.
§ 4. In order to promote sound compensation practices and policies, the risk committee, without prejudice to the work of the compensation committee, examines whether the incentives provided by the compensation system take appropriate account of the risk control, equity needs and liquidity position of the institution, as well as the likelihood and timing of the profit time.
Art. 30. § 1er. The compensation committee is composed in such a way that it can exercise a relevant and independent judgment on compensation policies and practices and on incentives created in terms of risk control, equity needs and liquidity position.
§ 2. The compensation committee shall issue an opinion on the compensation policy to be adopted by the legal body of administration and any amendments thereto.
§ 3. The Compensation Committee is responsible for the preparation of compensation decisions, including those that have an impact on risk and risk management in the credit establishment concerned and on which the legal body of administration is required to make a decision. In preparing these decisions, the compensation committee shall take into account the long-term interests of shareholders, investors and other stakeholders in the credit establishment and the public interest.
Paragraph 1er is also applicable to decisions concerning the remuneration of persons in charge of independent oversight functions. In addition, the Compensation Committee provides direct supervision with respect to remuneration for independent supervisory officers.
Art. 31. § 1er. The appointing committee is composed in such a way that it can exercise a relevant and independent judgment on the composition and functioning of the institution's administrative and management bodies, in particular on the individual and collective expertise of their members and on the integrity, reputation, independence of mind and the availability of their members.
§ 2. The Appointment Committee:
1° identifies and recommends, for approval by the General Assembly or, where appropriate, by the legal body of administration, candidates capable of occupying vacancies within the legal body of administration, assesses the balance of knowledge, skills, diversity and experience within the legal body of administration, develops a description of the missions and qualifications related to a particular appointment and assesses the time to devote to these functions.
The appointing committee also sets out an objective to be achieved with respect to the representation of underrepresented sex within the legal body of administration and develops a policy to increase the number of representatives of that gender in order to achieve this objective. The objective and plan, as well as the terms and conditions of its implementation, shall be made public in accordance with Article 435, paragraph 2 (c) of Regulation No. 575/2013;
2° periodically assesses, and at least once a year, the structure, size, composition and performance of the legal body of administration and submits recommendations with respect to possible changes;
3° periodically assesses, and at least once a year, knowledge, skills, experience, degree of involvement, including attendance, members of the legal body of administration, both individually and collectively, and reports to that body;
4° periodically reviews the policies of the legal body of administration in the selection and appointment of the executive members of the board, and makes recommendations to the legal body of administration.
In carrying out its duties, the Appointment Committee shall ensure that decision-making within the legal body of administration is not dominated by a person or a small group of persons, in a manner that is harmful to the interests of the establishment as a whole.
The appointing committee may use any type of resource that it considers appropriate for the performance of its mission, including external advice, and shall be provided with appropriate financial resources to that effect.
Art. 32. Sections 27, 28 and 30 are without prejudice to the provisions of the Code of Societies relating to the audit committee and compensation committee within listed companies as defined in section 4 of the Code.
Art. 33. § 1er. Credit institutions that are not of significant importance are exempt from establishing, within their legal body of administration, the two committees referred to in Articles 30 and 31. Those who are not of significant importance under section 3, 30, (b), may, in addition, provide that a single committee shall carry out the duties of the committees referred to in sections 28 and 29.
§ 2. The supervisory authority may, in respect of the credit institutions that are subsidiary or sub-partners of a joint financial company, an insurance company, a financial company, another credit institution, an insurance company, a reinsurance company, an investment company or a management corporation of collective investment organizations, grant, in whole or in part
Art. 34. If, pursuant to Article 33, § 1er, the committees referred to in sections 30 and 31 are not constituted, the functions assigned to these committees must then be exercised by the legal body of administration as a whole. When, following an exemption granted under section 26, the president of the legal body of administration is an executive member, he or she does not preside over the legal body of administration when acting as one of the committees referred to in section 27.
Sub-section IV. - Functions
Independent operational oversight
Art. 35. § 1er. Credit institutions shall take the necessary measures to maintain the following independent oversight functions:
(a) compliance (compliance);
(b) Risk management;
(c) internal audit,
the persons who carry out the exercise are independent of the operational units of the establishment and have the necessary prerogatives for the proper performance of their functions. The remuneration of these persons is based on the achievement of the objectives related to their functions, regardless of the performance of the areas of controlled activities.
§ 2. In its assessment of the adequacy of the functions referred to in paragraph 1erthe control authority shall take into account the provisions of Article 21, § 2.
Art. 36. § 1er. Credit institutions have a compliance function (compliance) designed to ensure compliance by the institution with the members of its legal body of administration, its actual executives, its employees, its related agents and agents, the legal and regulatory rules of integrity and conduct that apply to banking activity.
Paragraph 1er does not prejudice the provisions of section 87bis of the Act of 2 August 2002.
§ 2. Persons who perform the compliance function (compliance) report to the legal body of administration at least once a year.
Art. 37. § 1er. Credit institutions have an adequate risk management function, independent of operational functions, with sufficient authority, status and resources, as well as direct access to the legal body of administration.
§ 2. People who perform the risk management function ensure that all significant risks are detected, measured and correctly declared. They are actively involved in the development of the institution's risk strategy and all management decisions that have a significant risk impact and can provide a complete overview of the entire range of risks to which the establishment is exposed.
§ 3. The risk management function is headed by a member of the steering committee, the only particular function for which he is individually responsible. Where the credit institution is not of significant importance within the meaning of section 3, 30°, the control authority may authorize a member of the institution's staff as part of the senior management to assume that function provided that there is no conflict of interest in the principal.
Derogation from paragraph 1er, first sentence, the supervisory authority may, with a view to strengthening the autonomy and independence of the risk and compliance management (compliance) functions referred to in section 36, authorize that the member of the management committee responsible for the risk management function also be responsible for the compliance function, provided that the performance of the two functions is maintained separately.
Art. 38. Managers of risk management and compliance functions (compliance) may report directly, if any, through the risk committee, to the legal body of administration, without referring to the steering committee, and may raise concerns and advise, where appropriate, in the event of changes in risks affecting or likely to affect the establishment, including damage to its reputation.
Paragraph 1er shall not prejudice the responsibilities of the legal body of administration under this Act and Regulation No. 575/2013.
Art. 39. § 1er. Credit institutions guarantee in an audit charter, at a minimum, the independence of the internal audit function and the extent of its missions to any activity and entity of the establishment, including in the event of subcontracting.
§ 2. The purpose of the internal audit function is to provide an independent assessment of the quality and efficiency of the internal control, risk management and governance arrangements of the credit institution to the legal administrative body and steering committee.
§ 3. The internal audit function reports directly to the legal body of administration, if applicable through the audit committee, with information from the steering committee.
Art. 40. The Bank may, without prejudice to the provisions of sections 35 to 39, specify, by way of regulation made under section 12bis, § 2 of the Act of 22 February 1998, what must be heard by adequate management structure, adequate internal control, adequate independent internal audit function, adequate independent risk management function and, on the advice of the MSDS, adequate independent compliance function, and develop more precise rules.
Sub-section V. - Specific Organization
related to the provision of investment services
Art. 41. § 1er. Appropriate policies and procedures are in place to ensure compliance by the institution with its directors, its effective officers, employees, agents and agents, with legal provisions relating to investment services and activities.
They shall develop appropriate rules for personal, direct and indirect transactions made on financial instruments by persons referred to in paragraph 1er.
§ 2. The King, on the advice of FSMA and the Bank, specifies the rules and obligations referred to in paragraph 1er. These rules and obligations may include:
- the persons concerned to whom these rules and obligations are applicable;
- personal transactions that are deemed to be contrary to the law;
- the terms under which the persons concerned are required to notify their personal transactions to the credit institution;
- how credit institutions must maintain a registration of personal transactions.
Art. 42. § 1er. Credit institutions take appropriate organizational and administrative measures to prevent conflicts of interest relating to investment services and activities from occurring between the institution, its directors, its effective officers, its employees and its related agents and agents, or any business that is related to it, on the one hand, and its clients, on the other hand, or among its customers themselves, from affecting the interests of the latter.
§ 2. The King, on the advice of FSMA and the Bank, specifies the rules and obligations in this regard. These rules and obligations may include the organizational rules to be followed in order to prevent conflicts of interest, as well as when the credit establishment produces and disseminates investment research.
Section VII. - Central Administration
Art. 43. The central administration of the credit establishment must be established in Belgium.
Section VIII. - Protection of deposits
Art. 44. The credit institution must adhere to a collective deposit protection system in accordance with section 380 of this Act.
PART II. - Operating conditions of activity
CHAPTER Ier. - General
Art. 45. Credit institutions must always meet the conditions provided for by or under sections 15 to 44 of this Act.
CHAPTER II. - Changes in the capital structure
Art. 46. Without prejudice to Article 17 and the Act of 2 May 2007 relating to the advertisement of important participations, any natural or legal person acting alone or in conjunction with others, who has made the decision either to acquire, directly or indirectly, a qualified interest in a Belgian credit institution, or to make, directly or indirectly, an increase of that qualified interest in a Belgian credit institution, in such a way that the share of voting rights or
The Bank publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the acquirer candidate and the intended acquisition, which are necessary to conduct the evaluation and which must be communicated to the Bank at the time of notification referred to in paragraph 1er.
Art. 47. Severely, and in any event within two business days after receipt of the notification and complete information referred to in section 46, and after possible subsequent receipt of the information referred to in paragraph 3, the Bank shall acknowledge receipt in writing to the applicant acquirer. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the Bank for the purposes of the assessment referred to in section 48 shall not exceed sixty working days from the date of receipt of the notification and all required documents on the basis of the list referred to in section 46, paragraph 2.
During the assessment period, the Bank may request additional information to complete its assessment by the fiftieth working day of the evaluation period. This request is made in writing and specifies the necessary additional information.
During the period between the date of the Bank's request for information and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. The Bank may make, beyond the deadline set in accordance with the preceding paragraph, other requests to collect additional information or clarifications, but these requests do not, however, result in a suspension of the assessment period.
The Bank may extend the suspension referred to in paragraph 4 to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the recipient candidate is a natural or legal person who is not subject to oversight under directives 2013/36/EU, 2009/65/EC of the European Parliament and the Council of 13 July 2009 coordinating the legislative, regulatory and administrative provisions concerning certain securities collective investment bodies (OPCVM), Directive 2011/61/EU of the European Parliament and Council of 8 June 2011 on alternative investment managers and amending the regulations 2003/41/EC
Art. 48. In assessing the notification and information referred to in section 46 and the additional information referred to in section 47, the Bank appreciates, in order to ensure a sound and prudent management of the credit establishment referred to in the proposed acquisition and taking into account the likely influence of the acquirer candidate on the credit establishment, the appropriateness of the acquirer candidate and the financial strength of the proposed acquisition by applying all of the criteria referred to in paragraph 2.
The Bank may, within the course of the assessment period referred to in section 47, object to the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in section 18, paragraph 2, that the applicant acquires the necessary qualities to ensure a sound and prudent management of the credit establishment or if the information provided by the applicant acquires is incomplete.
If the Bank decides, at the end of the evaluation, to oppose the proposed acquisition, it shall notify the applicant in writing, within two business days and without exceeding the evaluation period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the evaluation period, the Bank did not object to the proposed acquisition, it is deemed to be approved.
The Bank may set a maximum time limit for the conclusion of the proposed acquisition and, if necessary, extend it.
Art. 49. The Bank shall conduct the assessment referred to in section 48 in close consultation with any other authority concerned, or, as the case may be, in consultation with the MSDS, if the applicant acquires:
(a) a credit institution, an insurance company, a reinsurance company, an investment company, an OPCA manager or a collective investment organization management corporation approved under the law of another Member State, or, as the case may be, by the FSMA;
(b) the parent company of a company with one of the qualities referred to in (a);
(c) a natural or legal person controlling a company having one of the qualities referred to in (a).
To this end, the Bank shall, as soon as possible, exchange with these authorities any essential or relevant information for the evaluation. In this context, it shall, upon request, communicate any relevant information and, on its own initiative, any essential information. In the cases referred to in paragraph 1erany decision of the Bank mentions any notices or reservations made by the competent authority responsible for the applicant acquirer or, as the case may be, by the MSDS.
Art. 50. Any natural or legal person who has made the decision to stop holding, directly or indirectly, qualified participation in a credit institution shall notify the Bank in writing beforehand and shall communicate the amount of the interest to the Bank. Such a person shall also notify the Bank of its decision to reduce its qualified participation in such a way that the proportion of voting rights or held capital shares falls below the thresholds of 20%, 30% or 50%, or that the credit institution ceases to be its subsidiary.
Art. 51. In the event of forbearance to make the prior notifications prescribed by sections 46 or 50 or in the event of the acquisition or increase of an interest in spite of the opposition referred to in section 48, the President of the Commercial Court in whose jurisdiction the credit institution has its seat, deciding as a reference, may take the measures referred to in Article 516, § 1er and 4 of the Corporate Code.
The procedure is initiated by a quotation from the Bank.
Article 516, § 3, of the Corporate Code is applicable.
Art. 52. Without prejudice to Article 17 and the Act of 2 May 2007 relating to the advertisement of important participations, any natural or legal person acting alone or in conjunction with others, who has acquired, directly or indirectly, an interest in a Belgian credit institution, or who has made, directly or indirectly, an increase in his or her participation in a Belgian credit institution, in such a way that the proportion of voting rights or shares of held capital exceeds
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or in concert with other persons, an interest of more than 5% of the capital or voting rights of a credit institution, which did not constitute qualified participation.
Notifications referred to in subparagraphs 1er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of, and the percentage of the voting rights and capital of the credit institution held after the acquisition or assignment, as well as the necessary information that is published by the Bank on its website in accordance with Article 48, paragraph 2.
Art. 53. Credit institutions shall communicate to the Bank, as soon as they are aware, the acquisitions or disposition of their securities or shares that make one of the thresholds referred to in section 46.
Similarly, they shall immediately communicate to the Bank any information that they are aware of, in a manner that influences the situation of their shareholders or associates with respect to the valuation criteria referred to in Article 18, paragraph 2. The same obligation of information lies with the persons referred to in Article 9.
Under the same conditions and at least once a year, they communicate to the Bank the identity of shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and that of voting rights so held. They also communicate to the Bank the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Code of Companies in cases where the Articles of Association do not prescribe their declaration to the Bank.
Art. 54. Where the Bank has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in a credit facility is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, 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; the Bank 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 Bank may order the sequestration of the rights of partners from any institution or person it determines. The receiver informs the credit institution that accordingly amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of sound and prudent management of the credit institution and in the interest of the holder of the rights of partners 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 remuneration of the receiver is fixed by the Bank and is borne by the holder mentioned above. The receiver may charge such remuneration on the amounts paid to it as a receiver or by 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 Bank, 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.
CHAPTER III. - General operating conditions
Section Ire. - Minimum equity
Art. 55. The equity of credit institutions shall not be less than the minimum capital amount established in accordance with Article 17, paragraphs 1er and 3.
Reimbursement of capital may not be effected, including in the form of reimbursement of co-operator shares, if the establishment would no longer meet the requirements for equity established under the provisions of Chapter V or the additional requirements for the matter established by or under the provisions of Part III, Chapter 1.
Section II. - Leadership and leadership
Sub-section Ire. - Control
and assessment by the legal body of administration
Art. 56. § 1er. The legal body of administration periodically assesses, and at least once a year, the effectiveness of the facility's organizational arrangements referred to in section 21 and their compliance with legal and regulatory obligations. It ensures that the steering committee takes the necessary steps to address any deficiencies.
§ 2. The legal body of administration exercises effective control over the steering committee and oversees the decisions taken by the management committee and the effective management of the institution.
§ 3. In particular, the legal body of administration assesses the proper functioning of the independent control functions referred to in section 35.
§ 4. The annual report of the legal body of administration justifies the individual and collective competence of the members of the committees referred to in sections 27 to 31.
§ 5. The legal body of administration regularly adopts and evaluates, and at least once a year, the general principles of compensation policy and ensures the monitoring of its implementation. As part of this assessment, it may use independent oversight functions.
§ 6. The legal body of administration shall ensure the update of the governance memorandum referred to in Article 21, § 3, and the transmission to the control authority of the updated governance memorandum.
Art. 57. § 1er. As part of its duties referred to in Article 23, the legal body of administration sets the level of tolerance to the risk of credit establishment for all activities carried out.
To this end, the legal body of administration regularly approves and reviews strategies and policies governing the taking, management, monitoring and mitigating of risks to which the credit institution is or could be exposed, including the risks generated by the macroeconomic environment in which it operates, taking into account the state of the economic cycle.
The establishment's level of risk tolerance for all relevant activities is communicated to the control authority, which is kept informed of the changes to the establishment.
§ 2. The legal body of administration devotes a significant share of its activities to the monitoring of the management of all significant risks, in particular those under Regulation No. 575/2013, to the assessment of assets and the use of external credit ratings and internal models related to these risks, and ensures that adequate resources are devoted to these aspects.
§ 3. The management committee and the persons responsible for the effective management communicate to the legal body of administration the appropriate information relating to all significant risks, management policies and control of the significant risks of the establishment and the changes made to them.
§ 4. The legal authority shall, in the definition of its risk management policy, ensure that the criteria on which the risk of credit and counterparty arising out of transactions must be considered as a major, requiring that such transactions and important decisions relating thereto be expressly disclosed, within a time limit allowing the legal body of administration, if any, to oppose them.
§ 5. The legal body of administration approves the liquidity recovery plan referred to in Article 8, § 8, of Appendix I to this Act and ensures that the internal policies and procedures of the establishment are adapted accordingly.
Art. 58. § 1er. The legal authority ensures the integrity of financial reporting and accounting systems, including operational and financial control systems. It assesses the operation of internal control at least once a year and ensures that this control provides a reasonable degree of certainty as to the reliability of the financial reporting process, so that annual accounts and financial information are consistent with the existing accounting regulations.
§ 2. The legal authority oversees the publication and communication process required by or under this Act or Regulation No. 575/2013.
Sub-section II. - Actions to be taken by the steering committee
Art. 59. § 1er. Without prejudice to the powers vested in the legal body of administration and under its supervision, the steering committee shall take the necessary measures to ensure the respect and implementation of the provisions of Article 21.
§ 2. The steering committee shall report at least once a year to the legal body of administration, the authorized commissioner and the supervisory authority on the assessment of the effectiveness of the organizational arrangements referred to in section 21 and the measures taken, if any, to remedy the deficiencies that would have been found. The report justifies how these measures meet the legal and regulatory requirements.
§ 3. Without prejudice to his other duties, he ensures that the compensation policy adopted by the legal body of administration is properly implemented.
§ 4. The steering committee also implements the necessary measures to ensure risk control, referred to in section 1er 9 of Schedule I to this Act by the credit institution.
Sub-section III. - Appointments,
resignations and exercise of external functions
Art. 60. § 1er. The credit institutions shall inform the supervisory authority of the proposal for the appointment of members of the legal board of directors and members of the steering committee, or, in the absence of a steering committee, persons responsible for the effective management, as well as persons responsible for independent oversight functions.
As part of the information required under paragraph 1er, credit institutions communicate to the supervisory authority all documents and information allowing it to assess whether the persons whose appointment is proposed have the necessary professional honourability and expertise to exercise their functions in accordance with section 19.
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.
§ 2. Appointment of persons referred to in paragraph 1er is subject to prior approval by the control authority.
When it comes to the appointment of a person who is first proposed to a function referred to in subsection 1er to a company that is under the control of the supervisory authority pursuant to section 36/2 of the Act of 22 February 1998 or the MSU Regulations, the Bank consults with FSMA beforehand.
FSMA shall notify the Bank within one week of receipt of the notice request.
§ 3. Credit institutions shall inform the supervisory authority of the possible division of duties between the members of the legal board of directors, between the members of the steering committee or, in the absence of a steering committee, between the persons responsible for the effective management.
Significant changes in the division of duties referred to in paragraph 1ergive rise to the application of paragraphs 1er and 2.
Art. 61. Persons who are responsible for the independent oversight functions referred to in section 35 may not be removed from their duties without the prior consent of the legal body of administration.
The credit institution shall inform the supervisory authority beforehand.
Art. 62. § 1er. The members of the legal board of directors and, in the absence of a steering committee, the persons in charge of the effective management spend the time necessary to carry out their functions within the institution.
§ 2. Without prejudice to paragraph 1er and of section 21, members of the credit institution's organs and any persons who, under any name and in any capacity whatsoever, take part in their administration or management may, in representation or not of the credit institution, exercise the terms of office of an administrator or manager or take part in the administration or management within a business or in a commercial form, of a company of another form of Belgian or foreign law
§ 3. The external functions referred to in paragraph 2 are governed by internal rules that the credit institution must adopt and enforce in order to pursue the following objectives:
1° to prevent the exercise of these functions by persons participating in the effective management of the credit facility from impairing the availability required for the effective management exercise;
2° to prevent the occurrence of conflicts of interest and the risks associated with the exercise of these functions, in particular in relation to the initiation of such functions;
3° ensure adequate advertising of these functions.
The Bank sets out the terms and conditions of these obligations by regulation made under Article 12bis, § 2 of the Act of 22 February 1998.
§ 4. Social agents appointed upon presentation of the credit institution must be members of the credit institution steering committee or persons designated by the steering committee.
§ 5. Members of the legal board of directors who are not members of the board of directors of the credit establishment may not exercise a mandate in a corporation in which the establishment holds an interest only if they do not participate in the current management of that corporation. In addition, without prejudice to paragraphs 1er and 3, where the credit institution is of significant importance within the meaning of Article 3, 30°, the external functions referred to in paragraph 2 in other commercial companies are limited, except in the case that the term in the credit institution is exercised in representation of a Member State, in the following terms:
- three mandates that could not involve participation in current management; or
- either a mandate involving participation in current management and a mandate that cannot involve participation in current management.
§ 6. Members of the steering committee or, in the absence of a steering committee, persons who participate in the effective direction of the credit institution may not exercise a mandate that includes participation in current management only if it is a corporation referred to in section 89, paragraph 1er Regulation No. 575/2013, with which the credit institution has close ties, a statutory collective investment agency within the meaning of the Act of August 3, 2012 relating to collective investment organizations that meet the requirements of Directive 2009/65/EC and to credit agencies. In addition, without prejudice to paragraphs 1er and 3, where the credit institution is of significant importance within the meaning of Article 3, 30°, the external functions in other companies are limited to two terms that cannot involve participation in current management except in the case that the mandate within the credit institution is exercised in representation of a Member State.
§ 7. The supervisory authority may, in individual cases, grant an exemption from the maximum number of mandates provided for in paragraphs 5 and 6, by authorizing the possibility of additional terms not involving current management. The supervisory authority shall, on a regular basis, inform the European Banking Authority of its use of this derogation power.
§ 8. Credit institutions shall promptly notify the supervisory authority of the functions performed outside the credit facility by persons referred to in paragraph 2 for the purpose of monitoring compliance with the provisions of this Article.
§ 9. For the purposes of paragraphs 5, second sentence, and 6, second sentence, are considered to be a single mandate the exercise of several mandates, whether or not involving participation in current management, in companies that are part of the group of which the credit or group of which a company has a close relationship with the credit institution or its parent company.
For the purposes of this section, "group" means a set of enterprises consisting of a parent company, its subsidiaries, the enterprises in which the parent company or its subsidiaries hold direct or indirect participation within the meaning of Article 3, 26° of this Act, as well as companies that constitute a consortium and the enterprises controlled by the latter or in which they hold an interest within the meaning of Article 3, 26° of this Act.
For the purposes of paragraphs 5, second sentence, and 6, second sentence, the supervisory authority may specify, if any by regulation made under section 12bis of the Act of 22 February 1998, the conditions under which heritage societies must be considered commercial companies.
Section III. - Risk management
Sub-section Ire. - Risk treatment
Art. 63. Credit institutions ensure the control of their risks in accordance with the provisions set out in Appendix I to this Act.
Sub-section II. - Related risk management
to the provision of investment services
Art. 64. Credit institutions shall maintain a record of any investment service provided and any investment activity carried out, in order to allow the supervisory authority and the MSDS to verify whether the establishment complies with the provisions of this Act or has been made for its performance, as well as with the legal and regulatory provisions to which the ADMDS is responsible and, in particular, if it complies with its obligations with respect to its potential customers or customers.
Art. 65. When a credit institution holds financial instruments owned by clients, it takes appropriate measures to safeguard the rights of its clients in the event of insolvency of the institution. It also takes appropriate measures to prevent the use on its own behalf of financial instruments owned by customers, except for the express consent of such customers.
Section IV. - Use of subcontracting
Art. 66. When a credit institution assigns to a third party the execution of essential operational tasks to ensure the provision of its services, including its investment services and the performance of its investment activities, in a continuous and satisfactory manner, it shall take appropriate measures to limit the operational risk associated with it.
Externalization referred to in paragraph 1er may not be carried out in a manner that substantially affects the adequacy of the establishment's internal control procedures or that would prevent the supervisory authority from verifying whether the establishment complies with its legal and regulatory obligations.
The Bank publishes, on the advice of FSMA, a communication in which it sets out its policy on the outsourcing of portfolio management services provided to retail customers.
Section V. - Compensation policy and implementation
Sub-section Ire. - Principles
Art. 67. The compensation policy adopted in accordance with Article 56, § 5 is consistent with the economic strategy, objectives, values and long-term interests of the institution and includes measures to avoid conflicts of interest. At the time of the establishment and application of their compensation policy, the establishments observe the principles set out in Appendix II in a manner and to a extent that corresponds to the size and internal organization of the establishment and to the nature, scope and complexity of its activities.
In addition to the members of the legal body of administration, the compensation policy covers the categories of staff whose work activities have a significant impact on the risk profile of the institution, including senior management and those who hold a risk-taking function, persons who hold independent oversight functions, and employees whose total remuneration places at the same level of remuneration as senior management or persons who hold a position involving an independent oversight function.
Art. 68. The compensation policy covers all remuneration, including variable remuneration and discretionary pension benefits, of persons referred to in section 67, paragraph 2 and, in accordance with the prescribed schedule II, makes a clear distinction to determine the fixation criteria:
- fixed basic remuneration, which must first reflect a relevant professional experience and organizational responsibilities as defined in the description of functions that are part of the working conditions, and
- the variable remuneration that is based on performance criteria that must reflect a sustainable and risk-sensitive performance, as well as additional benefits provided in addition to those described in the job description that is part of the working conditions.
Art. 69. Appendix II of this Act sets out the criteria, terms and conditions and obligations to be met by the credit institution compensation policy and its implementation, in particular the conditions for the fixing and payment of variable remuneration.
Art. 70. Compensation practices in respect of persons referred to in section 67, paragraph 2 are consistent with the compensation policy established by the institution and the obligations set out in Appendix II. These practices are subject to a regular assessment to determine whether, in the light of the evolution of the institution's situation, the provisions set out in Appendix II are continuously complied with.
Sub-section II. - Credit institutions with
received exceptional financial support from public authorities
Art. 71. Credit institutions that have received exceptional financial support from public authorities adapt their compensation policies and practices in accordance with the requirements set out in Appendix II.
Section VI. - Limitation-prone operations
or prohibitive and invalid payments
Sub-section Ire. - Loans to leaders,
shareholders and related persons
Art. 72. § 1er. Credit institutions may not directly or indirectly grant loans, credits or guarantees
1° to members of their legal body of administration or to all persons participating in their effective direction;
2° to persons referred to in Article 9 and to members of their various bodies and to persons participating in their effective direction;
3° to companies or institutions in which persons subject to 1° and 2° or credit institutions themselves have any interest or exercise a function;
4° to persons related to persons subject to 1° and 2°. For this purpose, it is considered to be "related persons", spouses, partners considered under their domestic law as the equivalent of a spouse and parents in the second degree,
subject to conditions, up to amounts and with guarantees applicable to their customers. These loans, credits or guarantees must be provided with express information, within a time limit allowing the legal body to oppose them. Regardless of the organ called to decide, members with a direct or indirect personal or functional interest may not sit.
Loans, credits and guarantees referred to in paragraph 1er shall be notified to the control authority in accordance with the periodicity and manner determined by the control authority.
The control authority may, if these transactions have not been concluded under normal market conditions, require the adaptation of the terms agreed upon on the date that these transactions have taken effect. If not, the members of the legal body of administration who made the decision are jointly responsible for the difference to the institution.
§ 2. By derogation from the provisions of the Corporate Code and notwithstanding paragraph 1er, no loan, credit or guarantee may be granted, directly or indirectly, to a person in order to allow him or her directly or indirectly to acquire or subscribe shares or shares or any other securities conferring a right to dividends, credit or a corporation with which there is a close connection, or conferring the right to acquire such securities.
Art. 73. In the event of a bankruptcy of a credit institution, the payments made by that institution are null and void in respect of the mass, either in cash or otherwise, to its members of the legal body of administration, as an ash or other interest in profits, in the two years preceding the time determined by the court as the termination of its payments.
Paragraph 1er does not apply if the court recognizes that no serious and characterized fault of these persons has contributed to bankruptcy.
Sub-section II. - Use of funds and values
Art. 74. Credit institutions are prohibited from using the funds and values available to them to directly or indirectly influence public opinion.
This prohibition does not apply to open commercial advertising.
Section VII. - Communication of information
on the situation of the credit facility
Art. 75. § 1er. Without prejudice to the obligations, if any, applicable to listed companies, the supervisory authority shall determine, if any by regulation made under section 12bis, § 2 of the Act of 22 February 1998, the minimum information that credit institutions must publish in respect of creditworthiness, liquidity, risk concentration and other risk positions, on their policy of equity needs in reference to the requirements referred to in section 152 to 98 and It also defines the minimum frequency and modalities for the publication of this information.
Credit institutions publish on their website the relevant information of the governance memorandum referred to in articles 21, § 3 and 56, § 6. This information shall cover, at a minimum, the structure of the ownership and control of the establishment or the structure of the group of which it is a member, the management bodies, the organizational structure, including the independent operational control functions, as well as the purpose and values of the establishment's enterprise, the strength lines of its policies in respect of risk management, conflict of interest, integrity and continuity of the activities of the institution
Credit institutions also indicate in their annual report the return of their assets, calculated by dividing their net profit by the total of their balance sheet.
§ 2. Credit institutions provide the rules and procedures necessary to comply with the publication requirements set out in paragraph 1er. They assess the adequacy of their publication measures, including the control of published data and the frequency of publication.
§ 3. Credit institutions provide the necessary rules and procedures to assess whether the information they publish on their organization, their financial situation and the state of their risks provide market actors with complete information on their risk profile.
§ 4. The supervisory authority may, in special cases, authorize, within the limits of European legislation, exemptions from the provisions provided for by or under this article.
CHAPTER IV. - Special operations
Section Ire. - Changes to the activity program
Art. 76. Any modification of the activities carried out by the establishment must be communicated to the supervisory authority prior to its implementation.
Section II. - Strategic decisions, investment decisions and mergers and transfers between credit institutions
Art. 77. Are subject to the prior authorization of the control authority:
1° strategic decisions of a credit institution;
2° the decisions to acquire representative securities of the capital of a business whose activity is not referred to in section 4 for an amount of not less than 250,000 euros or an amount that reaches 5% of the equity of the credit institution;
3° mergers between credit institutions or between such institutions and other financial institutions as well as scissions of credit institutions;
4° the transfer between credit institutions or between such institutions and other financial institutions of the whole or part of their activity or network.
The control authority must decide within two months of receiving a complete project file. It may only refuse its authorization for reasons that are appropriate to the facility's ability to comply with the provisions set out in or under this Act or that are responsible for the sound and prudent management of the establishment or if the decision is likely to significantly affect the stability of the financial system. If it does not intervene within the time limit set out above, the authorization is deemed to be acquired.
Art. 78. Any total or partial assignment between credit institutions or between such institutions and other financial institutions of the rights and obligations resulting from the operations of the institutions or companies concerned and authorized in accordance with Article 77 shall be subject to third parties as soon as the authorization of the supervisory authority is published in the Belgian Monitor.
Disposals authorized by the supervisory authority under section 77 shall not be subject to nullity or inopposability under section 1167 of the Civil Code or sections 17, 18 or 20 of the Bankruptcy Act of 8 August 1997.
Section III. - Provisions relating
on the issue of covered Belgian bonds
Art. 79. A program of Belgian covered bonds can only be carried out by a credit institution and requires prior authorization from the supervisory authority.
The prior authorization of the supervisory authority shall, on the one hand, relate to the institution's organizational capacity to issue Belgian covered bonds and to follow up on them, and on the other hand, to respect for a given program or program of programming, the provisions provided by or under this Section and Appendix III.
Art. 80. § 1er. In order to obtain the authorization of the supervisory authority on the organizational capacity to issue Belgian covered bonds and to monitor them, the credit institution that intends to issue Belgian covered leaps must first submit to the supervisory authority a file containing information on how it will supervise the planned operations. At least this information relates to:
1° a description of the financial situation of the establishment and in particular its credit prospects, demonstrating that its creditworthiness allows to safeguard the interests of creditors other than Belgian covered bond holders;
2° a description of the long-term strategy of the establishment, with particular attention to the liquidity and the place of Belgian covered bonds in this strategy;
3° a description of the tasks and responsibilities within the establishment in relation to the issue of Belgian covered bonds;
4° a description of the institution's risk management policy with respect to Belgian covered bonds, in particular the risk of interest rates, exchange risk, credit and counterparty risk, liquidity risk and operational risk;
5° a description of the involvement of the internal audit in the Belgian covered bonds emission process, including the applicable frequency and control procedures;
6° a description of the decision and reporting processes relating to the issue of Belgian covered bonds;
7° a description of the computer systems needed to issue Belgian covered bonds.
The general authorization referred to in paragraph 1er concerning the ability to issue Belgian covered bonds is only given if the supervisory authority is satisfied that:
(a) the issuing institution shall present the administrative and accounting organization that allows compliance with the provisions of this Section and Appendix III and, in particular, segregation of the coverage assets; and
(b) that its financial situation, including solvency, saves the interests of creditors other than covered bond holders.
Before giving the authorization referred to in paragraph 1er, the supervisory authority shall request a report on the organizational quality of the credit establishment in respect of its obligations under this Section and Appendix III to this Act.
The supervisory authority shall rule on the application within three months of the introduction of a complete file and, at the latest, within five months of receipt of the application.
The decision of the supervisory authority shall be notified to the credit facility within 10 days by registered letter or with acknowledgement of receipt.
§ 2. In order to obtain the authorization of the supervisory authority on a given program or program of programming, the credit institution that intends to issue Belgian covered bonds must first submit to the supervisory authority a file containing information relating to the planned operation. The supervisory authority determines the information required as part of the introduction of the application. At least this information relates to:
1° the impact of the program or program on the liquidity situation of the facility;
2° the quality of the coverage assets, in particular with regard to the nature of the debtors of these assets and the security rights, guarantees or privileges associated with these assets, the diversification of these assets and their maturity;
3° the extent to which the maturity of the Belgian covered bonds corresponds to those of the cover assets;
4° the evidence to demonstrate that it is always satisfied with the conditions referred to in paragraph 1erParagraph 2.
The supervisory authority shall acknowledge receipt of the record referred to in paragraph 1er and, within fifteen days of receipt of the file, tell the establishment whether the file is complete for examination or if it requires additional information.
§ 3. The special authorization to conduct a program or program of Belgian covered bonds is given only if the supervisory authority is satisfied that the following conditions are met:
1° the establishment has the general authorization referred to in paragraph 1er;
2° coverage assets consist of:
(a) mortgage debts;
(b) receivables on or guaranteed by (i) central, regional or local public authorities of OECD member States or (ii) central banks of those States or (iii) public sector entities of those States or (iv) multilateral development banks or international organizations;
(c) shares issued by securitization agencies that perform the securitization of exposures on assets predominantly composed of the elements referred to in (a) and/or (b);
(d) receivables on credit institutions including amounts held at such credit institutions and amounts held by the issuing credit institution; and/or
(e) positions resulting from one or more coverage instruments related to one or more coverage assets or covered Belgian bonds, as well as amounts paid under such positions.
Art. 81. The King determines by a royal decree deliberated in the Council of Ministers:
1° the minimum requirements for coverage assets, including:
(a) the applicable law, the nature and geographical location of the debtor;
(b) the valuation criteria, if any, of which the portion of credit that must be covered by a mortgage, the rank of the required mortgage, the assessment conditions of the mortgage base, the location conditions of the mortgage base;
2° the conditions, including the minimum proportion, to which the assets referred to in Article 80, § 3, 2°, (a), (b) and (c) must satisfy;
3° by special patrimony concerned, the requirements for the correspondence of the maturity of the cover assets and those of the Belgian covered bonds issued by the credit institution;
4° the limitations to one or more categories of coverage assets to which a Belgian cover bond issue must be met and, where applicable, the proportion to be respected between the different categories of coverage assets;
5° the necessary measures to be taken by the issuing establishment to cover the exchange and exchange risks associated with the issuance of Belgian covered bonds; and
6° the powers and criteria on which the supervisory authority may determine, by issuing credit institution, the maximum percentage of Belgian covered bonds that may be issued by the establishment concerned in relation to its total balance sheet.
Art. 82. § 1er. The supervisory authority shall rule on the application for the issuance of Belgian covered bonds within two months of the introduction of a complete file and not later than three months of the receipt of the application.
§ 2. The decision of the supervisory authority shall be notified to the credit facility within 10 days by registered letter or with acknowledgement of receipt.
§ 3. The control authority shall establish two lists:
1° a list of authorized credit institutions, in accordance with Article 80, § 1erto emit Belgian covered bonds;
2° a list which further specifies, by establishment, the issued securities and the issuance programs for which the particular authorization referred to in section 80, § 2, has been given. This list is still subdivided depending on whether or not Belgian covered bonds are Belgian gage letters.
These lists are posted on the control authority's website.
Art. 83. The supervisory authority shall communicate the lists referred to in Article 82, § 3, as well as any amendments made thereto, to the European Commission, for the purposes of Article 52, § 4, of the Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of the legislative, regulatory and administrative provisions concerning certain collective investment bodies in securities, as amended.
Art. 84. Appendix III to this Act specifies, inter alia, the composition and legal regime of coverage assets, the rights of covered bond holders, the conditions of issuance of such securities and the obligations of covered bond issuers.
Section IV. - From the opening.
or acquisition of foreign affiliates
Art. 85. A credit institution that plans to acquire or create, directly or through a financial company or a joint financial company, a foreign affiliate carrying on an activity referred to in section 4 shall notify the control authority of its intention. This notification includes information on the activities, organization, shareholding and management of the company concerned.
Section V. - Exercise of activities abroad
Sub-section Ire- From the opening of branches abroad
Art. 86. The credit institution that plans to open a branch in the territory of another Member State with a view to exercising all or part of the activities listed in Article 4 and authorized in Belgium shall notify the supervisory authority of its intention.
This notification is accompanied by a programme of activities in which, inter alia, the categories of operations envisaged, the structure of the branch's organization, the domicile of correspondence in the State concerned and the name of the effective officers of the branch and, where appropriate, its independent supervisors.
The effective management of the branch as well as its independent supervisors must always have the necessary professional accountability and expertise to perform their duties. Sections 60 and 61 apply by analogy to the appointment of the effective officers of the branch and, where appropriate, its independent supervisory functions.
The supervisory authority may object to the completion of the project by decision based on the adverse impact of the branch's opening on the organization, financial situation or control of the credit establishment.
The decision of the supervisory authority shall be notified to the credit facility by registered letter to the position or with acknowledgement of receipt no later than six weeks after the receipt of the complete file including the information provided in paragraph 2. If the supervisory authority has not notified a decision within that period, it is deemed not to oppose the establishment's project.
The supervisory authority shall communicate to the European Commission and to the European Banking Authority, according to their periodicity, the number and grounds for final opposition decisions adopted under paragraph 4 on draft branches in the Member States or on changes in information referred to in paragraph 2.
This section, with the exception of paragraph 6, applies to the opening of branches in a third country.
Art. 87. Where the establishment State of the branch is a member State, the control authority, if it has not opposed the realization of the project in accordance with Article 86, paragraph 4 or 5, shall communicate to the competent authority of the State concerned within three months of the receipt of all information required by Article 86, paragraph 2, the information received under this provision, the level and composition of the funds specific to the establishment
The Bank advises FSMA within the same timeframe of this information communication, provided that the activities carried out abroad relate to the provision of investment services.
Art. 88. Where the establishment of the branch is not a member State, the control authority may agree with the authority of the third country concerned, the terms and conditions for the opening and control of the branch and the exchange of desirable information, if any, in accordance with the provisions of Chapter IV/1, section 4, of the Act of 22 February 1998.
Art. 89. The credit institution that opened a branch abroad shall inform the supervisory authority and the competent authorities of the host State, at least one month in advance, of the amendments affecting the information provided under Article 86, paragraph 2.
Section 86, paragraphs 4 and 5, is applicable if applicable, as well as section 87, depending on the changes in the information referred to in section 86, paragraph 2 or the applicable deposit protection system.
Sub-section II. - Exercise
free provision of foreign banking services
Art. 90. The credit institution that plans to exercise in the territory of another Member State, without establishing a branch, all or part of the activities listed in Article 4 and authorized in Belgium, notifies its intention to the supervisory authority and specifies those activities that it envisages to carry out and how it intends to supervise the exercise of these activities.
The supervisory authority may object to the completion of the project by decision based on the adverse impact of cross-border service delivery on the organization, financial situation or control of the credit establishment.
The decision of the supervisory authority shall be notified to the credit facility by registered letter to the position or with acknowledgement of receipt no later than in the month of receipt of the complete file including the information provided in paragraph 1er. If the supervisory authority has not notified a decision within that period, it is deemed not to oppose the establishment's project.
Art. 91. If it did not object to the realization of the project in accordance with Article 90, the supervisory authority shall forthwith communicate the notification provided for in this article to the competent authority of the host State concerned.
The Bank shall, within the same period, communicate the notification in question to FSMA, provided that the activities carried out abroad relate to the provision of investment services.
Sub-section III. - Exercise in another Member State of a banking activity by specialized subsidiaries of credit institutions
Art. 92. Financial institutions of Belgian law which are directly or indirectly subsidiaries of one or more Belgian credit institutions and which are authorized to carry out activities in Belgium that are referred to under items 2 and following of the list provided for in Article 4 may, for the exercise of these activities, establish branches in other jurisdictions Member States according to the rules set out in Articles 86, 87 and 89 or carry out their activities, without establishing branches, as set out in Articles 90 and 91, if they meet the following conditions:
1° the credit institution or credit institutions that are the parent companies of these financial institutions are approved in accordance with this Book;
2° the financial institutions carry out the aforementioned activities in Belgian territory;
3° the establishment or credit institutions that make up the parent companies of these financial institutions hold at least 90 p.c. of the voting rights attached to the shares or shares issued by these financial institutions;
4° the parent companies justify to the supervisory authority for the sound and prudent management of financial institutions;
5° mother-to-people companies guarantee, in a manner approved by the supervisory authority, the commitments of financial institutions;
6° the financial institutions are included in the consolidated control of the parent credit institutions, in accordance with Part III, Chapter IV, section II of this Book, in particular for the applicable requirements, on this basis, in respect of equity, control of major risks and limitations placed on the detention of associate rights as provided for in Regulation No. 575/2013.
The supervisory authority shall verify, before making the decision under sections 86 or 90, the fulfilment of these conditions. In this regard, it shall issue a certificate attached to the communication under section 87 or 91. By derogation from these provisions, the control authority shall communicate the level of the equity of the financial institution concerned and the amount of the consolidated solvency coefficient of the establishment or credit institutions whose financial institution is the subsidiary.
If the financial institution referred to in this article no longer meets the conditions provided for by the financial institution, the supervisory authority shall promptly inform the competent authorities of the State or Member States in which the financial institution operates by branch or service delivery.
The financial institutions referred to in this Section shall be included in the list of credit institutions referred to in section 14.
Sub-section IV. - situations where exercise
activities are carried out within a participating Member State
Art. 93. For substances entrusted to the European Central Bank pursuant to Article 4 of the MSU Regulation, in cases where the credit institution or its specialized subsidiary referred to in Article 92 plans to establish a branch or to carry out activities in the free provision of services in the territory of another participating Member State, the provisions relating to procedures between competent authorities and the related competencies are not applicable.
CHAPTER V. - Regulatory standards and obligations
Section Ire. - Forward management of equity and liquidity
Art. 94. § 1er. Credit institutions must have a policy regarding their own and liquidity needs that is appropriate to the activities they carry out or intend to exercise.
§ 2. To this end, the legal body of administration defines a forward-looking policy for the management of the equity needs and liquidity of the credit institution, which identifies and determines the current and future equity and liquidity needs of the institution.
This policy takes into account the nature, volume and characteristics of the activities carried out by the establishment or intended to be carried out, the risks associated with it and the risk management policy of the establishment.
§ 3. The policy referred to in paragraph 1er is implemented by the steering committee, under the supervision of the legal body of administration. It is the subject of a regular assessment by the legal body of administration, which proceeds if necessary to update it.
The supervisory authority may specify the frequency and modalities of this assessment, if any, by regulation made under section 12bis, § 2 of the Act of 22 February 1998.
Section II. - Global requirement
Baseline 1 fund cushion
Art. 95. Without prejudice to the compliance with the requirement under section 92 of Regulation No. 575/2013 or the requirement under or under sections 98, 149 and 150, a credit institution is required to meet the overall requirement of a Class 1 equity cushion as determined in section 96. A parent credit institution further complies with this requirement on the basis of its consolidated situation, as provided for in Part II, Part 2, Chapter 2 of Regulation No. 575/2013.
A financial company of Belgian law or a mixed financial company of Belgian law, which holds a credit facility shall comply with the provisions of paragraph 1er on a consolidated basis, under the terms of Part II, Part 2, Chapter 2 of Regulation No. 575/2013.
Art. 96. § 1er. Without prejudice to the terms and conditions set out in paragraphs 3 to 6, the overall requirement for a Class 1 base equity cushion is equal to the sum of the following requirements of Class 1 base equity cushion:
1° the cushion for the conservation of the Category 1 base funds referred to in Article 1er Appendix IV;
2° the base base fund cushion of category 1 specific contracyclical to the credit establishment concerned, referred to in sections 3 to 10 of Schedule IV;
3° the Class 1 core fund cushion for global systemic credit establishment (SIS) or for domestic systemic credit establishment (SIS), referred to in Articles 11 to 15 of Appendix IV;
4° the base Category 1 equity cushion for systemic or macroprudential risk, referred to in sections 16 to 22 of Appendix IV.
§ 2. The requirements referred to in paragraph 1er are specified in Appendix IV to this Act.
§ 3. A credit institution, a parent financial company of Belgian law or a joint financial company mother of Belgian law that is both subject to a requirement of a Class 1 base equity cushion for a global systemic credit facility (EISm) and to a requirement of a Category 1 high base equity cushion for a credit institution of domestic systemic importance ( Domestic EIS) in accordance with Articles 13 and 14 of Schedule IV, is no longer required to comply with the requirement.
§ 4. An establishment of credit, a parent financial company of Belgian law or a joint financial company of Belgian law that is subject to both the requirement set out in paragraph 3 and a Category 1 basic equity cushion requirement for systemic or macroprudential risk in accordance with Articles 16 to 22 of Appendix IV is required to meet only the highest requirement.
However, where the Category 1 base equity cushion requirement for the above-mentioned systemic or macroprudential risk covers only exposures to the risk of the credit institution located in Belgium, this requirement is added to the requirement referred to in paragraph 3.
§ 5. An institution of credit, a parent financial company of Belgian law or a joint financial company of Belgian law, on an individual basis or under-consolved basis, which is both subject to a requirement of a base fund cushion of category 1 for establishment of credit of high systemic domestic importance (HEA), in accordance with Article 14 of Appendix IV, and a requirement of a base fund cushion of category 1 for systemic or macroprudential risk
However, where the category 1 base equity cushion requirement for the above-mentioned systemic or macroprudential risk covers only exposures to the risk of the credit establishment located in Belgium, this requirement is added to the category 1 base equity cushion requirement for domestic systemic credit establishment (domestic EIS).
§ 6. Where a credit institution is a member of a group or sub-group to which a global systemic credit institution (SIS) belongs or a domestic systemic credit institution (SIS), the overall requirement for a Class 1 base equity cushion referred to in paragraph 1er for this credit institution cannot be less than the sum
- the requirements of the Class 1 base fund conservation cushion referred to in section 1er Appendix IV;
- the requirements of the establishment-specific base cash cushion 1 contracyclical, referred to in sections 3 to 10 of Schedule IV;
- the highest amount between the basic Category 1 equity cushion requirements for a domestic systemic credit institution (SDS), as set out in section 14 of Schedule IV and the basic Category 1 equity cushion requirements for systemic or macroprudential risk, as set out in sections 16 to 22 of Appendix IV, paragraph 5, paragraph 2 being applied,
which are applicable on an individual basis and, where applicable, on a sub-consolved basis.
Section III. - Macroprudential or systemic risk
Art. 97. The Bank is the national authority responsible for the application of section 458 of Regulation No. 575/2013.
In addition to the conditions set out in section 458 of Regulation No. 575/2013, the Bank's regulations adopted pursuant to that Article 458 require approval by royal decree deliberated in the Council of Ministers.
Section IV. - Bank regulatory authority
Art. 98. Without prejudice to the provisions of Regulation No. 575/2013, the Bank shall determine by regulation made under Article 12bis, § 2 of the Act of 22 February 1998:
(a) the solvency, liquidity and risk concentration standards and other limitation standards to be met by all credit institutions or credit establishments, where these standards are not defined by Regulation No. 575/2013;
(b) the terms and conditions for the application of solvency, liquidity and risk concentration standards set out in Regulation No. 575/2013, including the modalities for the application of the various options offered by this Regulation to the Member States and the Bank as the competent authority, taking into account the guidelines defined by the European Banking Authority in relation to the said Regulation and the technical standards of regulation adopted by the European Commission in accordance with that Regulation;
(c) the assessment rules applicable to the valuation of assets, liabilities and non-balance sheet elements for the verification of compliance with solvency, liquidity or risk concentration standards.
The standards referred to in this article may be both quantitative and qualitative in nature.
Section V. - Measures to reconstitute
Category 1 equity
Sub-section Ire. - Restrictions on distributions covering one of the constituent elements of the Category 1 core funds
Art. 99. A credit institution may only make a distribution on one of the constituent elements of the Category 1 core funds if it meets the overall requirement of Class 1 base equity cushion, referred to in section 96.
In addition, this distribution may not have the effect of reducing the Category 1 core funds to a level that no longer meets the overall requirement of base base cash cushions of catechism 1 referred to above.
Art. 100. By derogation from section 99, paragraph 1er, a credit institution that does not meet the overall requirement of a Class 1 base equity cushion may, however, make a distribution on components of Class 1 core funds if it meets the requirements set out in sections 101 to 103. For this purpose, the credit facility pre-calculates the maximum distribuable amount, or "MMD", and communicates this amount to the control authority.
The calculation terms and conditions of the MMD to be met by the establishment are specified in section 1er Schedule V to this Act.
Art. 101. § 1er. A credit institution referred to in section 100 may only carry out the following transactions up to the MMD:
(a) make a payment in remuneration or a refund or redemption of the constituent elements of Category 1 equity;
(b) make payments related to components of additional Category 1 equity;
(c) commit to pay variable remuneration or discretionary pension benefits.
§ 2. In addition, a credit institution referred to in section 100 may only pay variable remuneration or discretionary pension benefits up to the MMD, even if the obligation to pay was created at a time when the establishment met the overall requirement of Class 1 equity cushion.
§ 3. When planning to carry out one of the operations referred to in paragraphs 1er and 2, the establishment shall notify the control authority of its intention and provide the information referred to in Article 2 of Appendix V by justifying compliance with the non-expenditure of the MMD.
Art. 102. Credit institutions are provided with devices to ensure that the amounts of distribuable profits and, where applicable, the MMD are accurately calculated. They are able to demonstrate this accuracy to the control authority if requested.
Art. 103. The restrictions imposed by this Sub-Section shall apply only to the extent that the suspension of the resulting payments does not result in the conditions for the commencement of liquidation proceedings under the provisions of the Bankruptcy Act of 8 August 1997.
Sub-section II. - clean fund conservation plan
Art. 104. Where a credit institution fails to meet the overall requirement of a Class 1 base equity cushion referred to in section 96, the credit institution shall inform the supervisory authority and establish a plan for the conservation of the equity funds intended to increase the funds or, where appropriate, provide for measures that have the effect of decreasing the overall requirement of Class 1 base equity cushion from the establishment, by reducing its risk profile.
The establishment submits this plan, for approval, to the control authority no later than five working days after it found that it did not meet the above requirement. The supervisory authority may set an additional period of up to ten working days on the basis of the particular situation of a credit institution, taking into account the size and complexity of its activities.
Art. 105. § 1er. The supervisory authority approves the clean-up plan if it considers that its implementation should reasonably allow the establishment to effectively meet, within the time it deems appropriate, the overall requirement for a Class 1 equity cushion.
§ 2. If it is of the opinion that the implementation of the plan is not of a reasonable nature to meet the overall requirement of a Class 1 core fund cushion within the above-mentioned period, the control authority may
- require that the institution concerned increase its own funds to the level it considers necessary, within the time and manner it determines; and/or
- to impose restrictions on distributions more stringent than those provided for under section 101.
CHAPTER VI. - Periodic information and accounting rules
Art. 106. § 1er. Credit institutions deposit their annual accounts to the Bank.
The King shall, on the advice of the Bank:
1 the rules that credit institutions maintain their accounting, conduct inventory assessments and establish their annual accounts;
2° the rules to be followed by credit institutions for the establishment, control and publication of their consolidated accounts, as well as for the preparation and publication of management and control reports relating to these consolidated accounts.
The Bank may, by regulation made under section 12bis, § 2 of the Act of 22 February 1998, specify the terms and conditions for the application of the rules defined by the royal decrees referred to in paragraph 2.
§ 2. Credit institutions periodically communicate to the supervisory authority a detailed financial situation. It is established in accordance with the rules established by the control authority, which also determines its frequency. The supervisory authority may also prescribe the regular transmission of other encrypted or descriptive information necessary to verify compliance with the provisions of this Act, the orders and regulations made pursuant to these Acts or Regulation No. 575/2013.
The steering committee shall declare to the supervisory authority that the above-mentioned periodical statements transmitted by the institution at the end of the first social semester and at the end of the social year are in accordance with accounting and inventories. To that end, the periodic reports are
- complete; they mention all the data in the accounts and inventories on which they are prepared, and
- correct; they correspond exactly with the accounting and inventories on which they are established.
The steering committee confirms that it has done the necessary to ensure that the above-mentioned statements are prepared in accordance with the control authority's instructions, as well as in the application of the accounting and evaluation rules presiding over the preparation of the annual accounts, or, in respect of the periodic reports that do not relate to the end of the fiscal year, by applying the accounting and evaluation rules that presided over the preparation of the annual accounts for the last year.
§ 3. Members of the legal body of administration shall be jointly and severally liable both to the corporation and to the third parties, for all damages and interests resulting from breaches of the provisions made pursuant to paragraph 1er subparagraph 2.
With respect to the offences to which they have not taken part, members of the legal body of administration are not discharged from the liability referred to in paragraph 1er if no fault is attributed to them and if they have denounced these offences as the case may be, at the first general assembly or at the first session of the legal body of administration following the time they were aware of them.
§ 4. The control authority may, for certain categories of credit institutions or in particular cases, authorize exemptions from the rules set out in subsection 1erparagraphs 2 and 2, paragraph 1er.
§ 5. Orders and regulations under this section shall be taken after consultation with credit institutions represented by their professional associations.
Art. 107. The Bank publishes periodically and at least four times a year a global situation of credit institutions according to the rules it determines after consultation with credit institutions represented by their professional associations.
CHAPTER VII. - Recovery plans
Section Ire. - Development of recovery plans
Art. 108. Each credit institution establishes and maintains a recovery plan that provides for measures that may be implemented by the institution in order to restore its financial situation as a result of a significant deterioration of the financial situation.
The recovery plan covers the credit establishment and its Belgian and foreign affiliates.
Art. 109. The recovery plan envisages different scenarios of severe macro-economic or financial crisis, including system-wide events, credit-specific crises and, where appropriate, crises involving entities of the group whose credit-making is part of.
The recovery plan does not consider any exceptional financial support from the public authorities, but includes, where appropriate, an analysis of how and when the credit institution could use the facilities of central banks. The plan lists the assets of the credit institution that could be eligible for security.
Art. 110. § 1er. The recovery plan includes a matrix of quantitative and qualitative indicators of a potential deterioration in the financial situation of the credit establishment, with an indication of the times at which the establishment examines whether corrective measures in the plan must be implemented.
To this effect, the recovery plan defines appropriate procedures for the regular monitoring of the evolution of the indicators referred to in paragraph 1er as well as the review of corrective measures to be considered, including the possible climbing process to be followed.
§ 2. The indicators referred to in paragraph 1er include a gradual scale of thresholds indicating the proportion of the encumbered assets of the credit facility, determined by the control authority in accordance with paragraph 2. The recovery plan identifies the corrective measures to be considered in the event of exceedance of each threshold.
In order to ensure an adequate measure for the exercise of the privilege referred to in section 389 and also to preserve the access of the credit institution to its sources of financing, the control authority shall determine, for each credit institution, a progressive scale of thresholds for the proportion of the encumbered assets of the credit institution, as defined in the technical standard of execution referred to in section 100, paragraph 2, of Regulation No. 575/2013.
To determine the scale referred to in paragraph 2, the control authority shall take into account the level of deposits referred to in section 389 of the credit establishment, the nature of its activities and the structure of its balance sheet.
By way of regulation made under Article 12bis, § 2 of the Act of 22 February 1998 and approved by Royal Decree deliberated in the Council of Ministers, the Bank determines the minimum and maximum thresholds in which the scales referred to in paragraph 2 must be registered, taking into account the international developments in the matter and the reference levels that emerge.
§ 3. The credit institution may, where its legal authority considers it appropriate in the circumstances:
1° take measures under its recovery plan while it is not satisfied with the corresponding indicator;
2° to refrain from taking a measure under its recovery plan while it is satisfied with the corresponding indicator.
The credit institution shall inform the supervisory authority without delay of any decision to take action in the implementation of its recovery plan or to refrain from taking such action while satisfied with the appropriate indicator.
§ 4. Without prejudice to the other powers conferred upon it by this Act, the supervisory authority may enjoin the credit institution to take one or more corrective measures provided for in its recovery plan if the establishment fails to take the appropriate measures of its own initiative.
Art. 111. The credit institution shall update the recovery plan at least once a year and in any event after any change in its legal or organizational structure, its activities or financial situation that may have a significant impact on the plan or that requires a change in the plan.
The control authority may require that the credit facility update the recovery plan more frequently.
Art. 112. By way of regulation made under Article 12bis, § 2 of the Law of 22 February 1998, the Bank specifies:
1° the minimum content of the recovery plan;
2° the information to be transmitted by credit institutions to the control authority and the frequency to which it is transmitted.
Art. 113. § 1er. By decree deliberated in the Council of Ministers, the King:
1° may, under the conditions defined by it, exempt the following institutions from the obligations under this Section:
(a) credit institutions that are a subsidiary included in the consolidated monitoring of another credit institution, financial company or joint financial company under the law of a Member State for which a recovery plan was approved by the competent authority;
(b) the credit institutions referred to in Article 239, § 1er.
2° defines, in accordance with the principle of proportionality, the conditions under which the control authority may grant exemptions under paragraph 2.
§ 2. The control authority may, within and under the conditions defined in accordance with paragraph 1er, 2°, authorize an establishment of credit to waive the obligations under this Section with respect to the content of the recovery plan, the frequency of updating the plan or information to be provided by the credit institution as well as the time limit provided for in section 114, § 2, or section 415, to the extent that such a waiver is justified in respect of the impact that the failure and liquidation of the financial institution may have To this end, the supervisory authority takes into account, among other things, the nature of the activities of the credit institution, the structure of its shareholders, its legal form, its risk profile, its size, its interdependence with other credit institutions or the entire financial system, the scope and complexity of its activities and its potential exercise of services or investment activities.
The control authority may at any time withdraw the benefit of an exemption granted under paragraph 1er. It assesses the need and opportunity to maintain the exemptions granted at least once a year and after a change in the legal or organizational structure, the activities or financial situation of the credit institution concerned.
§ 3. The exemptions and derogations provided for in this Article shall not, in any case, relate to obligations relating to the progressive scale of thresholds for the proportion of the encumbered assets, as referred to in Article 110, § 2, paragraphs 2 and 3.
Section II. - Evaluation of recovery plans
Art. 114. § 1er. The recovery plan is reviewed and approved by the legal authority for the administration of the credit facility before it is submitted to the control authority.
§ 2. The credit institution submits its first recovery plan to the control authority within six months from the date of its approval.
Subject to paragraph 3, the credit institution shall submit an updated plan to the supervisory authority within two months of the fact that the plan has been updated, on the understanding that the supervisory authority may extend the time limit to six months.
In the case that the fact that gave rise to the obligation to update the plan is an amendment to the financial situation of the credit institution that could have a significant impact on the plan, the credit institution shall inform the supervisory authority without delay and submit an updated plan within the time limit that the supervisory authority transmits.
§ 3. The control authority transmits the recovery plan and each updated plan to the resolution authority.
The resolution authority may, within thirty days of receipt of the plan, make recommendations to the supervisory authority on the measures provided for in the plan that may have a negative impact on the solvency of the credit institution.
Art. 115. § 1er. Within six months of receiving the recovery plan, the supervisory authority reviews this plan and assesses whether it meets the requirements set out in or under sections 108 to 113.
For this purpose, the supervisory authority assesses, inter alia, whether the recovery plan is reasonably expected to:
1° the implementation of the measures set out in the plan is likely to maintain or restore the viability and financial position of the credit institution or the group of which it is a party, taking into account the preparatory measures that the establishment has taken or planned to take;
2° the plan and the various options set out therein are likely to be implemented quickly and effectively in financial crisis situations, avoiding, to the extent possible, significant negative effects on the financial system, including in scenarios involving the concurrent implementation of recovery plans of other institutions.
In its assessment of the recovery plan, the supervisory authority pays particular attention to the adequacy of the capital structure and the financing of the credit institution in relation to the complexity of its organizational structure and its risk profile.
§ 2. If the supervisory authority considers that the recovery plan presents significant gaps, or that there are significant obstacles to its implementation, it informs the credit institution and, after giving it the opportunity to express its view, invites it to submit, within two months, a revised plan in which it is addressed to these deficiencies or obstacles. The supervisory authority may extend the above-mentioned period of up to two months.
§ 3. If the supervisory authority considers that the revised plan in accordance with paragraph 2 does not effectively address the deficiencies or obstacles identified by the supervisory authority, it may require the credit institution to make, within thirty days of notification of this finding to that establishment, specific amendments to the recovery plan.
Art. 116. § 1er. If the credit institution fails to respond, within the specified time limit, to the invitation referred to in Article 115, § 2, or if the supervisory authority considers that the revised recovery plan submitted in accordance with Article 115, § 2, does not remedy the deficiencies or obstacles it has identified and that it is not possible to remedy them effectively by an injunction given in accordance with Article 115, § 3, informs the authority
§ 2. If the control authority considers that the changes proposed by the credit institution pursuant to paragraph 1er fails to address any deficiencies or obstacles identified by the Agency, it may, without prejudice to any other measures provided for by or under this Act, require the credit institution to take any action that it considers necessary and proportionate to put an end to such deficiencies or obstacles.
The control authority may, in particular, enjoin the credit establishment of:
1° reduce its risk profile, including the risk of liquidity;
2° allow rapid recapitalization measures;
3° to review its strategy and structure;
4° amend its financing strategy to increase the robustness of its core activities and critical functions;
5° modify its governance structure.
The control authority's decision is notified in writing to the credit institution.
CHAPTER VIII. - The structure of activities
Section Ire. - Scope and definitions
Art. 117. This Chapter applies to Belgian credit institutions that collect deposits or issue debt securities that are covered by the Belgian deposit protection system referred to in Article 380.
Art. 118. § 1er. For the purposes of this Chapter and of the decrees and regulations made for its execution, it shall be understood by:
1st trading on a own account, the negotiation of financial instruments by initiating its own capital within the framework of the trading portfolio as defined in Article 4, paragraph 1, 86) of Regulation No. 575/2013;
2° on a consolidated basis, on the basis of the consolidated situation of the group or subgroup constituted by a credit institution and its Belgian and foreign subsidiaries;
3° consolidation perimeter, group or subgroup consisting of a credit institution and its Belgian and foreign affiliates;
4° bargaining entity, any company related to a credit institution, outside its consolidation scope, whose own account trading activities exceed the thresholds set out in a Bank regulation pursuant to Article 12bis, § 2 of the Act of 22 February 1998.
§ 2. In matters under this Chapter, any royal decree referred to in Article 12bis, § 2, paragraph 3, of the Act of 22 February 1998 shall be deliberated in the Council of Ministers.
Section II. - Prohibition of negotiation activities on behalf of
Art. 119. From 1er January 2015, it is prohibited for any credit institution to carry out negotiations on its own behalf, either directly or through Belgian or foreign affiliates.
Art. 120. For the purposes of this Chapter, transactions and commitments on their own behalf, not accompanied by adequate security rights, shall be assimilated to:
(a) levers collective investment organizations or similar investment vehicles that meet the characteristics set out in a FSMA regulation; or
(b) collective investment organizations that have invested or are exposed to one or more of the organizations or vehicles referred to in (a) beyond a threshold set out in a Bank regulation pursuant to Article 12bis, § 2 of the Act of 22 February 1998.
Art. 121. § 1er. Subject to section 123, the prohibition under section 119 does not apply to transactions on financial instruments that are part of the following activities, provided that these transactions meet the conditions set out in paragraph 2:
1° the provision to customers of investment services and auxiliary services, as defined in Article 46, 1°, 1., 2. and 4. to 8., and 2°, of the Act of 6 April 1995, to meet the needs of clients' financing, coverage or investment;
2° the market holding activities consisting of the regular and continuous presence, in a regulated market or in a multilateral trading system of which it is a member, of an intervener who offers firm purchase and sale prices for financial instruments, with a commitment of his or her share to be counterpart to these prices on minimum quantities, for the purpose of bringing liquidity to the market concerned, as long as that intervener is certified as market value
3° the specific risk coverage activities of the credit institution or its subsidiaries, including the risks associated with the activities referred to in 1°, 2°, 4° and 5°;
4° sound and prudent management of the liquidity of the credit institution and its subsidiaries;
5° the purchase and sale of financial instruments acquired with the intention of sustaining them.
§ 2. To be exempted from the prohibition under section 119, the financial instruments transactions referred to in paragraph 1er must meet the following conditions:
1° shall be carried out within the limits of risk and in accordance with the supervision measures established under section 122;
2° with respect to operations carried out in the activities referred to in paragraph 1er, 1° to 3°, the credit institution must demonstrate that they are necessary to enable it to fulfill its role as an intermediary with its customers;
3° with respect to operations carried out in the activities referred to in paragraph 1er, 4° and 5°, the credit institution must demonstrate that they are necessary for the sound and prudent management of the liquidity or investment in question.
Art. 122. By way of regulation made pursuant to Article 12bis, § 2 of the Law of 22 February 1998, the Bank sets the limits of risk and supervision for transactions on financial instruments referred to in Article 121, § 1er.
The regulations referred to in paragraph 1er also defines:
1° the rules of governance and risk management for each category of operations referred to in Article 121, § 1er;
2° the specific internal control procedures to be implemented by credit institutions in order to ensure compliance with the conditions and limits set by or under sections 121 to 124;
3° the specific periodic reporting obligations of credit institutions allowing the supervisory authority to control compliance with these conditions and limits.
Art. 123. § 1er. Transactions on financial instruments referred to in Article 121, § 1er, which do not remain within the limits of risk established under sections 121 and 122, are considered to be activities for negotiation on a prohibited own account when, on an individual basis or on a consolidated basis, the market risks associated with these transactions exceed the threshold established in accordance with paragraph 2.
§ 2. The threshold referred to in paragraph 1er is set in terms of ratio of equity requirements for market risks related to operations referred to in paragraph 1er on the total of the credit institution's own regulatory funds, on an individual basis or on a consolidated basis, as the case may be.
The ratio referred to in paragraph 1er cannot be more than one percent. By deliberate decree in the Council of Ministers, the King can adapt this limit to the changing needs of the real economy.
In accordance with the maximum ratio referred to in paragraph 2, the control authority shall set the threshold referred to in paragraph 1er separately for each credit institution, taking into account in particular the activities and risk profile of the credit institution and the impact of the threshold on the ability of the credit institution to play its role in supporting the real economy.
§ 3. By way of regulation made pursuant to Article 12bis, § 2 of the Act of 22 February 1998, the Bank defines the method of calculating the ratio referred to in paragraph 2.
This regulation may, under the conditions it defines:
1° exclude from the calculation of the above-mentioned ratio the requirements of equity generated by intra-group transfers to centralize market risk management at the credit institution level;
2° allow the supervisory authority to grant the credit institution a period of time to regulate its situation in the event of exceptional circumstances which partly escape its control.
Art. 124. By derogation from section 119, the control authority may authorize a credit institution, subject to the conditions it defines, to continue the extinctive management of financial instrument portfolios that have been managed in this manner since a date prior to 1er January 2014.
Art. 125. The credit institution assumes the burden of proof to demonstrate to the control authority that its activities or those of its subsidiaries, as the case may be, meet the conditions and limits set by or under sections 121 to 124.
Art. 126. § 1er. Within thirty days of the finding of the crossing of the threshold referred to in section 123, the credit institution shall submit to the approval of the supervisory authority a plan that describes in detail how it intends to decrease, stop or dispose of its trading activities or those of its subsidiaries in order to comply with the provisions of this Chapter.
§ 2. For this purpose, the trading activities on behalf of the credit institution or its subsidiaries may be transferred in whole or in part to one or more related companies, outside the consolidation scope of the credit institution.
When trading activities on their own account are transferred to a Belgian law-related company, the company must be registered as a stock exchange company in accordance with the law of 6 April 1995.
Art. 127. § 1er. Where a credit institution fails to submit the plan referred to in section 126, § 1er, or if the supervisory authority considers that this plan does not ensure that the provisions of this Chapter are complied with on a sustainable basis, the supervisory authority may enjoin the credit establishment to take the corrective measures it considers necessary, including the termination or assignment of the bargaining activities for the particular account.
§ 2. In its assessment of the plan referred to in Article 126, § 1er, the control authority takes into account the effects of this plan on the stability of the financial system and on the functioning of the real economy.
§ 3. In the event of the transfer of trading activities on behalf of a company related to the credit establishment, the supervisory authority may override its approval of the plan referred to in section 126, § 1er, under conditions to limit the risks associated with the exercise of these activities by this company.
§ 4. Upon approval of the plan referred to in section 126, § 1er, by the supervisory authority, it shall notify the credit institution concerned and publish it on its website.
Section III. - Relations with negotiating entities
Art. 128. Any Belgian legal bargaining entity must comply with the prudential requirements that are applicable to it on an individual basis and, where applicable, on the basis of the consolidated situation of the group or sub-group constituted by the entity and its Belgian and foreign affiliates, without having an exemption or derogation due to its inclusion in the consolidated situation of a broader group comprising one or more credit institutions.
Art. 129. § 1er. For the application of the requirements of regulatory equity and limits to major risks, exposures of credit institutions to related negotiating entities are treated as exposures to third parties.
Exhibitions referred to in paragraph 1er may not be exempted in whole or in part from the limits to major risks under section 400, paragraph 2, (c) or (f) of Regulation No. 575/2013.
§ 2. By way of regulation made pursuant to Article 12bis, § 2 of the Act of 22 February 1998, the Bank may submit the exhibitions referred to in paragraph 1er a limit for major risks less than 25 percent in accordance with section 395, paragraph 6, of Regulation No. 575/2003 and require that they be subject to adequate credit protection.
Art. 130. A credit institution may not acquire or hold, directly or indirectly, qualified participations in bargaining entities unless the amount of such participation is deducted from the amount of its own Class 1 core funds and subject to the prior authorization of the control authority.
Art. 131. § 1er. Members of the steering committee or, in the absence of such a committee, those responsible for the effective management of a credit institution may not exercise any mandate or executive function within a bargaining entity.
§ 2. Without prejudice to section 524 of the Code of Companies, the board of directors of a Belgian legal bargaining entity shall have at least one independent administrator within the meaning of section 526ter of the Code.
At least half of the non-executive members of the board of directors of a Belgian legal bargaining entity do not exercise any mandate or executive function within a company related to the bargaining entity.
Section IV. - Miscellaneous provisions
Art. 132. The provisions of this Chapter shall be without prejudice to any other measures that may be imposed by the supervisory authority or the resolution authority under this Act.
Art. 133. The King may, by order deliberately in the Council of Ministers, take all necessary measures, in the opinion of the Bank, to ensure the transfer of the provisions resulting from international treaties or international acts made under them, in the matters regulated by the provisions of this Chapter.
The powers granted to the King by paragraph 1er expire 31 December 2015.
Orders made under this article may amend, supplement, replace or repeal existing legal provisions.
These orders are repealed in full law when they have not been confirmed by law within 12 months of their publication to the Belgian Monitor.
PART III. - Control of credit institutions
CHAPTER Ier. - Control exercised by the control authority and FSMA
Art. 134. § 1er. In accordance with the division of jurisdiction provided for in MSU Regulation, the supervisory authority shall ensure that each credit institution operates in accordance with the provisions of this Act, the decrees and regulations made pursuant to this Act and the European regulations directly applicable, without prejudice to the powers vested in the MSDS under section 45, § 1erParagraph 1er, 3°, and § 2, of the law of 2 August 2002.
§ 2. In carrying out its general duties, the supervisory authority shall give due consideration to the potential impact of its decisions on the stability of the financial system of all other Member States concerned, particularly in emergency situations, based on the information available at the time.
Art. 135. For the purposes of its mission, the supervisory authority may be provided with all information relating to the organization, operation, situation and operations of credit institutions.
It may conduct on-site inspections and be informed and copied, without displacement, any information held by the establishment, with a view to
1° to verify compliance with the legal and regulatory provisions and the European regulations directly applicable to the status of credit institutions, as well as the accuracy and sincerity of the accounting and annual accounts, as well as the statements and other information transmitted to it by the institution;
2° to verify the adequacy of the management structures, the administrative and accounting organization, the internal control and the forward-looking management policy of the establishment's equity needs and liquidity;
3° to ensure that the management of the establishment is healthy and prudent and that its situation or operations are not likely to endanger its liquidity, profitability or solvency.
Prerogatives referred to in subparagraphs 1er and 2 also cover access to the agendas and minutes of the meetings of the various organs of the establishment and their internal committees, as well as the related documents and the results of the internal and/or external evaluation of the functioning of the said bodies.
Art. 136. As part of these inspections, officers of the supervisory authority are empowered to receive any information and explanations that they consider necessary for the performance of their duties from the managers and employees of the credit facility and may, to that end, require interviews with officials or staff of the facility that they designate.
Art. 137. Credit institutions are required to inform FSMA and the supervisory authority without delay when they initiate systematic inter-agency services within the meaning of Article 3, 66°, or to terminate them.
Art. 138. Without prejudice to the competences vested in the European Central Bank under MSU Regulation, the Bank and FSMA shall enter into a protocol to ensure effective and coordinated control of credit institutions. They publish this protocol on their respective website.
This protocol sets out the modalities for collaboration between the Bank and FSMA in all cases where the law provides for a notice, consultation, information or other contact between the two institutions, as well as in cases where a dialogue between the two institutions is necessary to ensure uniform enforcement of the legislation.
Art. 139. The supervisory authority is aware of the relationship between the credit institution and a specified client only to the extent required for the control of the establishment.
Art. 140. The supervisory authority may proceed to the branches of the Belgian credit institutions established in another Member State, with the prior information of the competent authorities of that State, to the inspections referred to in Article 135, paragraph 2, and to any inspection in order to collect or verify on-site information relating to the management and management of the branch, as well as any information that may facilitate the control of the credit institution, especially in respect of liquidity,
It may, for the same purposes, and after having notified the authorities referred to in paragraph 1er, load an expert, whom she designates, to carry out useful audits and expertise. The remuneration and expenses of the expert are borne by the institution.
It may also request such authorities to conduct the audits and expertise referred to in paragraph 1er She tells them.
CHAPTER II. - Prudential monitoring process
Section Ire. - prudential control programme
Art. 141. § 1er. Based on the results of the control and assessment procedure for credit institutions conducted under section 142, the supervisory authority shall establish its control program on an annual basis. This control program indicates:
1 the way in which the supervisory authority intends to conduct its missions and allocate its resources;
2° credit institutions that will be subject to enhanced control and the measures to be taken to that end in accordance with paragraph 3;
3° the programme of on-site controls, including in the branches and branches of the establishments established in another Member State, respectively in accordance with Article 140 and/or 162, 183, § 2 and 214;
§ 2. The control program is established for credit institutions for which the control and assessment procedure referred to in section 142, or the results of the resistance tests referred to in Articles 143, § 1er, 1° and 148, have revealed significant risks affecting their financial strength or breaches of the provisions of this Act, the decrees or regulations made for its execution or the European regulations directly applicable.
The control program also covers global systemic credit institutions (SIS) or domestic systemic importance (SIS) referred to in Article 12 of Appendix IV.
The supervisory authority may, at any time, add to its control program any other credit institution in respect of which it considers that a particular follow-up is necessary with regard to the compliance, by that institution, of this Act and the orders and regulations made pursuant to it and of the European regulations directly applicable.
§ 3. The measures referred to in paragraph 1er2° may include:
1° increase the number or frequency of on-site inspections at a credit facility;
2° conduct thematic inspections on specific risks;
3° require the transmission of additional or more frequent reporting;
4° conduct an additional or more frequent review of the operational, strategic or development plans of a credit institution;
5° impose its permanent presence in a credit institution.
§ 4. Where circumstances require, the control authority shall adapt the content of its control program as referred to in paragraph 1er.
Section II. - Prudential Monitoring and Evaluation Procedure
Art. 142. Based on the criteria of section 143, the supervisory authority shall verify compliance with the provisions of this Act, the orders and regulations made pursuant to that Act and Regulation No. 575/2013. It assesses the risks to which the credit establishment is or could be exposed, the risks identified, if any, by the resistance tests conducted under section 148, the adequacy, in relation to these risks, of the forward-looking management of equity and liquidity as referred to in section 94 and the risks that the credit establishment presents to the financial system.
The supervisory authority determines the frequency and extent of this assessment, taking into account the size and systemic importance of the establishment concerned, the nature, volume and complexity of its activities. For establishments covered by its control program under section 141, the evaluation is updated at least once a year.
The supervisory authority shall promptly inform the European Banking Authority of the results of the assessment referred to in paragraph 1er, if the credit institution shows that a credit institution is likely to cause a systemic risk by applying the criteria set out in section 23 of Regulation No. 1093/2010.
Art. 143. § 1er. In addition to the audit of the control of credit and market risks and operational risks referred to in sections 5 to 7 of Appendix I, the control and evaluation carried out by the control authority under section 142 shall, in particular, include:
1° the results of the resistance tests carried out in accordance with section 177 of Regulation No. 575/2013 by the credit institution that applies the approach based on internal ratings;
2° exposure to concentration risk and control of this risk by the establishment, including compliance with the requirements set out in section 3 of Appendix I and by Regulation No. 575/2013, Part IV and by the Bank's regulations pursuant to section 98;
3° the soundness, appropriateness and application of the policies and procedures implemented by the establishment to control the residual risk associated with the use of recognized credit risk mitigation techniques;
4° the adequacy of the equity held by the credit institution in respect of the assets held, taking into account the economic substance of the transaction, including the degree of the risk transfer realized.
The control authority examines whether the establishment concerned retains, by implicit support, part of the risk associated with the assets under a securitization operation. Where it is determined that an establishment has provided such implicit support more than once, the supervisory authority may take such measures as it considers necessary, taking into account what this institution presents, in this case, an increased likelihood of providing such support in a subsequent securitization operation;
5° exposure to liquidity risk and the measurement and control of this risk by the establishment, including:
- the development of analyses based on other scenarios than those provided for in Regulation No. 575/2013 and by the Bank's regulations under section 98;
- management of liquidity risk mitigation elements (including the level, composition and quality of liquidity cushions);
- the development of effective contingency plans.
The supervisory authority conducts on a regular basis an in-depth evaluation of the overall management of liquidity risk by the establishment and ensures that internal liquidity risk assessment methods are sound. The supervisory authority takes into account the role played by the establishment in the financial markets and the potential impact of its decisions on the stability of the financial system in the other Member States concerned;
6° the impact of risk diversification and/or risk exposure effects, and how these effects are integrated into the risk assessment system;
7° the results of the resistance tests carried out by the establishment using an internal model for the calculation of the requirements in equity for market risk, in accordance with Regulation No. 575/2013, Part 3, Part IV, Chapter 5 and the regulations made by the Bank pursuant to Article 5, § 5 of Appendix I;
8° the geographical location of the exhibitions of the establishment;
9° the business model of the establishment;
10° systemic risk assessment according to the criteria set out in section 23 of Regulation No. 1093/2010;
11° the appropriate and prudent nature of the assessment rules used by the credit institution. The value corrections made, pursuant to section 105 of Regulation No. 575/2013, shall allow the establishment, under normal market conditions, to quickly sell or cover its positions without material losses;
12° the establishment's exposure to the risk of interest rates inherent in its non-trade portfolio activities. Without prejudice to section 149, measures are at the very least required by the supervisory authority if it appears that a sudden and unexpected change in interest rates could result in the economic value of an establishment falling to more than 20% of its own funds;
13° the exposure of the establishment to the risk of levers, as shown in the excessive levers indicators, in particular the levers ratio determined in accordance with Regulation No. 575/2013, section 429.
When assessing the adequacy of the institution's leverage ratio and the appropriateness of the provisions, strategies, procedures and mechanisms implemented to control the risk of levers, the supervisory authority shall take into account the business model of the institution concerned;
14° the organization of the credit institution referred to in section 21 and the capacity of the members of the legal board of directors and the steering committee to exercise their powers.
§ 2. The supervisory authority may specify the quantitative and qualitative criteria it takes into account to assess the level of risks and the appropriateness of their treatment by credit institutions, if any by regulation made under Article 12bis, § 2 of the Act of 22 February 1998.
Section III. - Review of internal approaches and methods
Art. 144. § 1er. The control authority shall review at regular intervals, and at least every three years, compliance with Regulation No. 575/2013 and the regulations made under sections 1er, § 6 and 5, § 5 of Appendix I of the internal approaches for the calculation of requirements in regulatory own funds. It further examines whether credit institutions authorized to use these approaches comply with the conditions previously laid down by the supervisory authority for this use. It takes into account, in particular, the evolution of the activities of the establishment and application of these approaches to new products.
§ 2. The supervisory authority shall verify and assess, inter alia, whether institutions using internal approaches referred to in paragraph 1eruse appropriately developed techniques and practices that are updated.
Art. 145. § 1er. When the supervisory authority finds that the internal approach used by a credit institution has material impairments in risk apprehension, it requires that the establishment take appropriate measures to remedy this situation and mitigate its consequences, and imposes, where appropriate, an increase in multiplier coefficients or specific requirements in equity under section 149.
§ 2. If many overtakings, as defined in section 366 of Regulation No. 575/2013, indicate that an internal market risk model is not sufficiently accurate, the control authority may revoke the authorization to use this internal model or impose concrete measures to ensure that this model is improved as soon as possible.
§ 3. When it finds that a credit institution, which has been authorized to use an internal approach to the calculation of regulatory equity requirements, no longer meets the requirements for the use of this approach, the supervisory authority requires that the establishment submit a compliance plan that incorporates a timeline, or that the establishment demonstrates that the effects of non-compliance are negligible, in light of Regulation No. 575/2013.
The supervisory authority requires that the compliance plan be amended if it considers that its implementation will not lead to compliance with the applicable conditions or if it considers that the compliance period submitted by the credit establishment is inadequate or unrealistic. If the supervisory authority considers that the establishment will not be able to meet, within the time it considers appropriate, the terms and conditions of use of the internal approach, it revokes the authorization to use the said internal approach or limits that use to the areas for which compliance is assured, or is able to be so within a time limit that the control authority considers appropriate.
Art. 146. Notwithstanding section 145, if the supervisory authority finds that the non-compliance of the internal approach may result in the non-compliance of the credit institution concerned no longer meeting the requirements for regulatory equity, it imposes, in accordance with section 234, § 2, 1°, a requirement of additional equity to remedy this situation within the time limit it fixes.
Art. 147. § 1er. Credit institutions authorized to use internal approaches for the calculation of risk exposure amounts or equity requirements, outside of operational risk, shall communicate once a year, or upon request of the control authority, the results of the calculations based on their internal approaches for their exposures or positions included in the reference portfolios. This information is accompanied by an explanation of the methods used.
§ 2. For the communication referred to in paragraph 1er, credit institutions use the model defined by the European Banking Authority, except for the communication of the results of the calculations for specific portfolios requested, if any, by the control authority, which is the subject of a separate transmission.
§ 3. The control authority conducts a comparative analysis of the quality of internal approaches that are communicated to it at least once a year. It requires corrective action if it finds that the approach used by a credit institution is significantly different from the other approaches used by the sector and determines that this approach has, as a result, a sub-estimate of the specific fund requirements for the particular institution, which is not attributable to the underlying risk differences to which the establishment is exposed.
Section IV. - Resistance tests
Art. 148. If it considers that the resistance tests carried out in accordance with section 23 of Regulation No. 1093/2010 do not provide sufficient results, the supervisory authority shall submit credit institutions to specific prudential resistance tests taking into account the particularities of the banking sector in Belgium, for the purpose of facilitating the control and evaluation procedure referred to in section 142.
Section V. - Careful measures
Art. 149. Based on the results of the control and assessment procedure conducted in accordance with section 142, the supervisory authority may impose a specific requirement on a credit institution of equity, in addition to the requirements of equity required by or under Regulation No. 575/2013 and the regulations made under section 98, and section 95, in order to take into account the risks to which that institution is or could be exposed. The supervisory authority specifies how the institution concerned must cover this specific requirement of equity.
The control authority shall take into account the following:
(a) the quantitative and qualitative aspects of the forward-looking management policy of the credit institution's own funds needs, referred to in Article 94, § 2;
(b) all provisions, procedures and mechanisms established by the establishment in accordance with Article 21;
(c) the results of the review of internal approaches and internal methods referred to in Section III and of the prudential resistance tests conducted pursuant to Article 148;
(d) the risks that the establishment presents to the stability of the financial system in Belgium and other member states.
Art. 150. The specific requirement of equity under section 149 may also be imposed in the following cases:
1° the establishment presents risks that are not covered, or are only partially covered, by the requirements in equity determined in accordance with the provisions of Regulation No. 575/2013 and the regulations made under section 98, and section 95;
2° the results of the resistance tests carried out pursuant to section 377, paragraph 5 of Regulation No. 575/2013, indicate that the requirement in equity for the correlation trading portfolio referred to in section 338 of this Regulation is significantly insufficient;
3° on the basis of the control and assessment procedure referred to in section 142, the supervisory authority considers that the minimum requirements in equity determined under Regulation No. 575/2013, the regulations made under section 98, and section 95, or fixed by the establishment itself under section 94, are likely to underestimate the actual risks incurred by the establishment.
Art. 151. Where the regulator considers that the risk of liquidity to which, or is likely to be exposed, a credit institution warrants that, the supervisory authority may impose specific liquidity standards on that establishment in addition to those defined in Regulation No. 575/2013 and the regulations made under section 98. The control authority shall take into account:
1° of the establishment's business model;
2° of the result of the control and assessment procedure referred to in section 142, in particular where the supervisory authority concludes that the minimum liquidity requirements determined by Regulation No. 575/2013 and the regulations made pursuant to section 98, or fixed by the establishment itself under section 94, underestimates the actual risks incurred by the establishment or of which there is a fear of overcoming;
3° of the organization system and the measures put in place by the establishment to ensure control of risks, in particular the liquidity risk referred to in Article 8 of Appendix Ire;
4° of the existence of a systemic liquidity risk for the financial system in Belgium or other member states.
Art. 152. The supervisory authority may decide to extend the measures imposed in accordance with sections 149 to 151. The application of these provisions does not prejudice the application of other provisions of this Act, including section 234.
Art. 153. The supervisory authority shall inform the European Banking Authority:
1° of the operation of its control and assessment procedure referred to in section 142;
2° of the method used to ensure that decisions made pursuant to sections 143 to 151, and 234 are based on the control procedure and evaluation conducted in accordance with section 142.
Section VI. - Establishments
credit with similar risk profiles
Art. 154. If the supervisory authority finds, on the basis of the control and assessment procedure referred to in section 142, that credit institutions that have similar risk profiles due to the similarity of their business models or the geographic location of their exposures at risk, are exposed, or are likely to be, at similar risks or represent similar risks to the financial system, it may impose, or impose, on institutions concerned, 14934
Credit institutions referred to in paragraph 1er may, in particular, be identified on the basis of the criteria set out in section 23 of Regulation No. 1093/2010.
Where the control authority makes use of the possibility provided for in paragraph 1er, it informs the European Banking Authority.
CHAPTER III. - Monitoring of activities
exercised in another Member State
Section Ire. - Definitions
Art. 155. For the purposes of this Chapter, it is necessary to hear by:
1° Member State of origin, the Member State in which an approval is granted to a credit institution, in casu la Belgique;
2° Member State, Member State in which a credit institution has a branch or provides services;
3° the control authority, the control authority as the competent authority of the member State of origin.
Section II. - Monitoring of activities
Art. 156. § 1er. Control exercised by the control authority in accordance with Part III, Chapter Ier, also deals with activities that credit institutions operate by branch or free service in another Member State.
The control referred to in paragraph 1er does not prejudice consolidated control.
§ 2. In carrying out its mission, the supervisory authority duly takes into account the potential impact of its decisions on the stability of the financial system of all other Member States concerned, in particular in emergency situations, based on the information available at the time.
Section III. - Exceptional measures
Art. 157. § 1er. Where the competent authorities of another Member State in which a Belgian credit institution has established a branch or carries out banking activities referred to in Article 4, under the regime of the free provision of services, enter the authority to control violations of the legal provisions applicable in that Member State under their control in accordance with Directive 2013/36/EU, the supervisory authority shall take or take, as soon as possible, all appropriate measures provided for in Articles 234 to rectify.
The supervisory authority shall communicate the nature of these measures to the competent authority of the host Member State.
§ 2. If the supervisory authority withdraws the approval of the credit institution that operates in another Member State by branch or free service, it shall promptly inform the competent authority of the host Member State.
§ 3. Where, in an emergency situation, the competent authority of the host Member State has taken precautionary measures pending adequate or corrective measures taken by the supervisory authority, the latter may refer to the European Banking Authority and request its assistance in accordance with Article 19 of Regulation No. 1093/2010 regarding a measure in respect of which it objects.
Section IV. - Cooperation
Art. 158. In order to monitor the activity of institutions carried out in other Member States by branch, the supervisory authority works closely with the competent authority of the host Member State. The supervisory authority shall transmit to the competent authority of the host Member State all information relating to the management and ownership of the relevant credit institutions that may facilitate their monitoring and review of the conditions of their approval, as well as any information that may facilitate their follow-up, in particular with regard to liquidity, creditworthiness, deposit guarantee, risk limitation, administrative and accounting organization and internal control mechanisms.
Section V. - Significant Branches
Art. 159. If the competent authority of the host Member State requests the supervisory authority that a branch of a Belgian credit institution established in another Member State be considered to be of significant importance within the meaning of Article 51 of Directive 2013/36/EU, the supervisory authority shall make every effort to arrive, in conjunction with the competent authorities of the host Member States and the consolidated supervisory authority, if the authority of the branch does not
Common decisions referred to in paragraph 1er are presented in a duly substantiated document and are communicated to the relevant authorities of the host Member States.
If no joint decision is made within two months of receipt of an application referred to in paragraph 1er, the supervisory authority must acknowledge the decision of the competent authority of the host Member State, taken no later than two months on the designation of the branch as a significant branch, as a final branch, and apply it.
Art. 160. § 1er. The control authority shall communicate to the competent authorities of the host Member States in which a branch of significant importance is established, the information referred to in Article 180, § 2, paragraph 2, 3 and 4, and perform the tasks referred to in Article 172, § 1erin cooperation with these competent authorities.
§ 2. If the supervisory authority is aware of an emergency situation within the meaning of Article 36/14, § 1er, 1°, paragraph 2 of the Act of 22 February 1998, it shall promptly alert the authorities referred to in the same article.
§ 3. The supervisory authority shall communicate to the competent authorities of the Member States in which branches of significant importance are established, the results of the risk assessment referred to in section 142 and, where applicable, to section 174, § 2, to which it shall submit the establishments with such branches. It also communicates the decisions made under sections 146, 149, 150, 151 and 234, to the extent that these assessments and decisions are of interest to these branches.
§ 4. The supervisory authority shall consult with the competent authorities of the Member States in which branches of significant importance are established on the operational measures required under Article 57, § 5, when this is relevant in relation to the risks of liquidity in the currency of the Member State concerned.
Art. 161. § 1er. Where a college of competent authority has not been established within the meaning of section 178, the control authority shall establish and preside over a credit institution with branches of significant importance in others. Member States, a college of competent authorities to facilitate the outcome of a joint decision on the designation of a branch as a significant branch under section 159 and the exchange of information. The establishment and operation of the College is based on written provisions defined by the supervisory authority after consultation with the relevant authorities of the host Member States. The supervisory authority decides which competent authorities of the host Member States participate in a meeting or in an activity of the college.
§ 2. In its decision on participation in the College, the supervisory authority takes into account the relevance of the monitoring activity to be planned or coordinated for the relevant authorities, including the potential impact on the stability of the financial system of the Member States concerned referred to in Article 156, § 2, and the obligations set out in Article 160.
§ 3. The supervisory authority shall fully and in advance inform all members of the College of the organization of meetings, the main issues to be addressed and the activities to be considered. It also fully and in a timely manner informs all members of the College of the measures taken at these meetings or the actions taken to implement them.
Section VI. - On-site monitoring
Art. 162. § 1er. In the case of credit establishments that operate in another Member State by branch, the supervisory authority may, after informing the competent authority of the host Member State, proceed itself or via an expert that it designates to an on-site inspection of the information referred to in Article 158 and inspect such branches.
§ 2. The inspection authority may also use one of the other procedures referred to in section 214.
§ 3. The supervisory authority shall take due account of the information and findings obtained from the competent authority of the host Member State in the establishment of its prudential control programme, referred to in Article 141, also in view of the stability of the financial system of the Member States in which branches of the credit institution are established.
§ 4. On-site controls and branch inspections by the control authority are conducted in accordance with the law of the Member State where control or inspection takes place.
Section VII. - Situations where a Belgian credit institution
established a branch in a participating Member State
Art. 163. For substances entrusted to the European Central Bank pursuant to section 4 of MSU Regulation, in cases where the latter is the control authority of a credit institution that has established one or more branches in the territory of one or more branches Participating Member States, the provisions on cooperation and exchange of information between competent authorities are not applicable when the European Central Bank is the only competent authority involved.
CHAPTER IV. - Monitoring of the group
Section Ire. - Definitions
Art. 164. § 1er. Without prejudice to the definitions referred to in section 3 of this Act, for the purposes of this Chapter and the orders and regulations made for its execution, it shall be understood by:
1° Financial institution: are considered to financial institutions the offices of postal cheques, the managers of OPCA, the management companies of collective investment organizations, the liquidation bodies referred to in section 36/1, 14°, of the Act of February 22, 1998, as well as the organizations whose activity consists in ensuring, in whole or in part, the operational management of services provided by such liquidation bodies;
2° Financial conglomerate, group or subgroup in which at least one of the subsidiaries is a regulated company and that meets the following conditions:
(a) where a regulated business is at the head of the group or subgroup:
(i) this company is the parent company of a financial sector business, or a company that holds a stake in a financial sector business, or a company related to a financial sector business in the form of a consortium;
(ii) at least one entity in the group or subgroup is an insurance business and at least one entity in the group is a banking or investment services business; and
(iii) the consolidated and/or aggregated activities of the entities of the group or sub-group that are part of the insurance sector, and entities of the banking and investment services sector are important within the meaning of section 186, § 3 of this Act; or
(b) where there is no regulated business at the head of the group or subgroup:
(i) the activities of the group or subgroup are carried out mainly in the financial sector within the meaning of Article 186, § 2;
(ii) at least one entity in the group or subgroup is an insurance business and at least one entity in the group or subgroup is a banking or investment services business; and
(iii) the consolidated and/or aggregated activities of the entities of the group or subgroup that are part of the insurance sector, and entities of the banking and investment services sector are important within the meaning of Article 186, § 3;
3° the financial sector, the sector consisting of one or more of the following companies:
(a) a regulated company with credit establishment status, a financial institution, an auxiliary service undertaking; these companies are all part of the same financial sector called "bank sector";
(b) a regulated company with an insurance or reinsurance status, an insurance holding company; these companies are all part of the same financial sector qualified as the insurance sector;
(c) a regulated company with the status of an investment company, a company that provides auxiliary services within the meaning of section 46, 2°, of the law of 6 April 1995, a financial institution within the meaning of section 46, 7°, of the law of 6 April 1995; these companies are all part of the same financial sector called "investment services sector";
4° Auxiliary services company, a company whose main activity consists of the possession or management of buildings, the management of computer services or a similar activity having an auxiliary character compared to the main activity of one or more credit institutions.
§ 2. Without prejudice to section 3 of this Act and paragrahe 1er of this section, it shall be understood for the purposes of the consolidated control as provided for in Sections II and IV of this Chapter and by the decrees and regulations made for their execution, by:
1° mother credit institution in a Member State, a credit institution that has as a subsidiary a credit institution or a financial institution, or holds an interest in a credit institution or financial institution, and that is not itself a subsidiary of another credit institution approved in the same Member State or of a mixed financial company or financial company incorporated in the same Member State;
2° Belgian parent credit institution, a Belgian credit institution that has as a subsidiary a credit institution or a financial institution, or that holds an interest in such credit institution or financial institution, and that is not itself a subsidiary of another credit institution having its head office in Belgium or of a financial company or mixed financial company having its head office in Belgium;
3° mother credit institution in the EEA, a parent credit institution that is not a subsidiary of another registered credit institution in another Member State or a mixed financial company or financial company incorporated in another Member State;
4° Belgian parent credit institution in the EEA, a Belgian parent credit institution that is not a subsidiary of another registered credit institution in another Member State or a mixed financial company or financial company incorporated in another Member State;
5° mother financial company in a Member State, a financial company that is not itself a subsidiary of an authorized credit institution in the same Member State or of a mixed financial company or financial company incorporated in the same Member State;
6° parent financial company in the EEA, a parent financial company that is not a subsidiary of an authorized credit institution in another Member State or another joint financial company or company incorporated in another Member State;
7° Belgian parent financial company in the EEA, a Belgian parent financial company that is not a subsidiary of an authorized credit institution in another Member State or another mixed financial company or company incorporated in another Member State;
8° mixed financial company mother in a Member State, a mixed financial company that is not itself a subsidiary of an authorized credit institution in the same Member State or of a mixed financial company or financial company incorporated in the same Member State;
9° mixed-mother financial company in the EEA, a mixed-mother financial company that is not a subsidiary of a registered credit institution in one of the Member States or of a mixed financial company or financial company incorporated in one of the Member States;
10° Belgian mixed financial company in the EEA, a joint financial company mother of Belgian law that is not a subsidiary of an authorized credit institution in another Member State or another financial company or mixed financial company incorporated in another Member State;
§ 3. Without prejudice to section 3 of this Act and paragraph 1er of this section, it shall be understood for the purposes of the supplementary monitoring of the conglomerate as provided for in Sections III and IV of this Chapter and by the decrees and regulations made for their execution, by:
1° Competent authorities: the national authorities of the Member States authorized under legal or regulatory provisions to monitor regulated enterprises, whether on an individual basis or at the group level;
2° Relevant authorities:
(a) the competent authorities responsible for the consolidated sectoral monitoring applicable to regulated companies that are part of a financial conglomerate, and in particular to the parent company at the head of a sector;
(b) the coordinator, if not among the authorities referred to in paragraph (a);
(c) where appropriate, other relevant authorities who, in the opinion of the authorities referred to in (a) and (b), are relevant.
Until the entry into force of technical regulation standards adopted in accordance with Article 21bis, paragraph 1 (b) of Directive 2002/87/EC, the notice referred to in point (c) takes into account in particular the market share held by regulated companies of the financial conglomerate in other Member States, in particular if it exceeds 5%, as well as the importance within the financial conglomerate of any regulated company established in another Member State.
3° Coordinator: the competent authority responsible for ensuring further monitoring of conglomerates;
4th European Committee of Financial Conglomerates: the Committee established by Article 21 of Directive 2002/87/EC;
5th Joint Committee: the committee referred to in Article 54, respectively, of Regulation No. 1093/2010, Regulation (EU) No. 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Professional Pension Authority), amending Decision No. 716/2009/7/EC and repealing Decision 2009/77/EC of the Commission and Regulation (EU) No. 1095/2010 of the European Parliament
6° group: all of the companies constituted by the parent company, its subsidiaries, the companies in which the parent company or its subsidiaries hold direct or indirect participation, as well as the companies that constitute a consortium and the companies controlled by them or in which they hold an interest;
7° Sectoral regulation: this Act, the Act of 9 July 1975 on the Control of Insurance Businesses, the Act of 6 April 1995, the Act of 16 February 2009 on reinsurance, the Act of 3 July 2012 on certain forms of collective management of investment portfolios, as well as the decrees and regulations made pursuant to these Acts, with the exception of the provisions relating to the complementary supervision of regulated companies that are part of a conglomerate; comparable national control regulations and practices in other states;
8° Directive 2002/87/EC: Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary monitoring of credit institutions, insurance companies and investment companies owned by a financial conglomerate, and amending Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC and Directives 98/78/EC and 2000/12/EC
9° intragroup transactions: transactions carried out directly or indirectly, on a costly or non-cost basis, between regulated companies and other companies that are part of the same financial conglomerate or natural or legal persons related to these enterprises by close links, whether or not these transactions relate to the performance of a contractual obligation;
10° Risk concentration: all positions that have been taken by companies of a financial conglomerate, which are likely to result in losses, which are important enough to compromise the financial situation in general and the solvency in particular of regulated companies that are part of the said financial conglomerate, and that result from the risks of counterparty/credit, investment, insurance, market or other significant risks, or of other significant risks, or
Section II. - Consolidated-based monitoring of credit institutions
Sub-section Ire. - Scope of application
Art. 165. To the extent and in accordance with the terms and conditions required by Sections II and IV of this Chapter and their decrees and regulations, Belgian law credit institutions:
1° that are a parent company, are subject to control on the basis of their consolidated situation;
2° having as a parent company a parent financial company in a Member State or a parent joint financial company in a Member State, are subject to control on the basis of the consolidated situation of the parent financial company or the parent joint financial company.
Art. 166. Without prejudice to sections 167 to 169, the levels of consolidated base control, their report to the control of individual credit institutions, the object and scope of consolidated base control are determined in Part I, Part II, Chapter 2, of Regulation No. 575/2013, with the exception of sections 15, 16 and 17 of that Regulation.
Art. 167. § 1er. Belgian parent credit institutions shall meet on a consolidated basis the obligations set out in Article 94 to the extent and in the manner provided for in Part I, Part II, Chapter 2, Sections 2 and 3, of Regulation No. 575/2013.
§ 2. Belgian credit institutions that are controlled by a parent financial company or a parent financial company in a Member State shall meet the extent and manner set out in Part I, Part II, Chapter 2, Sections 2 and 3, of Regulation No. 575/2013 to the obligations set out in section 94 on the basis of the consolidated situation of that financial company or of that mixed financial company.
Derogation from paragraph 1erwhere several credit institutions whose head office is established in the European Economic Area are controlled by a parent financial company or a parent joint financial company in a Member State, paragraph 1er applies to the Belgian legal credit institution provided that the supervisory authority is competent for the consolidated base control pursuant to 171.
§ 3. Belgian credit institutions that are a subsidiary shall apply the requirements set out in section 94 on a sub-consolved basis when they themselves, or their parent company if it is a financial company or a mixed financial company in a Member State, have a credit institution, financial institution or a management company of collective investment organizations as a subsidiary in a third country or hold an interest there.
Art. 168. § 1er. Belgian parent credit institutions and Belgian credit institutions that are controlled by a parent financial company or a parent financial company in a Member State must meet on a consolidated or sub-consolved basis in articles 21, 27 to 42, 56 to 59 and 63 to 71, in order to ensure the coherence and proper integration of the devices, processes and mechanisms required by these provisions, to assess the influence of companies included in the consolidated situation on other companies They implement these devices, processes and mechanisms also in their subsidiaries that do not fall under this Act. These devices, processes and mechanisms are coherent and well-integrated and such subsidiaries must be able to provide any information and information that is relevant to monitoring.
§ 2. Obligations arising from the articles cited in paragraph 1er for subsidiaries of third countries does not apply if the Belgian parent credit establishment in the EEA or Belgian credit institutions controlled by a parent financial company in the EEA or by a parent joint financial company in the EEA can demonstrate to the supervisory authority that their application is illegal under the law of that country.
§ 3. Belgian credit institutions that are parent companies publish annually either in their entirety or in return to equivalent information published elsewhere, a description of their legal structure and corporate organizational arrangements applicable to their group of credit institutions, including information referred to in Article 18 and paragraph 1er of this article.
Art. 169. The supervisory authority shall apply to Belgian credit institutions the requirements for periodic information and accounting rules referred to in Article 106, § 1er and § 2, paragraph 1erthe control and evaluation process referred to in sections 142 to 148 and the prudential measures referred to in sections 149 to 152 and 234 to 236 in accordance with the level of application of the requirements of Regulation No. 575/2003 specified in Part I, Part II, Chapter II of the Regulations, as well as to the extent and manner in which the requirements for the assessment of the adequacy of internal capital and facilities, processes and
Art. 170. § 1er. Without prejudice to the application of section 49 of Regulation No. 575/2013, any provision of this Section that applies on the basis of the consolidated situation of the Belgian financial company shall also apply to the level of a mixed financial company of Belgian law, provided that:
1° the banking sector is the main sector within the financial conglomerate;
2° one of the subsidiaries at least or a credit institution;
3° the control authority exercises both the consolidated control and the complementary monitoring of the conglomerate.
For the purposes of paragraph 1erthe importance of the banking sector is measured in accordance with Article 186, § 3.
Where due to the application of paragraph 1er, a joint financial company under Belgian law is subject to equivalent provisions of Section II and Section III of this Chapter, particularly in terms of risk-based control, the supervisory authority may decide to apply to that joint financial company only the relevant provisions of Section III and Section IV of this Chapter, provided that, with respect to Section IV, these provisions relate to consolidated control.
For the application of paragraphs 1er at 3, the supervisory authority, in its capacity as a consolidated monitoring authority, works with the relevant authorities responsible for the control of the subsidiaries and, where relevant, with the group controller in the insurance sector.
The supervisory authority, in its capacity as a consolidated monitoring authority, shall inform the EBA and the European Authority of Insurance and Professional Pensions of the decisions decided under paragraphs 1er to 4 of this paragraph.
§ 2. When a credit institution is part of a financial conglomerate in which the banking sector is the main sector and on which the supervisory authority exercises both the consolidated-based control and the complementary monitoring of the conglomerate, the latter may decide, after consultation with the relevant authorities, that the following measures are applied:
1° in respect of obligations and competencies relating to risk-based control, as described in Articles 167 to 169, or parts thereof, the group, as defined in Article 164, § 3, shall, by derogation, be taken into account in respect of the relevant scope for consolidated base control;
2° for compliance with sections 191 to 194, group risks arising from intra-group operations and concentration of risks within the financial conglomerate are treated as an additional risk category for purposes of Appendix I. These risks are addressed in a sufficiently specific manner, while respecting the guidelines or standards issued by the European Monitoring Authorities, as well as the quantitative and qualitative measures referred to in the articles first cited;
3° for compliance with Article 195, the targeted crisis simulations can be integrated at the financial conglomerate level in the required crisis simulations based on Article 148.
§ 3. The practical terms and conditions relating to the application of paragraph 2 are documented in a coordination regulation. The supervisory authority shall consult with the relevant authorities within the meaning of Article 164, § 3, in the college constituted in the manner required on the basis of Article 199.
Sub-section II. - Measures
to facilitate consolidated baseline control
Art. 171. § 1er. The consolidated control of a Belgian credit institution, as referred to in section 165, is exercised as follows:
1° if it is a Belgian mother's credit institution or a Belgian mother's credit facility in the EEA, by the supervisory authority;
2° if its parent company is a Belgian mother financial company or a Belgian mother financial company or a Belgian mother financial company in the EEA or a Belgian mixed financial company in the EEA, by the supervisory authority, without prejudice to points 3°, 4° and 5°;
3° if its parent company is a parent financial company in a member state or a parent joint financial company in a member state or a parent financial company in the EEA or a parent joint financial company in the EEA, with, in the member state of the head office of the EEA, a subsidiary that is a credit institution, by the competent authorities of that member State;
4° if several mixed financial companies or financial companies having their central administration in different Member States are the parent company of credit institutions in different Member States, including a Belgian credit institution, and that there is a credit institution in each of the said states, by the competent authorities of the credit institution with the highest balance sheet;
5° if several credit institutions in different Member States, including a Belgian credit institution, have as a parent company the same financial company or mixed financial company and that none of these credit institutions have been approved in the Member State in which the mixed financial company or financial company has been formed, by the competent authorities for the credit institution that displays the highest balance sheet. This credit institution will be considered for the purposes of this Act as the credit facility controlled by a parent financial company in the EEA or a parent joint financial company in the EEA.
§ 2. In particular cases, the supervisory authority and the relevant competent authorities may, in common agreement, not apply the criteria defined in paragraph 1er, 3°, 4° and 5°, as long as their application would be inappropriate in respect of the credit institutions concerned and the relative importance of their activities in the different Member States, with a view to an effective organisation of the consolidated control. They may charge another competent authority to exercise consolidated control.
In such cases, before making their decision, the competent authorities, including the supervisory authority, shall, as the case may be, give to the financial companies and mixed financial companies concerned or to the credit institution with the highest balance sheet, if any, the opportunity to give its opinion on this decision.
For the purposes of paragraph 1erthe supervisory authority shall enter into agreements with the competent authorities concerned, if applicable in accordance with the provisions of Articles 36/14, § 1er, 3°, and 36/16, § 2, of the law of 22 February 1998.
If the supervisory authority is responsible for consolidated control, it informs the European Commission, the EBA and the relevant mixed financial companies or financial companies or the credit institution that shows the highest balance sheet of the group.
Art. 172. § 1er. Without prejudice to the other skills and tasks assigned to it by or under this Act as well as by Regulation No. 575/2013, the supervisory authority shall, as a consolidated monitoring authority, perform the following tasks:
1° coordination of the collection and dissemination of relevant or essential information within the framework of its control, in continuity of operation and in emergencies;
2° the planning and coordination, in cooperation with the relevant authorities, of operational continuity monitoring activities, including with respect to the activities covered by this Section and Section IV of this Chapter, however, with respect to Section IV, that these activities relate to consolidated control;
3° planning and coordination of monitoring activities in cooperation with the relevant authorities and, if necessary, with the central banks of the European System of Central Banks, in preparation for and during emergencies, especially in the event of a negative change in the situation of credit institutions or financial markets, using, if possible, existing channels of communication to facilitate crisis management. The above-mentioned planning and coordination includes the adoption of exceptional measures, the development of joint evaluations, the implementation of contingency plans and the provision of information to the public.
§ 2. Where a competent authority concerned does not cooperate with the supervisory authority, in its capacity as a consolidated monitoring authority, to the extent required to perform the tasks referred to in paragraph 1er, the latter may refer to the EBA and request assistance under section 19 of Regulation No. 1093/2010.
Art. 173. When a competent authority of another Member State, in its capacity as a consolidated monitoring authority, fails to perform the tasks referred to in Article 112 of Directive 2013/36/EU, the supervisory authority may refer to the EBA and request its assistance under Article 19 of Regulation No. 1093/2010.
Art. 174. § 1er. The supervisory authority, in its capacity as a consolidated monitoring authority, shall do everything in its power to achieve, with the competent authorities responsible for the control of credit institutions that are subsidiaries of a parent credit institution in the EEA, a parent financial company in the EEA or a parent joint financial company in the EEA, a joint decision:
1° on the application of sections 94 and 142 in order to determine the adequacy of the consolidated level of equity held by the group of credit institutions in respect of its financial situation and risk profile and the level of equity required for the purposes of the application of sections 149 and 150 to each entity of the credit establishments group and on a consolidated basis.
2° on measures to be taken in response to any significant issues and material recognition affecting the control of liquidity, including on the adequacy of the organization and the treatment of the risks required in accordance with Article 8 of Appendix I, and on the need to have liquidity requirements specific to the establishment in accordance with Article 151 of this Act.
§ 2. Common decisions referred to in paragraph 1er are taken:
1° for the purposes of paragraph 1er1°, within a period of four months from the date on which the supervisory authority, in its capacity as a consolidated monitoring authority, submits to the relevant authorities a report containing the risk assessment of the credit facility group in accordance with sections 94, 142, 149 and 150.
2° for the purposes of paragraph 1er2°, within one month of the date on which the supervisory authority, in its capacity as a consolidated monitoring authority, shall submit to the competent authorities concerned a report containing the assessment of the liquidity risk profile of the credit facility group in accordance with section 151 and section 8 of Schedule I.
Joint decisions take duly into account risk assessments for subsidiaries carried out by the relevant authorities in accordance with articles 73 and 97 of Directive 2013/36/EU.
In the event of disagreement, the supervisory authority, in its capacity as a consolidated monitoring authority, consults the EBA at the request of a competent authority concerned or on its own initiative. In this case, it takes into account the EBA's opinion and, in the event of a manifest derogation in this opinion, it explains the reasons.
Common decisions are set out in a document containing the duly reasoned decision. This document is communicated by the supervisory authority, as a consolidated monitoring authority, to the parent credit establishment in the EEA, to the parent financial company in the EEA or to the parent joint financial company in the EEA.
§ 3. If the supervisory authority, in its capacity as a consolidated monitoring authority, and the competent authorities concerned do not reach a common decision within the time limits specified in paragraph 2, the following terms and conditions apply:
1° with respect to the consolidated level, the decision on the application of the articles referred to in points 1° and 2° of paragraph 1er is taken by the supervisory authority as a consolidated monitoring authority after an appropriate review of the risk assessment of the subsidiaries carried out by the relevant authorities. If, within one of the time limits referred to in paragraph 2, one of the competent authorities concerned has seized the EBA in accordance with section 19 of Regulation No. 1093/2010, the supervisory authority, in its capacity as a consolidated monitoring authority, differentiates its decision and awaits any decision that the EBA may decide. It is pronounced in accordance with the EBA decision.
2° with respect to the individual or sub-consolidated level, the supervisory authority in its capacity as a consolidated monitoring authority shall formulate its views and reservations before the competent authorities responsible for the control of the subsidiaries of the parent credit institution in the EEA, the parent financial company in the EEA or the parent joint financial company in the EEA shall make their decision with respect to the application of the items referred to in paragraph 1er for these levels. The supervisory authority in its capacity as a consolidated monitoring authority may apply to the EBA until the deadlines referred to in paragraph 2 have expired and as long as no common decision has been taken, pursuant to Regulation No. 1093/2010, section 19.
The supervisory authority, in its capacity as a consolidated monitoring authority, incorporates decisions taken at the individual or sub-consolidated level to the consolidated decision and sends the entire document to all relevant authorities, as well as to the parent credit establishment in the EEA, the parent financial company in the EEA or the parent joint financial company in the EEA.
§ 4. Without prejudice to section 176, 2°, decisions relating to the application of sections 149 to 151 may be updated in exceptional cases, if a competent authority responsible for the control of a credit institution that is a subsidiary of a parent credit institution in the EEA, a parent financial company in the EEA or a parent joint financial company in the EEA, shall, to this effect, issue a written request with due respect to its monitoring authority.
The update can be done on a bilateral basis between the control authority, as a consolidated monitoring authority, and the competent authority concerned.
Art. 175. § 1er. The supervisory authority, in its capacity as the competent authority responsible for the control of a Belgian credit institution that is a subsidiary of a parent credit institution in the EEA, a parent financial company in the EEA or a parent joint financial company in the EEA, shall do all in its power to arrive, with the consolidated supervisory authority, to a joint decision on the applications and measures referred to in § 174,er.
The supervisory authority shall transmit to the consolidated monitoring authority its risk assessment under sections 94 and 142 for the subsidiary as referred to in paragraph 1er.
In the event of disagreement, it may request the consolidated monitoring authority to consult the EBA.
§ 2. Failure to make a common decision referred to in paragraph 1er, the following terms and conditions apply:
1° the control authority as referred to in paragraph 1er takes the decision as to the application of the provisions referred to in Article 174, § 1er on an individual or sub-consolved basis for subsidiaries for which it is the competent authority. In this regard, it takes due account of the views and reservations made by the consolidated monitoring authority and defers its decision if the consolidated monitoring authority or other competent authority has seized the EBA in accordance with section 19 of Regulation No. 1093/2010. In this case, the decision is made in accordance with the EBA decision.
2° The control authority as referred to in paragraph 1er transmits to the consolidated monitoring authority its views and reservations regarding the decision that this consolidated monitoring authority will take on the application of the provisions referred to in Article 174, § 1erfor the consolidated level. The control authority may refer to the EBA in accordance with Article 19 of Regulation No. 1093/2010, until the deadlines referred to in Article 174, § 2, and as long as no common decision has been taken.
§ 3. Without prejudice to section 176, 2°, the control authority as referred to in paragraph 1er may require, in exceptional cases, to update decisions regarding the application of sections 149 to 151. For this purpose, it shall issue a written request duly substantiated to the consolidated monitoring authority.
The update can be made on a bilateral basis between the control authority and the consolidated monitoring authority.
Art. 176. Common decisions and decisions taken in the absence of a common decision, as referred to in sections 174 and 175:
1° are recognized as final by the supervisory authority and applied, if applicable, in Belgium;
2° are updated every year.
Art. 177. With a view to promoting and establishing effective monitoring, the supervisory authority as a consolidated monitoring authority and the relevant authorities conclude the necessary written coordination and cooperation agreements. These agreements may entrust additional tasks to the supervisory authority as a consolidated monitoring authority and may provide procedures for the decision-making process and cooperation with the relevant authorities.
Art. 178. § 1er. The supervisory authority as a consolidated monitoring authority shall establish colleges of competent authorities in order to facilitate the control of the subsidiaries, and in particular the exercise of the tasks referred to in sections 172 to 176 of this Act and in section 114 of Directive 2013/36/EU, and shall ensure appropriate coordination and cooperation with the competent authorities of third countries, if necessary.
The EBA is considered a competent authority for the application of this provision.
In the colleges of competent authorities, the supervisory authority, in its capacity as a consolidated monitoring authority, carries out the following tasks with the relevant authorities:
1° they exchange information with each other and with the EBA in accordance with Regulation No. 1093/2010, Article 21;
2° they agree to assign tasks and delegate skills on a voluntary basis, if applicable;
3° they define prudential control programmes as referred to in Article 99 of Directive 2013/36/EU on the basis of a group risk assessment conducted in accordance with Article 97 of Directive 2013/36/EU;
4° they reinforce the effectiveness of the control by avoiding unnecessary duplication of the requirements for monitoring purposes, particularly with regard to requests for information referred to in Articles 114 and 117, § 3 of Directive 2013/36/EU;
5° they apply the prudential requirements set out in Directive 2013/36/EU and Regulation No. 575/2013 in a consistent manner to all entities of a group of credit institutions;
6° they take into account, in the application of Article 172, § 1er, 3° of this Act, work of other premises that may exist in this area.
§ 2. The supervisory authority, in its capacity as a consolidated monitoring authority, shall work closely with the competent authorities involved in the colleges of competent authorities and the EBA. The constitution and functioning of colleges do not prejudice the rights and responsibilities of the competent authorities under Directive 2013/36/EU and Regulation No. 575/2013.
§ 3. After consultation with the competent authorities concerned, the supervisory authority, in its capacity as a consolidated monitoring authority, sets out by the written agreements referred to in Article 177 the rules for the formation and operation of the colleges.
§ 4. The supervisory authority, as a consolidated monitoring authority, may invite to participate in one of the colleges it has established:
1° the authorities responsible for the control of credit institutions that are subsidiaries of a Belgian parent credit institution, a parent financial company in the EEA or a parent joint financial company in the EEA concerned by the consolidated control it carries out;
2° the competent authorities of a host Member State in which branches of significant importance are established within the meaning of Article 51 of Directive 2013/36/EU;
3° where applicable, the central banks of the European Central Bank System;
4° the authorities of third countries, provided that the requirements, including equivalence, are met, arising from the professional secret regime provided for in Directive 2013/36/EU.
§ 5. The supervisory authority, as a consolidated monitoring authority, chairs the meetings of the college and decides which competent authorities participate in a meeting or in an activity of the college. It fully informs all members of the College in advance of the organization of meetings, the main issues to be addressed and the activities to be considered. It also informs all members of the College in a timely manner of the measures taken at these meetings or the actions taken.
§ 6. The decision taken by the supervisory authority, in its capacity as a consolidated monitoring authority pursuant to paragraph 5, takes into account the relevance of the monitoring activity to be planned and coordinated for these authorities, including the potential impact on the stability of the financial system of the Member States concerned referred to in Article 134, § 2, as well as the obligations referred to in Article 160.
§ 7. The supervisory authority, in its capacity as a consolidated monitoring authority, shall inform the EBA of the activities of the Competent College of Authorities, including activities in emergency situations, and shall communicate to it all relevant information for the purpose of the monitoring convergence.
§ 8. In the event of disagreement between the supervisory authority, in its capacity as a consolidated monitoring authority, and the competent authorities concerned on the functioning of the competent colleges of authority, it may refer to the EBA and request its assistance, in accordance with Regulation No. 1093/2010, section 19.
Art. 179. The supervisory authority, in its capacity as the competent authority responsible for the control of Belgian credit institutions that are subsidiaries of a parent credit institution in the EEA, a parent financial company in the EEA or a parent joint financial company in the EEA, participates in the colleges of competent authorities established by the consolidated supervisory authority.
In the event of disagreement between the control authority, as referred to in paragraph 1er, and the consolidated monitoring authority or other relevant authorities, on the operation of the control boards, it may refer to the EBA and request assistance in accordance with section 19 of Regulation No. 1093/2010.
Art. 180. § 1er. The supervisory authority closely cooperates, for the exercise of consolidated control, with the competent authorities who have granted approval to credit institutions under consolidated control. It may communicate or request confidential information to these competent authorities, where such information is of essential or relevant importance to the exercise of the monitoring tasks entrusted to it or to those competent authorities under Directive 2013/36/EU and Regulation No. 575/2013. For this purpose, they shall communicate, upon request, any relevant information and, on their own initiative, any essential information.
As a consolidated monitoring authority, the supervisory authority shall transmit all relevant information to the competent authorities responsible for the control of subsidiaries of parent establishments in the EEA, parent financial companies in the EEA or joint parent financial companies in the EEA. The scope of the relevant information is determined taking into account the importance of these subsidiaries in the financial system of these Member States.
§ 2. The information referred to in paragraph 1er are considered essential if they may have a significant impact on the assessment of the financial strength of a credit or financial institution.
For the purposes of paragraph 1er any information concerning:
1° the legal structure of the group, as well as its organizational structure, including the management structure, in accordance with Articles 22 and 168, § 1erencompassing all regulated entities, non-regulated entities, non-regulated affiliates, significant branch offices owned by the group and parent companies, as well as the identification of competent authorities within the regulated entities of the group;
2° the procedures governing the collection of information from the group's credit institutions and the verification of such information;
3° the negative changes experienced by credit institutions or other entities of the group, which are likely to seriously affect credit institutions that are part of the group;
4° the significant sanctions and exceptional measures decided by the competent authorities in accordance with Directive 2013/36/EU, including the imposition of a specific requirement of equity or a limitation to the application of the advanced measurement approach for the calculation of the requirements of equity under section 312, paragraph 2, of Regulation No. 575/2013.
§ 3. For the purposes of this section, the supervisory authority, in its capacity as the competent authority responsible for the control of Belgian credit institutions that are subsidiaries of a parent credit institution in the EEA, a parent financial company in the EEA or a parent joint financial company in the EEA, contacts, if possible, the consolidated monitoring authority when it needs information, whose authority
§ 4. The control authority may refer the EBA in the following cases:
1° a competent authority has not provided essential information;
2° a request for cooperation, in particular for the exchange of relevant information, was rejected or was not honored within a reasonable time.
Art. 181. The supervisory authority shall consult with the other competent authorities involved in consolidated control before making a decision on the following points:
1° of changes in the structure of the shareholder, the organizational structure or direction of credit institutions that are part of a group, and requiring approval or approval by the competent authorities in accordance with the provisions of Directive 2013/36/EU;
2° the significant sanctions and exceptional measures decided by the competent authorities in accordance with Directive 2013/36/EU, including the imposition of a specific requirement of equity, or a limitation to the use of the advanced measurement approach for the calculation of the requirements of equity under section 312, paragraph 2 of Regulation No. 575/2013.
However, the supervisory authority may decide not to consult with other competent authorities in the event of an emergency or where such consultation may compromise the effectiveness of its decisions. In such a case, it shall promptly inform the other competent authorities after making its decision.
By derogation from paragraph 2, the supervisory authority, in its capacity as the competent authority responsible for the control of Belgian credit establishments that are subsidiaries of a parent credit institution in the EEA, a parent financial company in the EEA or a parent joint financial company in the EEA, must always consult the consolidated supervisory authority when considering making a decision such as referred to in paragraph 1erTwo.
Art. 182. When a credit institution, a financial company, a joint financial company or a joint Belgian legal company is the parent company of one or more companies that are insurance companies or other companies providing approved investment services, the supervisory authority works closely with the authorities invested in the public monitoring mission of insurance companies or other companies providing investment services. Without prejudice to their respective jurisdictions, the supervisory authority may request or provide these authorities with any information that may facilitate the exercise of their respective tasks and permit the monitoring of the activity and financial situation of all companies under their supervision.
Sub-section III. - Other cases of application
Art. 183. § 1er. If a mixed company has one or more subsidiaries that are credit institutions of Belgian law, the supervisory authority may request all the data and information it considers useful for the exercise of its control, on a social and consolidated basis, of these credit institutions, either directly to the mixed company or through the subsidiaries cited. In the latter case, the mixed company remains, with the reporting credit institution, responsible for the correctness and timely communication of the information provided.
If the mixed company referred to in paragraph 1er is a company of Belgian law, it has an adequate administrative and accounting organization and internal control to ensure that the information and information to be provided is correct and consistent with the applicable rules.
§ 2. The control authority may control on-site the data and information provided pursuant to paragraph 1er.
If the mixed company or one of its subsidiaries is established in a Member State other than Belgium, the on-site control of the information shall be carried out according to the procedure set out in Article 214. If this joint company or one of its subsidiaries is an insurance company, the procedure set out in section 182 may also be applied.
When the mixed company or one of its subsidiaries has its head office outside the European Economic Area, the terms and conditions of execution of the provisions of paragraph 1er shall be established in agreements between the supervisory authority and the competent foreign authorities concerned, where applicable in accordance with Article 36/16, § 2 of the Act of 22 February 1998.
§ 3. The control authority may verify the correct and complete nature of the information and information provided pursuant to paragraph 1er :
1° when the reporting company is a Belgian legal company, by the authorized commissioner of this company;
2° when the reporting company established its head office outside Belgium, by the authorized commissioner of the Belgian law credit establishment that the mixed company has as its subsidiary.
With respect to information and information from joint companies and their subsidiaries, the right referred to in section 211 applies by analogy to the authorized commissioners.
§ 4. The information and information referred to in paragraph 1er shall allow the supervisory authority to assess, inter alia, the following aspects: the solidity of Belgian credit institutions, the influence of the mixed company on the management of these credit institutions, and the operations of credit institutions with the mixed company and its subsidiaries, without prejudice to the provisions of Part IV of Regulation No. 575/2013.
§ 5. Credit institutions referred to in paragraph 1er have risk management processes, as well as adequate internal control mechanisms, including sound information and accounting procedures, to detect, measure, monitor and control transactions with their parent joint company and subsidiaries in an appropriate manner. In addition to the transactions referred to in section 394 of Regulation No. 575/2013, they must also report all other significant transactions with these entities. These procedures and transactions of significant importance are subject to control by the control authority.
§ 6. If the nature and extent of the transactions referred to in paragraph 5 compromise the financial situation of the Belgian credit institution concerned, the supervisory authority shall take appropriate measures. In this context, it applies, by analogy, the underlying principles of Articles 205 to 207 concerning compatibility with the law of the existing companies. Without prejudice to other possible measures, it may require that these operations be terminated.
Art. 184. The provisions on cooperation and exchange of information between the competent authorities of the various Member States for the exercise of consolidated control under this Act and Regulation No. 575/2013 are not applicable when under MSU Regulation, the European Central Bank is the only competent authority involved.
Section III. - Complementary monitoring of conglomerates
Sub-section Ire. - Scope of application
Art. 185. To the extent and in accordance with the terms and conditions set out in Sections III and IV of this Chapter and their decrees and regulations of execution, Belgian legal credit institutions
1° that are at the head of a financial conglomerate; or
2° whose parent company is a mixed financial company having its seat in a Member State
are subject to additional monitoring of conglomerates.
If several regulated companies are subsidiaries of the mixed financial company referred to in paragraph 1er, 2°, the supplementary monitoring of the conglomerate applies only to the establishment of Belgian law credit, provided that the supervisory authority is competent for the additional monitoring of the conglomerate under section 196.
Art. 186. § 1er. To determine whether a group is a financial conglomerate within the meaning of Article 164, § 1er, 2°, the thresholds defined in the following paragraphs are applied.
§ 2. The activities of a group are deemed to be carried out mainly in the financial sector within the meaning of Article 164, § 1er, 2°, point (b), (i), if the ratio between the total of the joint balance of the companies of the financial sector group and the total of the joint balance of all the companies of the group exceeds 40%.
§ 3. Businesses of a group that are part of the same financial sector are deemed to be important within the meaning of Article 164, § 1er, 2°, point (a), (iii) or (b), (iii) if:
1° the average of the following two reports is greater than 10%: the ratio between the total of the common balance sheet of all the companies in the group that are part of the same financial sector and the total of the joint balance sheet of all the companies in the group that belong to the financial sector, and the relationship between the common solvency requirements of all the companies in the group that are part of the same financial sector and the common solvency requirements of all the companies
2° is the total of the joint balance sheet of companies that are part of the largest financial sector in the group is over 6 billion euros.
For the purposes of paragraph 1er :
1° the banking sector and the investment services sector are aggregated and considered to be part of the same financial sector;
2° the least important financial sector within a financial conglomerate means the financial sector that has the lowest average and the largest financial sector within a financial conglomerate is the sector that has the highest average.
§ 4. Competent authorities may agree not to consider a group as a financial conglomerate or not to apply the provisions of Articles 7, 8 and 9 bis of Directive 2002/87/EC, if they consider that the inclusion of the group in the scope of the complementary monitoring of conglomerates or the application of these provisions is not necessary, or inappropriate or confusing in respect of the objectives
1° if the group reaches the threshold referred to in paragraph 3, paragraph 1er2°, but the average referred to in paragraph 3, paragraph 1er1° does not exceed 10%;
2° if the group reaches the average referred to in paragraph 3, paragraph 1er1°, but the least important sector remains under the amount of 6 billion euros referred to in paragraph 3, paragraph 1erTwo.
Decisions made pursuant to paragraph 1er shall be communicated to the other competent authorities, and shall be published, except in exceptional circumstances, by the competent authorities.
§ 5. For the purposes of paragraphs 2 to 4, the relevant authorities may agree:
1° not to include a company in the calculation of the thresholds, for the same reason that this company may, pursuant to section 190, paragraph 2, not be included in the calculation of the additional solvency requirements, except in the case where the entity has been transferred from a Member State to a third country and where it is shown that it has changed its operation to the sole purpose of avoiding the regulation;
2° to consider as a financial conglomerate a group that no longer meets the thresholds set out in paragraphs 2 to 4, but has met it for three consecutive years, so as to avoid a sudden change in monitoring regime, or to make another decision, or to reconsider an earlier decision, in the event of a significant and lasting change in the structure of the group;
3° to exclude one or more participations in the least important sector if these participations are decisive for the identification of a group as a financial conglomerate and if, collectively, they have a negligible interest in the objectives of complementary monitoring.
If a group is qualified as a financial conglomerate in accordance with paragraphs 2 to 4, the decisions referred to in paragraph 1er of this paragraph shall be taken on the basis of a proposal by the supervisory authority if it is a coordinator.
§ 6. For the purposes of paragraph 2 and paragraph 3, paragraph 1er, 1°, relevant authorities may, in exceptional cases and in common agreement, replace or supplement the criterion based on the total of the common balance by one of the following parameters or by several of them, if they consider that these parameters, in view of the objectives of the complementary monitoring of the conglomerates, better reproduce the activity of the group; these parameters are the income structure, the group's off-balance operations and the total assets under management. The control authority, as coordinator, defines the method of calculating these parameters.
§ 7. If a financial conglomerate subject to supplementary monitoring no longer meets one or more of the thresholds set out in paragraphs 2 to 4, these thresholds are replaced for the following three years by the following thresholds: 40% becomes 35%, 10% becomes 8% and 6 billion euros becomes 5 billion euros, in order to avoid sudden changes in the regime.
Derogation from paragraph 1er, the supervisory authority, as coordinator, may decide, with the agreement of the other relevant authorities, not or no longer apply these lower thresholds during the three-year period referred to above, taking into account the objectives of the complementary monitoring of the conglomerate.
§ 8. The calculations for the total of the common balance, as referred to in this article, are carried out on the basis of the aggregate balance of the companies that are part of the group, starting from their most recent annual accounts, according to the rules defined by the supervisory authority if it is coordinator. Companies in which the group holds participations are taken into account in the amount of their total balance sheet, which corresponds to the aggregate share held by the group. If, for a specific group or parts of the group, consolidated accounts are established, the calculations are made from these accounts.
The solvency requirements referred to in this section are calculated according to the provisions of the sectoral regulations applicable to the regulated enterprises concerned.
§ 9. Competent authorities reassess on an annual basis the exemptions to the application of the complementary monitoring of the conglomerate and examine the quantitative indicators provided for in this Article as well as risk-based assessments of financial groups.
Art. 187. § 1er. The supervisory authority shall verify whether the credit institutions approved under Belgian law are part of a financial conglomerate. It operates in close collaboration with the other competent authorities of other regulated companies belonging to this group that are accredited in accordance with European law. If the supervisory authority considers that the group in question is a financial conglomerate and that the latter is not already subject to additional monitoring of the conglomerate, it advises other relevant authorities and the joint committee.
§ 2. The supervisory authority, in its capacity as coordinator, informs the parent company of the group or, in the absence of a parent company, the regulated company that displays the highest balance sheet in the largest financial sector of the group, as the group was identified as a financial conglomerate and was designated as a coordinator. It also informs the competent authorities of the regulated companies belonging to this group which are accredited in accordance with European law, the competent authorities of the State in which the joint financial company has its head office, the joint committee, and, if it deems it necessary in view of the objectives of the complementary monitoring of the conglomerates, the authorities of third countries.
Art. 188. The credit institutions referred to in section 185 meet the requirements of sections 191 to 195 at the financial conglomerate level. This scope of the complementary monitoring of conglomerates corresponds to all regulated or non-regulated enterprises, which are part of the group as defined in Article 164, § 3, taking as a starting point the credit institution which is at the head of the financial conglomerate or the mixed financial company whose seat is established in the European Economic Area.
Art. 189. When a financial conglomerate is itself part of another financial conglomerate subject to further monitoring of the conglomerates, the supervisory authority, in its capacity as coordinator, may exempt, in whole or in part, the credit institutions referred to in section 185 that are part of the subgroup, from the complementary monitoring of the conglomerate if the objectives of the conglomerate are sufficiently met by the complementary monitoring
Art. 190. § 1er. Without prejudice to the application of section 49 of Regulation No. 575/2013, the credit institutions referred to in section 185 are subject to additional monitoring of solvency at the group level. Additional monitoring includes:
1° compliance with the requirement that clean funds be permanently available at the financial conglomerate level and at least equal to solvency requirements; clean funds and solvency requirements at the financial conglomerate level are calculated using one of the methods defined in Appendix VI;
2° the adequacy of the management procedures and internal controls relating to the solvency of the group, in accordance with the provisions of Article 194;
3° the adequacy of equity strategies.
The requirements referred to in paragraph 1er are under the control of the control authority, in its capacity as coordinator, in accordance with subsection II. It ensures that the calculation referred to in paragraph 1er at least once a year. The results of the calculation and the relevant data on which it is based are submitted to it by the credit institution, by the mixed financial company, or by a regulated company that is part of the financial conglomerate designated by the control authority after consultation with other relevant authorities and the financial conglomerate.
§ 2. By derogation from the scope of the complementary monitoring of the conglomerates referred to in section 188, all companies in the group, which are part of the financial sector, are subject to the supplementary monitoring of solvency for the purposes of paragraph 1erParagraph 1er1°.
Derogation from paragraph 1er, the supervisory authority, in its capacity as coordinator, may decide, in the following cases, not to include a particular undertaking within the scope of the supplementary monitoring of solvency referred to in paragraph 1erParagraph 1er1°:
1° if the company is located in a third country where legal obstacles prevent the transfer of the necessary information, without prejudice to the sectoral rules requiring the competent authorities to refuse approval when the effective exercise of their oversight function is prevented;
2° if the company has a negligible interest in the objectives of the complementary monitoring of regulated companies owned by a financial conglomerate;
3° if its inclusion is inappropriate or may lead to confusion, with respect to the objectives of the complementary monitoring of conglomerates.
However, if several companies are to be excluded in the case referred to in paragraph 2, 2°, they should be included as long as, collectively, they have a significant interest.
In the case referred to in paragraph 2, 3°, the supervisory authority, in its capacity as coordinator, consults, except in the case of an emergency, other relevant authorities before deciding.
Art. 191. § 1er. The credit institutions referred to in section 185 are subject to additional risk concentration monitoring.
Additional monitoring includes:
1° identification and reporting of significant risk concentrations;
2° the adequacy of the management procedures and internal control mechanisms in respect of the group's risk concentration, in accordance with the provisions of Article 194.
In particular, monitoring focuses on the following aspects: the so-called risk of contagion within the group, the existence of conflicts of interest, the contours of sectoral regulation, and the level and extent of risk concentration.
§ 2. For the purposes of paragraph 1er, paragraph 2, 1°, the control authority shall, in its capacity as coordinator, establish, in consultation with other relevant authorities and after consultation with the financial conglomerate, the thresholds for the identification and reporting of each major risk concentration within the financial conglomerate. It determines the thresholds on the basis of the following two parameters or one of these parameters only: regulatory funds and technical provisions.
If no threshold has been established, risk concentrations are deemed to be significant if they exceed 10% of the solvency requirement of the financial conglomerate in question.
§ 3. Without prejudice to the provisions of paragraph 1er, the control authority may, as coordinator, impose standards of limitation or other equivalent monitoring measures for controlling the concentration of risks at the level of a financial conglomerate. In order to oppose the bypassing of sectoral risk concentration regulations, it may also decide, in accordance with Article 170, to apply, by analogy, the sectoral provisions on the subject at the financial conglomerate level. It consults with other relevant authorities.
Art. 192. § 1er. The credit institutions referred to in section 185 are subject to additional monitoring of intragroup transactions.
Additional monitoring includes:
1° identification and reporting of significant intragroup transactions;
2° the adequacy of management procedures and internal control mechanisms for intragroup operations, in accordance with the provisions of Article 194.
In particular, monitoring focuses on the following aspects: the so-called risk of contagion within the group, the existence of conflicts of interest, the bypassing of sectoral regulations, and the level and extent of intragroup operations.
§ 2. For the purposes of paragraph 1er, paragraph 2, 1°, the supervisory authority shall, in its capacity as coordinator, establish, in consultation with other relevant authorities and after consultation with the financial conglomerate, adequate thresholds for the identification and reporting of any significant intragroup operation. It determines the thresholds on the basis of the following two parameters or one of these parameters only: regulatory funds and technical provisions.
If no threshold has been set, intragroup operations are deemed to be important if they exceed 5% of the solvency requirement of the financial conglomerate in question.
§ 3. Without prejudice to the provisions of § 1er, the control authority may, as a coordinator, impose standards of limitation or other equivalent monitoring measures for the achievement of the objectives of the complementary monitoring of the conglomerate in relation to intragroup operations. In order to oppose the bypassing of sectoral regulations on intra-group transactions, it may also decide, in accordance with section 170, to apply, by analogy, the sectoral provisions on intra-group transactions at the financial conglomerate level. It consults with other relevant authorities.
Art. 193. § 1er. For the complementary monitoring of the conglomerate regulated by sections 190 to 192, the following states are submitted to the control authority, in its capacity as coordinator, according to the terms and conditions it determines, and at least twice a year:
1° an accounting statement covering the financial situation of the financial conglomerate and comprising at least the balance sheet and the results account.
2° a state of compliance with the standards defined by or in execution of Article 190, § 1erParagraph 1er, 1°, of Article 191, § 3, and of Article 192, § 3, as well as a state of significant risk concentrations and significant intragroup operations referred to in Article 191, § 1er, paragraph 2, 1°, and section 192, § 1erParagraph 2, 1°.
To this end, the supervisory authority shall determine, in its capacity as coordinator, in consultation with other relevant authorities, the categories of operations, risks and positions that must be notified for monitoring the concentration of risks and significant intragroup operations; In this regard, it may take into account the specificities of the group structure and risk management of the financial conglomerate concerned.
§ 2. The statements referred to in paragraph 1er are notified by the credit institution, the mixed financial company, or a regulated company that is part of the financial conglomerate designated by the control authority after consultation with other relevant authorities and the financial conglomerate.
Art. 194. § 1er The credit institutions referred to in section 185 must ensure that the financial conglomerate has adequate risk management and internal control procedures, as well as an administrative and accounting organization.
In particular, these risk management procedures and these internal controls must be present at the consolidated and sub-consolidated level in the parent companies referred to in section 185, whether the credit or the mixed financial company at the head of the financial conglomerate, as well as in all regulated companies assessed as part of the financial conglomerate, so that the procedures of risk management and internal control These parent companies apply these risk management procedures and internal controls also in their unregulated subsidiaries. These risk management procedures and internal controls are also coherent and well integrated, and these subsidiaries must also be able to provide the relevant data and information for monitoring.
§ 2. Risk management procedures include:
1° adequate administration and management, with periodic approval and evaluation of the strategy and policy by the competent bodies, covering all significant risks at the financial conglomerate level;
2° an adequate solvency policy, which notably ensures that the group anticipates the future consequences of the operating strategy followed on the group's risk profile and the solvency requirements referred to in section 190;
3° of the appropriate procedures to ensure that risk management and monitoring systems are sufficiently integrated into the organization of the group and that the systems used in the companies of the group agree with each other, so that at the level of the financial conglomerate, the risks are subject to proper identification, monitoring and control.
4° of regularly updated devices to participate in the implementation and, where appropriate, in the development of appropriate mechanisms and plans for recovery and resolution of failures.
§ 3. Internal controls include:
1° of the appropriate procedures for the monitoring of solvency at the group level, so that all significant risks are properly identified and monitored and that the equity is sufficient in relation to the risks involved;
2° Review of the adequacy of procedures and systems for the identification, measurement, monitoring and control of intragroup operations and risk concentrations.
§ 4. Credit institutions must have an administrative and accounting organization that ensures that the information and information provided for the further monitoring of the conglomerate and the preparation of the annual accounts is correct and consistent with the existing rules.
Credit institutions must ensure transparency of the group structure. The credit establishment, the joint financial company or a regulated company that is part of the financial conglomerate that the supervisory authority, in its capacity as coordinator, has designated after consultation with the other relevant authorities and with the financial conglomerate, as follows:
1° they regularly communicate to the supervisory authority the particularities of their legal structure, corporate organizational structure and management structure encompassing all regulated companies, non-regulated subsidiaries and significant branches;
2° they publish once a year at the level of the financial conglomerate a description of the legal structure, the corporate organizational structure and their management structure for the public and ensure that all regulated companies also publish this information either in full or in return to equivalent information.
Art. 195. The supervisory authority, as coordinator, assesses at least once a year the need for crisis simulations at the financial conglomerate level. To this end, it aligns its assessment of the crisis simulations that are organized for the largest financial sector represented in the financial conglomerate and works with other relevant authorities.
For the application of these crisis simulations, the control authority takes into consideration parameters that take into account the specific risks associated with financial conglomerates.
The control authority communicates the results of crisis simulations to the joint committee.
Sub-section II. - Measures to facilitate
complementary monitoring of the conglomerate
Art. 196. § 1er. In order to ensure appropriate complementary monitoring of the conglomerate, the designation of a single coordinator among the competent authorities of the Member States concerned, including those of the Member State in which the mixed financial company has its headquarters, is responsible for the coordination and exercise of the complementary monitoring of the conglomerate.
§ 2. Complementary monitoring of the conglomerate on the credit institutions referred to in Article 185, paragraph 1er, is exercised as follows:
1° by the supervisory authority in the case referred to in section 185, paragraph 1er, 1° ;
2° if the financial conglomerate is headed by a Belgian mixed financial company, by the supervisory authority, without prejudice to points 3° to 7°;
3° if, in addition to a Belgian credit institution, at least another Belgian regulated company has the same Belgian mixed financial company at the head of the financial conglomerate, by the Belgian competent authority responsible for the prudential control of the Belgian regulated company whose balance sheet is the highest;
4° if the mixed financial company at the head of the financial conglomerate has its head office in another Member State than Belgium and has in that Member State a subsidiary which is a regulated company, by the competent authority of that country;
5° if the joint financial company at the head of the financial conglomerate has its head office in another Member State than Belgium and that this Member State has at least two subsidiaries which are regulated enterprises, with each other a competent authority different, by the competent authority of the regulated company of the most important financial sector;
6° if several mixed financial companies having their headquarters in different Member States are at the head of the financial conglomerate, and there is a regulated company in each of these Member States, by the competent authority of the regulated company having the highest balance sheet if the activities of these enterprises are in the same financial sector, or by the competent authority of the regulated company of the largest financial sector;
7° if at least two regulated companies having their head office in a Member State have the same mixed financial company as their parent company and none of these companies has an approval in the State where the mixed financial company has its head office, by the competent authority of the regulated company whose total balance sheet is the highest in the largest financial sector;
§ 3. The supervisory authority and other relevant authorities may, in special cases, agree to derogate from the rules of jurisdiction defined in paragraph 1er, if their application, taking into account the structure of the financial conglomerate and the relative importance of the activity of the group in the different Member States, is not adequate, and load another competent authority of the complementary monitoring of the conglomerate. They consult the financial conglomerate before making a decision on this matter.
Art. 197. § 1er. The tasks of the control authority as coordinator include:
1° coordination of the collection and dissemination of relevant and essential information, both in business continuity and in emergency situations, including the dissemination of important information for monitoring by a competent authority under sectoral regulations;
2° the control, including the assessment, of the financial situation of the financial conglomerate;
3° the monitoring of compliance with the provisions of sections 190 to 192 with respect to solvency, concentration of risks and intragroup operations, and compliance with the reporting obligations referred to in section 193;
4° the control, including the assessment, of the structure, organization and internal controls of the financial conglomerate, as referred to in section 194;
5° the planning and coordination of monitoring activities, both in business continuity and in emergency situations, in cooperation with other relevant authorities;
6° taking measures and penalties for the mixed financial company;
7° other tasks, measures and decisions that are assigned to it by or under the provisions of this Section and Section IV of this Chapter, provided that, with respect to Section IV, these provisions relate to the complementary monitoring of the conglomerate and to Directive 2002/87/EC.
§ 2. Competent authorities may, where appropriate in consultation with other competent authorities, agree to entrust to the supervisory authority, in its capacity as coordinator, other monitoring tasks than those provided for in paragraph 1er.
§ 3. When the supervisory authority acts as a competent authority, without being a coordinator, it shall cooperate, without prejudice to the provisions of Section IV of this Chapter as long as these provisions relate to the complementary monitoring of the conglomerate, with the other competent authorities and with the coordinator, for the execution of the tasks referred to in Article 11 of Directive 2002/87/EC.
Art. 198. § 1er. Without prejudice to the cooperation and coordination agreements referred to in the other provisions of this Section, the supervisory authority, in its capacity as coordinator, concludes with other competent authorities the agreements that are necessary for the further monitoring of the conglomerate as defined in this Section and in Section IV of this Chapter. These agreements shall, as appropriate, regulate the terms and conditions for the exercise of this control, including the modalities for cooperation and exchange of information between the competent authorities. They may, in particular, settle decision-making procedures between relevant authorities.
§ 2. Without prejudice to the delegation of specific supervisory competencies and responsibilities in accordance with sectoral regulations, the designation of the supervisory authority as coordinator does not prejudice the tasks and responsibilities of the relevant authorities as defined by the sectoral regulations.
Art. 199. § 1er. The supervisory authority, in its capacity as coordinator, shall establish a College for Complementary Monitoring of a Conglomerate to carry out the cooperation provided for in this Section and Section IV of this Chapter and the fulfilment of the coordinating missions and, where appropriate, the appropriate coordination and cooperation with the relevant supervisory authorities of third countries, in accordance with the confidentiality and law requirements of the Union.
§ 2. When relevant authorities are already participating in a college established under Article 116 of Directive 2013/36/EU or Article 248, paragraph 2, of Directive 2009/138/EC, the college will operate at the financial conglomerate level in the college established for the largest financial sector. The banking sector and the investment services sector are aggregated to this end.
The modalities of coordination referred to in paragraph 1er are established separately in written coordination agreements established for the sectoral college. The supervisory authority, in its capacity as coordinator, decides, as president of this sectoral college, which other competent authorities participate in a meeting or any activity of that college.
Art. 200. § 1er. The supervisory authority and other competent authorities cooperate closely with each other.
They exchange confidential information relevant to the exercise of monitoring under sectoral regulations and the complementary monitoring of the conglomerate.
§ 2. Without prejudice to their responsibilities as defined by sectoral regulations, the authorities referred to in paragraph 1erParagraph 1er, whether or not they are established in the same Member State, shall exchange any essential or relevant information for the performance of their prudential missions under sectoral regulations and Directive 2002/87/EC. To this end, they shall, upon request, communicate any relevant information and, on their own initiative, any essential information.
This cooperation covers at least the collection and exchange of information on:
1° the legal structure of the group, its organizational structure and its management structure encompassing all regulated companies, non-regulated subsidiaries and branches of significant importance within the meaning of Article 51 of Directive 2013/36/EU in the financial conglomerate, holders of qualified participations at the level of the parent company, as well as the competent authorities for the regulated companies of that group;
2° the strategies of the financial conglomerate;
3° the financial situation of the financial conglomerate, particularly with regard to the adequacy of equity, intragroup transactions, concentration of risks and profitability;
4° the main shareholders and the management of the financial conglomerate;
5° organization, risk management and internal control systems at the financial conglomerate level;
6° the procedures for collecting information from companies of the financial conglomerate and verifying such information;
7° the negative developments experienced by regulated companies or other financial conglomerate companies, which are likely to seriously affect the said regulated companies;
8° the significant sanctions and exceptional measures decided by the competent authorities in accordance with the sectoral regulations or Directive 2002/87/EC.
The control authority may also exchange information with the CERS regarding the exercise of control of credit institutions that are part of a financial conglomerate.
§ 3. Without prejudice to its responsibilities as defined by the sectoral regulations, the supervisory authority shall conduct a consultation on the following points, before making a decision relevant to the monitoring missions carried out by other competent authorities:
1° a structural change in the ownership, organization or management of regulated companies that are part of a financial conglomerate requiring the approval or authorization of the competent authorities;
2° the significant penalties and exceptional measures envisaged.
The supervisory authority may decide not to consult with its counterparts in the event of an emergency or where such consultation may compromise the effectiveness of decisions. In such cases, the supervisory authority shall promptly inform the other competent authorities.
Art. 201. Where, for the purposes of Article 213 with respect to the complementary monitoring of conglomerates, the information requested in accordance with the sectoral regulations has already been communicated to another competent authority, the supervisory authority, in its capacity as coordinator, will address to the extent possible to that authority to obtain such information.
Sub-section III. - Other cases of application
Art. 202. If, in cases other than those referred to in Article 185, a company has a participation in, or another bond in capital with, one or more other enterprises, or, apart from any participation or other bond in capital, has a significant influence on such enterprises, and that one of the above-mentioned companies is a credit institution of Belgian law, the supervisory authority may, in its capacity as the relevant authorities, decide in consultation with other regulated companies The relevant authorities shall jointly define the modalities for this complementary monitoring of the conglomerate, and in particular determine the articles of this Section and Section IV of this Chapter concerning the supplementary monitoring of the conglomerates that are applicable. They shall take their decision in accordance with the objectives of the complementary monitoring of conglomerates as defined in this Section, and shall take into account in this context the international principles of complementary monitoring of conglomerates.
The Competent Authority for Complementary Monitoring of the Conglomerate shall be designated by analogous application of the provisions of Article 196. If the financial conglomerate is a group without a parent company at the head of the group, as well as in cases other than the above-mentioned cases, the complementary monitoring of the conglomerate is carried out by the competent authority responsible for the control of the regulated company whose total balance is the highest in the largest financial sector.
For the purposes of paragraph 1er, it must be satisfied with the conditions of Article 164, § 1er, 2°, (a), (ii) and (iii) or (b), (ii) and (iii).
If, by application of paragraph 1er, it is decided to carry out additional monitoring of the conglomerate, the provisions of Article 187, § 2 are applicable by analogy.
Section IV. - Common provisions
Sub-section Ire. - Principles
Art. 203. § 1er. The supervisory authority may, if applicable by regulation made under section 12bis, § 2, of the Act of 22 February 1998, specify the practical terms and conditions of the consolidated base control as set out in Section II of this Chapter and in this Section or the supplementary monitoring of the conglomerates as set out in Section III of this Chapter and in this Section.
§ 2. With a view to consolidated control and complementary monitoring of conglomerates as effective as possible, the supervisory authority may authorize individual exemptions to the provisions, as the case may be, of Sections II and III of this Chapter and this Section, as well as, where applicable, to the regulations made under Article 12bis, § 2 of the Act of 22 February 1998, provided that they remain in compliance with the relevant provisions in 2013/3 In this case, it informs the European Commission and, with regard to consolidated control, also the EBA.
Art. 204. Conglomerate control and complementary monitoring do not result in the exercise of individual control over a financial company or joint financial company, or any other enterprise that is taken over in the scope of these controls.
Conglomerate monitoring and complementary monitoring do not further prejudice the individual control of any regulated company that falls within the scope of consolidated banking control or the complementary monitoring of conglomerate. However, consideration may be given to the implications of consolidated control or the complementary monitoring of conglomerates in determining the content and modalities of the individual control of credit institutions.
Sub-section II. - Mother enterprises, in particular
financial companies and mixed financial companies
Art. 205. § 1er. Where the supervisory authority exercises, under section 171 or section 196, respectively, the consolidated control or the supplementary supervision of the conglomerates on a credit institution referred to in section 165 and section 185, the Belgian parent companies referred to in the above-mentioned articles are responsible for the compliance of the obligations relating, the consolidated control of the conglomerate, or the supplementary supervision of the conglomerate.
In the exercise of the coordination and control that they are responsible for as common enterprises of the consolidated or financial conglomerate, the parent companies referred to in paragraph 1er provide guidance for companies that are part of the consolidated package or financial conglomerate for compliance with the obligations arising from the consolidated control or complementary monitoring of conglomerates and the obligation to ensure the stability of the consolidated or financial conglomerate. These directives may not be contrary to the Corporate Code and its enforcement orders and may not prejudice the individual control over credit institutions that are part of the consolidated or financial conglomerate.
§ 2. When the supervisory authority exercises, under section 171 or section 196, respectively, the consolidated control or the supplementary supervision of the conglomerates, on a Belgian credit institution whose parent company is a financial company or a mixed financial company whose seat is established outside Belgium, that credit institution and its parent company are responsible for the compliance of the obligations relating, respectively to the consolidated control or to the control of the bonds on a consolidated basis or
The credit institution must obtain the cooperation of the target parent company in order to establish an adequate management structure that helps to ensure that the consolidated control or the complementary monitoring of the conglomerates can be exercised in the most effective way possible, and ensures that the influence of the parent company is not contrary to the Code of Companies and its enforcement orders and does not prejudice the control on the individual basis applicable to the establishment
§ 3. In the internal governance memorandum required under section 21, it is appropriate to establish, with respect to the consolidated level or level of the financial conglomerate, how it is satisfied with the principles set out in paragraphs 1er and 2.
§ 4. In the cases referred to in paragraph 1er, the responsible parent enterprises shall provide, in accordance with Article 106, § 1erand § 2, paragraph 1er and section 193 of this Act, the required reporting, as well as, at the request of the supervisory authority, all additional information that is useful for the exercise of the consolidated control or the complementary monitoring of the conglomerates. Article 106, § 3 is applicable by analogy.
§ 5. Where the supervisory authority exercises, under section 171 or section 196 respectively, the consolidated control or the supplementary monitoring of conglomerates in cases other than those referred to in paragraphs 1er and 2, it may specify on a case-by-case basis how the principles referred to in paragraphs 1er to 4 apply by analogy.
§ 6. For the application of paragraphs 1er, 2 and 5, the supervisory authority consults, where necessary, the other competent authorities.
Art. 206. § 1er. When another competent authority that the supervisory authority exercises the consolidated control or the complementary supervision of conglomerates on a Belgian legal credit institution, it is the duty of the credit institution to verify whether the influence of its parent company is not contrary to the Code of Companies and its enforcement orders and does not prejudice the individual control to which this credit institution is subject.
Art. 207. When a competent authority of another Member State exercises consolidated control or the supplementary supervision of conglomerates on a credit institution that is a subsidiary of a financial company or a mixed financial company of Belgian law, the supervisory authority shall, when so requested by that competent authority, verify how it may lend its cooperation for the application of the measures that would exist in the Member State of the competent financial authority for the inclusion of the financial companies and
Art. 208. § 1er. The steering committee, if any, the effective direction of the parent companies referred to in Article 165 and Article 185 of Belgian law, included in the consolidated control or supplementary monitoring of the conglomerates exercised by the supervisory authority, states that the reporting referred to in Article 205, § 4 is in accordance with accounting and inventories. For this purpose, it is required that the statements be complete, i.e. that they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, i.e. that they correspond exactly with the accounting and with the inventories on which they are established. The management committee, if any effective management, confirms that it has done the necessary to ensure that the above-mentioned statements are prepared in accordance with the applicable instructions, as well as by applying the accounting and evaluation rules for the preparation of the consolidated accounts, or, in respect of statements that do not relate to the end of the accounting year, by applying the accounting and evaluation rules that have presided over the preparation of the last consolidated accounts.
§ 2. Article 59, § 2 shall apply by analogy to the steering committee, if applicable to the effective management, of the parent enterprises referred to in paragraph 1er with regard to the measures contained in:
1° Article 21 with respect to the consolidated package;
2° Article 194 concerning the financial conglomerate.
Art. 209. The provisions of section 225 of this Act respecting the functions of an authorized commissioner of a credit institution shall apply by analogy with respect to the credit institutions referred to in sections 165, 1 or 185, paragraph 1er, 1° for, respectively, the consolidated control and the supplementary monitoring of the conglomerates of which the credit institutions are subject.
Art. 210. § 1er. The duties of Commissioner under the Corporate Code are:
1° in a financial company or a mixed financial company of Belgian law referred to in section 165, 2° and included in the consolidated control exercised by the supervisory authority, entrusted to one or more revisors or to one or more revisors, which, pursuant to section 223 of this Act, are approved by the Bank for the functions of Commissioner with a credit institution. Sections 220, 221, 222, paragraph 3, 223, 224 and 225, paragraphs 2 to 5 of this Act are applicable by analogy.
2° in a mixed financial company of Belgian law referred to in Article 185, paragraph 1er, 2°, and included in the supplementary supervision of the conglomerates exercised by the supervisory authority, entrusted to one or more revisors or to one or more revisors, which are approved by the Bank in accordance with, as the case may be, section 222 of this Act, section 40 of the Act of 9 July 1975 relating to the control of insurance companies, to section 42 of the Act of 16 February 1995. The College of Revisors or revisors, designated with a mixed financial company, must be established in such a way that they are approved, either individually or jointly, in each of the financial sectors in which the financial conglomerate carries on an important activity. The Bank may, by reference to the thresholds referred to in section 186, determine what is to be heard by significant activity. The provisions of the revisoral control sector regulations are applicable by analogy.
§ 2. Commissioners appointed to the financial companies referred to in paragraph 1er lend their cooperation, as the case may be, on a consolidated basis or on the supplementary supervision of the conglomerates, to which the supervisory authority is responsible, under their personal and exclusive responsibility and in accordance with this paragraph, to the rules of the profession and to the instructions of the supervisory authority. To this effect:
1° they assess the adequacy of the internal control measures referred to in articles 21, § 1er, 2° to 9°, 41 and 66 for consolidated control, or procedures for risk management, internal control devices and the administrative and accounting organization referred to in section 194 for further monitoring of conglomerates. They communicate their findings in this matter to the supervisory authority;
2° they report to the control authority on:
(a) the results of the limited examination of the statements transmitted by the financial company or the mixed financial company for its consolidated situation, or of the statements transmitted by the mixed financial company in accordance with section 193 to the supervisory authority at the end of the first semester, confirming that they are not aware of the facts that would appear to have been determined at the end of the semester, have not, in all significant respects, been established in accordance with the instructions in force They further confirm that these statements, which were decided at the end of the semester, are, in all significant respects, compliant with accounting and inventories, in the sense that they are complete, that is, that they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is to say, the accounting with which they agree they also confirm that they are not aware of the facts that would appear to have been found that the periodic reports issued at the end of the semester were not prepared by application of the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year; the control authority may specify which periodic reports are in this case;
(b) the results of the control of the statements transmitted by the financial company or the mixed financial company for its consolidated situation, or of the statements referred to in section 193 transmitted by the mixed financial company to the control authority at the end of the accounting year, confirming that they have, in all significant respects, been established in accordance with the current instructions of the control authority. They further confirm that these records, which are at the end of the accounting year, are, in all significant respects, compliant with accounting and inventories, in the sense that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is to say, the basis with which they are compliant they also confirm that they are not aware of the facts that would appear to have been found that the periodical statements issued at the end of the accounting year were established by application of the accounting and evaluation rules that presided over the preparation of consolidated annual accounts; the control authority may specify the states referred to herein;
3° they make special reports to the supervisory authority at his request on:
(a) with respect to consolidated control: the organization, activities and financial structure of the consolidated set;
(b) with regard to the supplementary monitoring of conglomerates: the aspects referred to in items 1 and 2 of this paragraph and articles 190 to 192.
The costs for the preparation of these reports are borne by the financial company or the mixed financial company, by the Belgian credit institution or by both sets;
4° as part of their mission to the financial company or the mixed financial company, or a revisoral mission to a company related to the financial company or the mixed financial company, they spontaneously report to the supervisory authority as soon as they find:
(a) decisions, facts or developments that significantly influence or influence the aspects referred to in paragraph 3;
(b) decisions or facts that may constitute a violation of the Corporations, Regulations or this Act with respect to the financial company or the mixed financial company;
(c) other decisions or facts that are likely to result in refusal or reservation to certify consolidated annual accounts.
§ 3. When the parent company is a joint financial company or financial company referred to in section 165, 2°, or section 185, paragraph 1er, 2°, whose seat is established in another Member State and included, respectively, in the consolidated control or in the supplementary monitoring of the conglomerate exercised by the supervisory authority, the mission defined in paragraph 2 shall be carried out by analogy by the Commissioner-designate with a comparable task with that financial company. In the absence of such a Commissioner, the mission referred to is carried out by the Commissioner-designate to:
(a) of the Belgian legal credit institution that is a subsidiary of the financial company or of the intended joint financial company, for consolidated control, or
(b) a regulated company under Belgian law that is under the control of the control authority and is a subsidiary of the targeted joint financial company, for the complementary monitoring of conglomerates.
Art. 211. Commissioners appointed to credit institutions, financial companies or joint financial companies of Belgian law in accordance with Articles 209 and 210 shall, for the purpose of carrying out their duties, have access to and may be aware of all documents and documents emanating from the subsidiaries repeated in the consolidated situation or in the financial conglomerate as well as from the companies referred to in Article 213, § 1erParagraph 2.
The provisions of section 35 of the Act of 22 February 1998 apply with respect to the information they have received pursuant to paragraph 1er.
Art. 212. Without prejudice to the principle contained in Article 204, paragraph 1er, and where the consolidated control or the supplementary supervision of the conglomerate is exercised by the supervisory authority, the following articles of this Act shall apply by analogy to the financial company or the mixed financial company of Belgian law: Articles 18, 19, 20, 24 § 1eron the understanding that at least three members of the steering committee are members of the legal body of administration, and §§ 3 and 4, 25 and 26, 46 to 54, 60, 61 and 62, §§ 1er § 5, first sentence, and §§ 6-8, and 71, 234, § 1erand 236, § 1er, 1° to 5°, and, with regard to the consolidated control, also article 168, § 3.
Sub-section III. - Measures
to facilitate the monitoring of the group
Art. 213. § 1er. Without prejudice to the applicable periodic reporting, the supervisory authority must have access, in its direct or indirect contacts with the credit institutions, the financial companies and the mixed financial companies concerned, their subsidiaries and all other companies included in the consolidated or financial conglomerate, to any information useful for the year as the case may be, its consolidated control or its complementary monitoring of the conglomerates.
Subsidiaries that are left out of consolidation in accordance with section 19 of Regulation No. 575/2013 or companies that are not included in the complementary monitoring of the conglomerate in accordance with section 190, § 2, are required to communicate to the supervisory authority, in its capacity as a consolidated monitoring authority or a coordinator, all information and information that it considers necessary for its conglomerate monitoring or its conglomerate monitoring.
Companies that control, exclusively or jointly with others, a Belgian credit institution, as well as the subsidiaries of these companies, are required, if these companies and subsidiaries do not fall within the scope of the consolidated control or the complementary monitoring of the conglomerate, to communicate to the supervisory authority and other competent authorities the information and information relevant to the exercise of control of this credit institution.
§ 2. The control authority may require that the information referred to in paragraph 1er concerning enterprises whose head office is established in a Member State other than Belgium shall be communicated to it by the credit institution, the financial company or the mixed financial company constituted under Belgian law, or that information relating to enterprises whose head office is established in a third country shall be communicated to it by a credit institution, financial company or a mixed financial company having their head office in a Member State.
§ 3. If a Belgian credit institution is left out of the consolidated set or financial conglomerate by another competent authority acting as a consolidated monitoring authority or a coordinator, the supervisory authority may require that the parent company that heads the consolidated set or the financial conglomerate disclose to it the information and information it considers useful for the exercise of its control of that credit institution.
Art. 214. § 1er. The supervisory authority may conduct on-site verification of compliance with the obligations referred to in Sections II and III of this Chapter and this Section, as well as the correct and completeness of the information and information provided, in the undertakings referred to in Article 213, § 1er, and, with respect to consolidated control, also in the undertakings referred to in section 182, in the joint financial company and its subsidiaries and in the undertakings that provide auxiliary services. It may, at the expense of these undertakings, charge foreign commissioners or experts authorized by it to do so to conduct such audits.
§ 2. Where enterprises referred to in paragraph 1er have their headquarters in another Member State, the supervisory authority shall request the competent authority of that Member State to carry out such control. The supervisory authority itself shall exercise such control if it has been authorized by the competent authority of that Member State. Where the latter wishes to carry out this control itself, or designates an approved reviser or an expert to that effect, the control authority may, if it wishes, be associated with it.
§ 3. Where enterprises referred to in paragraph 1er have their headquarters in a third country, the modalities of the on-site verification are regulated in cooperation agreements that the supervisory authority has concluded with the foreign authorities concerned or that the European Commission has concluded with the foreign authorities concerned, in accordance with the provisions of Article 48 of Directive 2013/36/EU.
Art. 215. Without objections from private law, including confidentiality commitments or the nature of their ties, the following companies communicate each other the relevant information and information:
1° for Consolidated On-Base Control: Companies included in Consolidated On-Base Control, as well as subsidiaries of credit institutions, financial companies or mixed financial companies excluded from consolidation pursuant to Regulation No. 575/2013, and the mixed financial companies and their subsidiaries;
2° for the complementary monitoring of the conglomerate: the companies included in the complementary monitoring of the conglomerate, as well as the enterprises belonging to a financial conglomerate excluded from the complementary monitoring of the conglomerate in accordance with Article 190 § 2, paragraph 2.
Art. 216. § 1er. When a parent company and one or more of its subsidiaries that are credit institutions are located in different Member States, the supervisory authority and other competent authorities shall exchange all relevant information such as to enable or facilitate the exercise of consolidated control or the complementary monitoring of the conglomerate.
The collection, exchange or detention of information by the supervisory authority and the competent authorities with a view to facilitating the consolidated control or the complementary monitoring of the conglomerate with respect to the undertakings referred to in Article 214, do not mean that the supervisory authority exercises control over those undertakings taken individually.
§ 2. Where the supervisory authority, in the case of a parent company of Belgian law, does not exercise its own control on a consolidated basis or the supplementary monitoring of the conglomerates under Article 171 or Article 196, it may be invited, by the competent authorities responsible for exercising this control, to request the parent company any relevant information for the exercise of that control, and to transmit it to them.
§ 3. Where, pursuant to Article 171 or Article 196, the supervisory authority shall exercise, respectively, the consolidated control or the supplementary supervision of the conglomerate and the parent company shall have its head office in a Member State other than Belgium, the supervisory authority may invite the competent authority of that Member State to request that parent company any relevant information for the exercise of that control, and to transmit it to it.
§ 4. When the individual control authority of a credit institution wishes to obtain information that has already been communicated to another competent authority that acts as a consolidated control authority or coordinator, it shall, to the extent possible, address the authority in question to obtain such information.
§ 5. When the supervisory authority, in its capacity as a consolidated control authority or coordinator, requires information that has already been communicated to another competent authority, it shall, if possible, address that authority with a view to avoiding the duplication of communications to other authorities associated with the control.
Art. 217. § 1er. Credit institutions, financial companies and mixed financial companies and their subsidiaries, as well as the mixed financial companies and their Belgian affiliates, shall communicate to another supervisory authority the information and information it considers useful for the exercise of the consolidated control or the complementary monitoring of the conglomerates it is responsible, either directly or indirectly:
In the case of a competent authority, paragraph 1er is applicable within the framework of its control as defined in European legislation.
Where this authority falls under the right of a third country and the obligation of information arises from cooperation agreements concluded by the supervisory authority with the foreign authority concerned, paragraph 1er is applicable by analogy.
§ 2. Within the framework of their consolidated control or their complementary monitoring of the conglomerates, the supervisory authorities are empowered to conduct on-site in the enterprises referred to in Article 213 § 1er having their head office in Belgium, the verification of the information and information they have received, or may charge certified commissioners or experts authorized by them to do so, subject to the following conditions:
1° where a competent authority is concerned, the provisions of Article 214, § 2 shall apply by analogy;
2° where this authority falls under the law of a third country, the provisions of Article 214, § 3 shall apply by analogy.
Art. 218. The supervisory authority, in its capacity as a consolidated control authority or coordinator, establishes lists of the financial companies and mixed financial companies included in the consolidated control carried out by it, and of the mixed financial companies concerned by the complementary monitoring of the conglomerate exercised by it.
It communicates these lists to the competent authorities of the other Member States, to the EBA for consolidated monitoring or to the EBA and to the European Insurance and Vocational Authority for the further monitoring of the conglomerate, and to the European Commission.
Sub-section IV. - Mother enterprises established in a third country
Art. 219. § 1er. Belgian credit institutions whose parent company is
- a parent credit institution, a financial company or a mixed financial company, or
- a regulated company headed by a financial conglomerate or a mixed financial company,
having its headquarters in a third country, and which are not already the subject matter or are not yet within the scope of the consolidated control in accordance with Section II of this Chapter and this Section or the supplementary monitoring of the conglomerates in accordance with Section III of this Chapter and this Section, exercised by the supervisory authority or another competent authority, shall, as the case may be, be subject to a consolidated monitoring of the provisions
§ 2. The control authority shall verify whether the credit institutions referred to in paragraph 1er are subject to control exercised by a third country authority, equivalent:
1° to consolidated base control in accordance with the provisions of Section II of this Chapter and this Section, or
2° to the supplementary monitoring of conglomerates in accordance with the provisions of Section III of this Chapter and this Section.
It does so on its own initiative or at the request of parent companies referred to in paragraph 1er or the Belgian legal credit facility.
Before making its decision, the supervisory authority shall consult with other relevant authorities on the equivalence or non-equivalence of the intended control and, with respect to the consolidated control, also the EBA.
With respect to this equivalence, the control authority shall take into account:
1° of the directives issued by the European Banking Committee concerning consolidated control in accordance with Directive 2013/36/EU and Regulation No. 575/2013;
2° of the guidelines established by the joint committee in accordance with rules 16 and 56 of Regulation 1093/2010, Regulation 1094/2010 or Regulation 1095/2010 on the supplementary monitoring of conglomerates in accordance with Directive 2002/87/EC.
§ 3. If, by analogous application of the provisions of Article 111 of Directive 2013/36/EU or Article 11 of Directive 2002/87/EC, another competent authority that the supervisory authority is the consolidated monitoring authority or the coordinator, the verification and consultation shall be carried out by that other competent authority, the supervisory authority which may communicate its findings and its views on the equivalence referred to in paragraph 1er.
Where, with respect to the supplementary monitoring of the conglomerate, the control authority has a different opinion as to a decision taken by another competent authority in accordance with paragraph 1erSection 19, as the case may be, of Regulation No. 1093/2010, Regulation No. 1094/2010 or Regulation No. 1095/2010 applies.
§ 4. If the procedure provided for in paragraphs 2 and 3 makes it possible to conclude that there is no equivalency, the Belgian credit institutions concerned are subject to consolidated monitoring or complementary monitoring of conglomerates by similar application of the provisions of paragraph 2, paragraph 1er, performed by the supervisory authority if it is the competent authority which would be responsible for the consolidated control or the complementary monitoring of the conglomerate by analogous application of the provisions respectively, section 171 or section 196.
Derogation from paragraph 1er, the supervisory authority may, after consultation with the other competent authorities concerned, also decide to apply another adequate control method, which must meet the objectives of the provisions referred to in paragraph 2, paragraph 1er.
In particular, the supervisory authority may require that Belgian credit institutions and any other regulated companies incorporated under the law of a Member State be included in a group headed by a financial company or a mixed financial company constituted under the law of a Member State and apply:
1° the provisions of Section II of this Chapter and this Section on the basis of the consolidated situation of that financial company or joint financial company, or
2° the provisions of Section III of this Chapter and this Section at the level of the financial conglomerate headed by this mixed financial company.
In this case, the supervisory authority shall notify the other competent authorities concerned, the European Commission and, with regard to the consolidated control, also the EBA, of any decision taken pursuant to paragraphs 2 and 3.
For the application of paragraphs 1er to 4, the supervisory authority concludes the necessary agreements with the relevant authorities.
CHAPTER V
Art. 220. The functions of commissioner under the Code of Societies may only be entrusted to one or more revisers or to one or more revisers accredited by the Bank in accordance with section 222.
In credit institutions that are not required to have a Commissioner under the said Code, the General Assembly of Partners shall appoint one or more rebroadcasters or one or more registered rebroadcasters as provided for in paragraph 1er. They serve as Commissioner. The provisions of the Corporations Code for Commissioners of Anonymous Corporations are applicable to the designation and functions of Commissioners in these institutions. For the purposes of the Code of Companies in respect of the above, the General Meeting of Partners replaces the General Meeting of Shareholders in companies where the law does not organize it.
Credit institutions may designate alternate commissioners who perform the duties of Commissioner in the event of their licensee's lasting incapacity. The provisions of this Article and Article 221 shall apply to such substitutes.
The auditors designated under this section shall certify the consolidated annual accounts of the credit institution.
Art. 221. Authorized revisers perform the duties of Commissioner under section 220 through an approved reviser appointed by them and in accordance with section 6 of the Act of July 22, 1953 creating an Institute of Business Reviewers and organizing public supervision of the business reviewer profession. The provisions of this Act and the decrees made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners and to sanctions, other than criminal, that are applicable to them, are applicable simultaneously to the publishers and approved revisers representing them.
A registered reviser corporation may designate an alternate representative from among its eligible members to be designated.
Art. 222. The Bank shall, by way of regulation made under Article 12bis, § 2 of the Act of 22 February 1998, determine the regulation of the approval of revisers and revisers.
Accreditation regulations are made after consultation with approved revisers represented by their professional organization.
The Institute of Directors of Business shall inform the Bank of the commencement of any disciplinary proceedings against an approved reviser or a registered reviser company for failure to perform its duties with a credit institution and any disciplinary action taken against an approved reviser or an approved reviser company and its reasons.
Art. 223. The designation of authorized commissioners and alternate approved commissioners to credit institutions is subject to the prior agreement of the supervisory authority. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of an approved reviser company, the agreement shall jointly deal with the company and its representative.
The same agreement is required for the renewal of the mandate.
When, under the Act, the appointment of the Commissioner is made by the President of the Trade Court or the Court of Appeal, the Commissioner shall make their choice on a list of approved revisers on which the supervisory authority has given its agreement.
Art. 224. The supervisory authority may, at any time, revoke, by a decision based on reasons for their status or the performance of their duties as a registered reviser or a registered reviser corporation, as provided for by or under this Act, the agreement given, in accordance with section 223, to an approved Commissioner, an alternate Approved Commissioner, an approved reviser corporation or a representative or alternate representative of such a corporation. This revocation puts an end to the duties of Commissioner.
In the event of a resignment of an authorized commissioner, the supervisory authority and the establishment of credit are previously informed, as well as the reasons for the resignation.
Accreditation rules, for the surplus, the procedure.
In the absence of an alternate registered commissioner or an alternate representative of a registered corporation, the credit institution or the approved reviser corporation shall, in accordance with section 223, be replaced within two months.
The proposal to revoke the terms of reference of a registered commissioner in credit institutions, as set out in sections 135 and 136 of the Corporate Code, is subject to the opinion of the supervisory authority. This notice is communicated to the General Assembly.
Art. 225. Authorized commissioners cooperate with the control authority, under their personal and exclusive responsibility and in accordance with this section, the rules of the profession and the instructions of the supervisory authority. To this end:
1° they assess the internal control measures adopted by credit institutions in accordance with Article 21, § 1er, 2°, and by application of articles 21, § 1er, 9°, 42 and 66, and communicate their findings in this matter to the supervisory authority;
2° they report to the control authority on:
(a) the results of the limited review of the periodical statements transmitted by credit institutions to the supervisory authority at the end of the first social semester, confirming that they are not aware of any facts that would appear to be that these periodic reports have not, in all significant respects, been prepared in accordance with the current instructions of the supervisory authority. They further confirm that the periodic reports issued at the end of the semester are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is, they agree with the basis of which they are prepared, they also confirm that they are not aware of any facts that would appear to be that the periodical statements issued at the end of the semester were not prepared by application of the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year; the control authority may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by credit institutions to the supervisory authority at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the current instructions of the supervisory authority. They further confirm that the periodic reports issued at the end of the fiscal year are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is, they agree with the exact basis of which they are prepared. they also confirm that the periodic reports issued at the end of the fiscal year have been established by application of the accounting and evaluation rules for the preparation of annual accounts; the control authority may specify which periodic reports are in this case;
3° they shall make special reports to the supervisory authority, upon request, on the organization, activities and financial structure of the credit institution, reports whose settlement fees are borne by the institution in question;
4° as part of their mission to the credit institution or a revisoral mission to a credit establishment business, they shall report to the supervisory authority as soon as they find:
(a) decisions, facts or developments that have a significant impact on or may have a significant impact on the financial position of the credit institution or on the basis of its administrative and accounting organization or internal control;
(b) decisions or facts that may constitute violations of the Corporations Code, the statutes, this Act and the orders and regulations made for its execution;
(c) other decisions or facts that are likely to result in refusal or reservation to certify accounts;
5° they report at least every year to the supervisory authority on the adequacy of the arrangements made by the credit institutions to preserve the assets of the customers under sections 77bis and 77ter of the Act of 6 April 1995 and the enforcement measures taken by the King under the said provisions.
In accordance with the terms set out in Article 138, the Bank shall make available to the MSDS the information referred to in paragraph 5 (1)er so as to enable it to exercise the powers referred to in Article 45, § 1er, 3°, and § 2, of the law of 2 August 2002.
No civil, criminal or disciplinary action may be instituted or any professional sanction imposed against registered commissioners who have proceeded in good faith to information referred to in paragraph 4 of paragraph 1er.
Authorized commissioners shall communicate to the credit establishment officers their reports to the supervisory authority pursuant to paragraph 1erThree. These communications fall under organized secrecy, if any, by section 35 of the Act of 22 February 1998. They shall transmit to the supervisory authority copies of the communications they address to these leaders and which relate to matters of interest to the control exercised by them.
Authorized auditors and certified auditors may perform audits and expertise related to their duties at the foreign branches of the establishment they control.
They may be charged by the supervisory authority, if any at the request of the European Central Bank as a monetary authority, to confirm that the information that credit institutions are required to communicate to these authorities is complete, correct and established according to the rules applicable therein.
PART IV. - Resolution plans
CHAPTER Ier. - Establishment of resolution plans
Art. 226. § 1er. The resolution authority, after consultation with the control authority, establishes a resolution plan for each credit institution.
The resolution plan covers the credit establishment and its Belgian and foreign affiliates.
§ 2. The resolution authority may require the credit establishment to be provided to it in the development and updating of the resolution plan and to provide it with all the information necessary to that effect.
§ 3. The resolution authority shall transmit to the credit institution a summary of the key elements of the resolution plan.
Art. 227. § 1er. The resolution plan defines measures that may be taken by the resolution authority in respect of a credit institution where the conditions provided for in Article 244, § 1er, are performed in the head of this institution, in particular to ensure the continuity of its critical functions, to avoid harming the stability of Belgian and international financial systems and to protect insured deposits.
The resolution plan envisages different scenarios, including a failure to establish individual and circumscribed credit or in a context of general financial instability or systemic event.
The resolution plan does not envisage any exceptional financial support from the public authorities, or any exceptional support for the liquidity of the central banks or other liquidity facilities of the central banks under special conditions in respect of security rights, duration or interest. The plan, however, includes an analysis of how and when the credit institution could use the facilities of central banks and lists assets that could be eligible for security.
§ 2. By order deliberately in the Council of Ministers, taken on the advice of the resolution authority, the King may specify:
1° the minimum contents of the resolution plan; and
2° the information to be transmitted by credit institutions to the resolution authority and the frequency to which it is transmitted.
Art. 228. The resolution authority shall update the resolution plan at least once a year and in any event after any modification of the legal or organizational structure of the credit institution, its activities or its financial situation that may have a significant impact on the plan or that requires to amend it.
Art. 229. § 1er. By decree deliberated in the Council of Ministers, taken on the advice of the resolution authority, the King:
1° may, under the conditions defined by it, exclude the following credit institutions from the scope of this Chapter:
(a) credit institutions that are a subsidiary included in the consolidated monitoring of another credit institution, financial company or joint financial company under the law of a Member State for which a resolution plan has been prepared by the competent resolution authority;
(b) the credit institutions referred to in Article 239, § 1er;
2° defines, in accordance with the principle of proportionality, the conditions under which the resolution authority may in accordance with paragraph 2 derogate from the provisions of this Chapter and from the decrees taken for its execution.
§ 2. The resolution authority may, within and under the conditions defined in accordance with paragraph 1er, 2°, derogate from the provisions of this Chapter and from the decrees taken for its execution in respect of the content of the resolution plan, the frequency of updating the plan or information to be provided by the credit institution, to the extent that such an exemption is justified in relation to the impact that the failure and liquidation of the credit establishment may have on the financial markets, on other credit institutions, on conditions and To this end, the resolution authority takes into account, among other things, the nature of the activities of the credit institution, the structure of its shareholders, its legal form, its risk profile, its size, its interdependence with other credit institutions or the entire financial system, the scope and complexity of its activities and its potential exercise of services or investment activities.
CHAPTER II. - Evaluation of the draft resolutions
Section Ire. -Assessment of credit facility solvency
Art. 230. When the resolution plan is established and updated, the resolution authority, after consultation with the control authority, assesses the solvency of the credit facility.
The resolution of the default of a credit institution is deemed possible if the resolution authority can, in a credible manner, either terminate it or resolve the default of that credit institution by applying one or more resolution instruments and resolution powers, avoiding, to the extent possible, significant adverse effects on Belgian financial systems or other instruments Member States, including in cases of general financial instability or systemic event, and with the objective of ensuring continuity of critical functions of the credit institution.
By order deliberately in the Council of Ministers, taken on the advice of the resolution authority, the King may specify the elements that the resolution authority must examine in order to assess the solvency of a credit facility in accordance with this Article.
In this assessment, the resolution authority excludes the hypothesis of exceptional financial support from the public authorities as well as exceptional support for the liquidity of central banks or the use of other liquidity facilities of central banks under special conditions in respect of security, duration or interest.
Section II. - Reduction or suppression
obstacles to the solvency of credit institutions
Art. 231. If, following an assessment of the solvency of a credit institution carried out in accordance with section 230, the resolution authority considers, after consultation with the supervisory authority, that there are significant obstacles to the resolvability of the credit facility, it shall notify the credit institution concerned and the supervisory authority in writing, describing the obstacles identified.
Within four months of the date of receipt of the notification referred to in paragraph 1er, the credit institution proposes to the resolution authority measures to reduce or remove the obstacles identified.
Art. 232. If the resolution authority considers, after consultation with the supervisory authority, that the measures proposed by the credit institution in accordance with section 231, paragraph 2, do not allow for the removal or reduction of the obstacles to the resolvability of the credit facility, it requires that the credit institution take other measures.
The resolution authority may, in particular, require the credit institution that it:
1° adapts intra-group financial support agreements, assesses the absence of such agreements, or concludes service contracts, within the group or with third parties, to ensure the exercise or supply of one or more critical functions;
2° limits the maximum individual and aggregated amount of exposure to risk;
3° occasionally or regularly communicates relevant additional information for the purposes of the resolution;
4° yields certain assets;
5° limit, suspends or ceases certain ongoing or project activities;
6° reduces or ends the development of certain activities or the sale of certain products;
7° amends its legal or operational structures or those of one or more entities under its direct or indirect control in order to reduce its complexity and to ensure that critical functions can be legally and operationally separated from other functions by the application of resolution instruments;
8° ensures the establishment of a financial company that takes control of the credit institution concerned or, if it is a subsidiary of a joint financial company, ensures that the company creates a separate financial company to control it if it is necessary to facilitate its resolution and to prevent the application of the resolution instruments and the exercise of the resolution powers from having negative effects on the non-financial part of the group;
9° renegotiates the conditions of the additional Category 1 or Category 2 equity instruments that it issued to ensure that any decision of the resolution authority to depreciate or convert these instruments may be implemented in accordance with the applicable law governing these instruments;
10° issues eligible debts within the meaning of Article 242, 10°, taking into account, if any, the minimum level established under Article 255, § 2, paragraph 2.
The resolution authority's decision is notified in writing to the credit institution. The latter submits in the month a plan for the implementation of this decision.
TITRE V. - De la radiation de l'accréditation
Art. 233. The supervisory authority shall revoke by decision notified by registered letter to the position or with acknowledgement of receipt, the approval of credit institutions that have not commenced their activities within twelve months of the approval, which expressly waive the approval, which have been declared bankrupt or have ceased to operate for more than 6 months.
The delisting decision and its reasons are notified by the supervisory authority to the European Banking Authority.
PART VI. - Recovery measures
CHAPTER Ier. - Binding measures
Art. 234. § 1er. Where the supervisory authority finds that a credit institution does not operate in accordance with the provisions of this Act, the orders and regulations made for its execution or Regulation No. 575/2013, or that it has elements indicating that the establishment may no longer operate in accordance with these provisions in the next 12 months, the supervisory authority shall determine the time limit within which it is to be remedied.
§ 2. As long as the credit facility has not been remedied to the situation referred to in paragraph 1er, the control authority may, at any time:
1° impose stricter requirements of equity than, or additional to, those prescribed by or under section 92 of Regulation No. 575/2013 or regulations made under section 98;
2° imposing the application of specific rules for valuation or value adjustment for the purposes of the requirements of equity provided for by or under section 92, Regulation No. 575/2013 or the regulations made under section 98;
3° imposing total or partial reserve of distribuable profits;
4° limit or prohibit any distribution of dividends or any payment, including interest, to shareholders or holders of additional equity instruments of category 1, provided that the suspension of the resulting payments does not result in the opening conditions of a liquidation procedure under the provisions of the Bankruptcy Act of 8 August 1997;
5° to limit variable remuneration to a percentage of profit;
6° impose specific liquidity standards more restrictive than those defined by or under Regulation No. 575/2013 or regulations made under section 98, including limitations on maturity asymmetries between assets and liabilities of the establishment;
7° to require that the establishment reduce the risk of certain activities or products or its organization, if any, by imposing the assignment of all or part of its activities or network;
8° impose standards for concentration of risks or limitations of exposures more restrictive than those defined by or under Regulation No. 575/2013 or regulations made under section 98;
9° impose an additional obligation of information (reporting) or impose a higher frequency of information (reporting) than that provided for by or under section 106, particularly in respect of risks, equity or liquidity positions;
10° impose the publication of more complete and more frequent information than those provided by or under section 75 or Regulation No. 575/2013.
§ 3. Where the supervisory authority considers that the measures taken by the establishment within the time limit set out in paragraph 1er to remedy the situation found satisfactory, it shall, in the manner it determines, lift all or part of the measures decided under paragraph 2.
§ 4. The supervisory authority shall inform the European Banking Authority of the method used to justify the finding that an establishment may, in the next 12 months, no longer operate in accordance with the provisions referred to in paragraph 1er.
CHAPTER II. - Implementation of the recovery plan
Art. 235. As long as the institution has not been remedied to the situation referred to in Article 234, § 1erand without prejudice to the measures referred to in paragraph 2 of this section, the supervisory authority may at any time, and in accordance with the terms and conditions it determines, require that the establishment implement all or part of the recovery plan referred to in section 108.
CHAPTER III. - Exceptional relief measures
Art. 236. § 1er. Without prejudice to the other provisions of this Act, where the supervisory authority finds that a credit institution does not comply or cease to comply with the measures adopted pursuant to Article 234, § 2, or that at the end of the period established under Article 234, § 1er, it has not been remedied to the situation, the control authority may:
1st appoint a special commissioner.
In this case, the written, general or special authorization of the institution is required for all acts and decisions of all organs of the institution, including the General Assembly, and for those of persons responsible for the management; the control authority may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all organs of the institution, including the General Assembly, any proposal that he considers appropriate.
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 damage to the institution or third parties.
If the supervisory authority 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 the General Assembly made without obtaining the required authorization of the Special Commissioner is null unless the Special Commissioner ratifies it.
The remuneration of the Special Commissioner is fixed by the supervisory authority and supported by the institution.
The supervisory authority may designate an alternate commissioner;
2° enjoin the replacement of all or part of the members of the legal organ of administration of the establishment within a time limit that it determines and, in the absence of such replacement within that time limit, substitute to all the administrative and management bodies of the establishment one or more provisional directors or managers who have, alone or collegially as the case may be, the powers of the replaced persons. The supervisory authority publishes its decision to the Belgian Monitor.
By permitting the supervisory authority, the director(s) or provisional manager may convene a general meeting and establish its agenda.
The supervisory authority may require, in accordance with the terms and conditions it determines, that the director(s) or provisional manager report to it on the financial situation of the establishment and on the measures taken in the course of their mission, as well as on the financial situation at the beginning and end of the mission.
The remuneration of the director(s) or provisional manager(s) is fixed by the supervisory authority and supported by the establishment.
The supervisory authority may, at any time, replace the director(s) or provisional manager(s), either on its own motion or at the request of a majority of the shareholders or associates where the shareholders justify that the management of the persons concerned no longer has the necessary guarantees;
3° enjoin the establishment to convene, within the time it sets, a general meeting of shareholders, of which it establishes the agenda;
4° suspend for the duration that it determines the direct or indirect exercise of any or part of the activity of the establishment or prohibit that exercise; the suspension may, to the extent determined by the supervisory authority, involve the total or partial suspension of the performance of the contracts in progress.
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 responsible in solidarity with the resulting harm to the institution or to third parties.
If the supervisory authority has issued the suspension or prohibition to the Belgian Monitor, the acts and decisions taken in contravention of the latter are null and void;
5° enjoining a credit institution to assign any partner rights that it holds in accordance with sections 89 and 90 of Regulation No. 575/2013; Article 54, paragraph 2, is applicable;
6° revoke the approval. The decision to revoke and its reasons are notified by the supervisory authority to the European Banking Authority.
§ 2. Notwithstanding the conditions of application of paragraph 1erin the event of extreme emergency, the control authority may adopt the measures referred to in paragraph 1er without a time limit being previously set.
§ 3. Decisions of the control authority referred to in paragraph 1er deviate their effect on the establishment on the date of their notification to the establishment 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 paragraph 1er.
§ 4. The supervisory authority may also adopt the measures referred to in this article in the event that a credit institution has obtained an approval by means of false statements or by any other irregular means.
§ 5. Article 234, §§ 1er and 2, as well as paragraph 1erParagraph 1er, 1°, 2°, 4° and 6° and paragraphs 2 and 3 of this article are applicable in case the supervisory authority is aware that a credit institution has established a particular mechanism for the purpose or effect of promoting tax evasion by third parties.
§ 6. In case of a serious and systematic violation of the rules referred to in Article 45, § 1erParagraph 1er, 3°, or § 2, of the law of 2 August 2002, the supervisory authority may revoke the approval, if any, upon request of the Bank pursuant to a request of the MSDS in accordance with the procedure and the procedure established by section 36bis of that Act.
§ 7. Paragraph 1erParagraph 1er and subsection 3 are not applicable in the event of the cancellation of a bankrupt registered credit facility.
§ 8. The Court of Commerce shall decide on the application of any interested person, the invalidity provided for in paragraph 1erParagraph 2, 1 and 4.
The nullity action is directed against the establishment. 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 establishment, the court may declare nullity in respect of such rights without prejudice to the right of the applicant to damages and interests if applicable.
The action in nullity may no longer be brought after the expiration of a period of six months from the date on which the acts or decisions taken are enforceable against the person who invokes nullity or are known to him.
Art. 237. The Bank shall inform FSMA of the decisions taken pursuant to Articles 233 to 236 and shall keep the MSDS informed of the action taken against these decisions.
It also informs the competent authorities of the credit institutions of the other Member States in which a Belgian credit institution has established branches or carries out activities referred to in Article 4, under the regime of the free provision of services.
Art. 238. Credit institutions whose accreditation has been terminated or revoked under sections 233 and 236 remain subject to this Act and to the orders and regulations made for its execution up to the repayment of funds received from the public, unless the supervisory authority exempts them from certain provisions.
This section is not applicable in the event of the cancellation of the registration of a bankrupt registered credit institution.
PART VII. - Federations of credit institutions
Art. 239. § 1er. The following provisions apply in this article:
1° they are permanently affiliated to a central body subject to the provisions of Titles Ier in VI of this Book, with which they form a federation according to the rules of affiliation approved by the supervisory authority;
2° the commitments of the affiliated institutions and the central agency constitute joint commitments;
3° the operations and organization of the affiliated institutions are subject to a uniform internal regulation of the federation;
4° the central agency exercises direct control over affiliated institutions and has the power to give them instructions on their management, operations and organization.
§ 2. Without prejudice to the other provisions of this Book, Book III, Title III and Books IV, V, VI and VIII, the following provisions apply in the manner indicated below to the credit institutions referred to in paragraph 1er :
1° the approval is decided on the opinion given to the Bank by the central agency concerning the compliance by the establishment of the terms and conditions referred to in paragraph 1er of this article. Affiliates mention their affiliation in their statutes and in their titles, effects, documents, correspondence and advertising. Accreditation is terminated as a result of termination of affiliation in accordance with the rules applicable to the federation; the latter shall give notice at least one month in advance to the supervisory authority that may require any necessary measures to protect the rights of creditors. Accreditation decisions should not be published on the list of credit institutions;
2° the minimum amount of capital provided for in section 17 is required on the basis of the overall situation of the central agency and its affiliated institutions;
3° Article 19 is not applicable to the leaders of the affiliated institutions;
4° section 55 applies on the basis of the overall situation of the central agency and its affiliated institutions;
5° Article 72, § 1er is extended to affiliated institutions for the granting of loans, credits and guarantees to administrators or managers of the central agency; it does not apply to loans, credits and guarantees granted by the central agency or another institution affiliated with directors of affiliated institutions that do not carry out routine management functions if these loans, credits or guarantees meet the conditions set out by rules applicable to the federation and approved by the supervisory authority;
6° sections 86 to 92 and section 89 of Regulation No. 575/2013 apply on the basis of the overall situation of the central agency and affiliated institutions;
7° sections 94 to 107, 149 to 152 and the regulations made under section 98 as well as sections 92, 412 and 413 of Regulation No. 575/2013 apply on the basis of the overall situation of the central agency and affiliated institutions;
8° without prejudice to the compliance of these provisions by the central agency with respect to it, section 106, paragraph 2, and section 107 prescribing various communications and publications shall apply on the basis of the overall situation of the central agency and affiliated institutions;
9° the central agency shall comply with the provisions of this Title and the provisions of this Title by the affiliated institutions; it also responds to their management, administrative and accounting organization and internal control;
10° Chapter IV of Title III of this Book is not applicable to affiliates taken in isolation. The mission and duties of commissioners accredited to the central agency extend to the overall situation and functioning of the federation. These Commissioners may conduct on-site inspections that they consider necessary from affiliated institutions. They report to the organs of the central body. Affiliated establishments may not grant loans, credits or guarantees to registered commissioners or grant them any remuneration or benefits;
11° the commissioners approved according to the central agency shall ensure in respect of the overall periodical situations and the overall annual accounts of the federation the same duties as in respect of the periodic and annual accounts of the central agency;
12° by derogation from section 142 of the Code of Companies, affiliated institutions that have the form of a cooperative corporation are not required to appoint one or more commissioners, regardless of their size. When they have not appointed a Commissioner, sections 165, 166 and 385 of the same Code apply. The filing of the annual accounts prescribed by Article 106, § 1er is not required in isolation from affiliated institutions. The associates of the affiliated institutions and all concerned have, in any case, the right to take, without displacement, knowledge of the last annual accounts of those institutions;
13° by derogation from Article 66, paragraph 2, of the Code of Companies, affiliated institutions that have the form of a limited liability cooperative corporation may be formed by public special acts or under private signature. Acts amending the statutes may also, irrespective of the form of their constituent instrument, be public special acts or under private signature.
Art. 240. The credit unions affiliated with the Crelan S.A. form a federation of credit institutions within the meaning of section 239. The termination of a credit union shall be decided by the Board of Directors of Crelan S.A. when the credit union meets the conditions prescribed by the rules of affiliation adopted by the board of directors in accordance with Article 239, § 1er1°.
The steering committee shall establish the internal uniform regulation of the federation of credit institutions in accordance with Article 239, § 1er, 3°, and exercises, in respect of these bodies, the competences referred to in Article 239, § 1erFour.
Art. 241. § 1er. The rules of affiliation of the federation referred to in section 240 shall contain the necessary provisions for the execution and implementation of section 239. Without prejudice to the powers conferred on the supervisory authority under section 239, § 2, 1°, the waiver of the affiliation or voluntary termination of the banking activities by an affiliate may only be subject to a condition other than that of respecting a notice expiring on December 31 of the year following that in the course of which the declaration of renunciation or termination of the deposit and credit activities is notified to the agency. However, the Board of Directors of Crelan S.A. may, by reason of decision, authorize the waiver of the voluntary termination or termination of deposit and credit activities to produce its effects at a closer date.
§ 2. Affiliated credit unions may acquire control of the central agency together or with third parties. An affiliate credit union may not acquire exclusive control or joint control without having previously proposed to the other affiliate credit unions to participate in this control in proportion to the following accounting elements, as recorded as of December 31 of the year prior to the date of the acquisition, after assignment of the result and as defined by the regulations relating to the annual accounts of credit institutions: reserves, reassessment surpluses, contingency funds
PART VIII. - Resolution of credit facility failures
CHAPTER Ier. - Definitions
Art. 242. For the purposes of this Title and the decrees and regulations made for its execution, it is necessary to hear by:
1st resolution measure, the decision of the resolution authority to implement a resolution instrument in respect of a credit institution or to exercise a resolution power against such an institution;
2° resolution power, a power referred to in section 276 or 277;
3rd instrument of assignment of activities, the mechanism allowing the resolution authority, in accordance with Article 256, to transfer to a repreneur shares or other titles issued by a credit institution subject to a resolution procedure or assets, rights or commitments of such credit institution;
4th instrument of the establishment-relais, the mechanism allowing the resolution authority to transfer shares or other titles issued by a credit institution to a re-established institution, in accordance with Article 260, subject to a resolution procedure or the assets, rights or commitments of such credit institution;
5° instrument for the separation of assets, the mechanism allowing the resolution authority, in accordance with Article 265, to transfer to a structure for the management of assets, assets, rights or commitments of a credit institution subject to a resolution procedure;
6° Receiver entity, registrar, re-establishment or asset management structure, as applicable;
7° repreneur, a legal entity, other than a business establishment or an asset management structure, to which shares, other property titles, assets, rights or commitments of a credit institution are transferred from a resolution procedure;
8° establishment-relais, a legal entity that is wholly or partially owned by one or more public authorities, is controlled by the resolution authority, and was created with the aim of receiving shares, other titles of property, assets, rights or commitments of one or more credit institutions subject to a resolution procedure, with a view to pursuing all or part of the activities and services of these institutions;
9° asset management structure, a legal entity that is wholly or partially owned by one or more public authorities, is controlled by the resolution authority, and has been created with the aim of receiving assets, rights or commitments from one or more credit institutions subject to a resolution procedure or one or more local institutions;
10° eligible debts, liabilities or liabilities of a credit institution that do not fall under any of the following categories:
(a) insured deposits;
(b) Guaranteed commitments, including covered bonds;
(c) commitments resulting from the possession of assets or liquidity of clients, provided that the rights of such clients are recognized in bankruptcy law;
(d) commitments arising from a trust relationship between the credit institution as a trustee and another person as a beneficiary, provided that the rights of the beneficiary are recognized in bankruptcy or civil law;
(e) commitments to unrelated credit institutions or investment companies that have a maturity of less than seven days;
(f) commitments of a residual maturity of less than seven days to systems or operators designated for the purposes of Directive 98/26/EC or their participants and resulting from participation in such a system;
(g) commitments to workers in connection with wages, pension allowances or any other fixed remuneration, except for the variable component of the remuneration that is not regulated by a collective labour agreement and the variable component of the remuneration of persons in a position involving risk-taking;
(h) commitments to commercial creditors in connection with the provision to the establishment of computer services and public utility services, the rental, maintenance and maintenance of premises or other goods or services that are essential for the day-to-day operations of the establishment;
(i) debts to tax and social security authorities, provided that the corresponding receivables have priority under applicable law; and
(j) debts to deposit guarantee systems for contributions due in accordance with European Parliament and Council Directive 2014/49/EU of 16 April 2014 on deposit guarantee systems;
11° guaranteed commitment, commitment or liability for which the right to payment of the creditor or any other form of execution is guaranteed by a right, collateral, privilege or security provision, including the commitments resulting from disposal-retrocession (repos) transactions and other security contracts with transfer of ownership;
12° Relevant equity instruments, additional Category 1 equity instruments and Category 2 equity instruments that meet the requirements set out in Articles 52, paragraph 1 and 63 of Regulation No. 575/2013 respectively;
Group 13, the group constituted by a Belgian credit institution and its Belgian and foreign affiliates, subject as such to consolidated monitoring;
14° Directive 98/26/EC, Directive 98/26/EC of the European Parliament and the Council of 19 May 1998 on the final nature of the regulation in the payment and settlement systems of securities transactions;
15th court, the Brussels Commercial Court;
16° the Court of Appeal, the Court of Appeal of Brussels;
17° decision of disposition, the decision of the resolution authority to order the transfer of shares, other titles of ownership, assets, rights or undertakings by application of a resolution instrument or to implement the powers referred to in Article 250 or Article 276, § 2, 4° or 5°;
18° proprietors, natural or legal persons who, on the date of the resolution measure, own shares, other titles of property or assets, or holders of receivables or other rights, which are the subject of an act of disposition ordered by the resolution authority as part of a resolution measure;
19° compensatory amount, the sum of the amounts that the owners of the same class have actually recovered, or that they may reasonably expect to recover, on their shares, other titles of property, assets, receivables or other rights in the context of a resolution procedure, as calculated or estimated in the manner defined by the King, including, as the case may be, the share of the price returned to the owners under 1 §
CHAPTER II. - Objectives,
general conditions and principles of the resolution
Section Ire. - Objectives of the resolution
Art. 243. § 1er. The resolution is the restructuring of a credit institution failing by the application of one or more resolution instruments for the purpose, as the case may be:
1° to ensure continuity of critical functions of the credit institution;
2° to avoid serious negative effects on financial stability, including by preventing contagion, including market infrastructure, and by maintaining market discipline;
3° to protect State resources by a maximum reduction in the use of exceptional financial support from public authorities; and
4° to protect the insured deposits and the funds and assets of the clients of the credit establishment.
§ 2. Subject to exceptions provided by this Act, the objectives referred to in paragraph 1er are of the same importance and the resolution authority decides on the right balance between these objectives based on the nature and circumstances of each case.
Section II. - Conditions
triggering a resolution procedure
Art. 244. § 1er. The resolution authority shall apply a resolution instrument against a credit institution only when it considers that each of the following conditions is met:
1° the control authority, after consultation with the resolution authority, or the resolution authority, after consultation with the control authority, has established that the failure of the credit establishment is proven or predictable;
2° Given the time limits and other relevant circumstances, there is no reasonable prospect that another private or prudential action taken with respect to the credit establishment, including the measures referred to in section 232 or the depreciation or conversion of equity instruments in accordance with Chapter IV, prevents the failure of the credit establishment within a reasonable period of time; and
3° a resolution is necessary in the public interest.
For the application of 1°, the control authority is required to examine whether the failure of a credit institution is proven or predictable upon request of the resolution authority.
§ 2. For the purposes of paragraph 1er, 1°, the failure of a credit institution is deemed to be proven or predictable if it is in one or more of the following situations:
1° the credit institution breaches the requirements that condition the maintenance of the licence, or objective elements, to conclude that it will breach them in the near future, in proportions justifying the withdrawal of the approval by the control authority, in particular because the credit institution has suffered or is likely to suffer losses that absorb a substantial portion of its own funds;
2° the net assets of the credit institution are negative, or there are objective elements to conclude that this will occur in the near future;
3° the credit institution is not in a position to fulfill its commitments on maturity, or there are objective elements to conclude that this will occur in the near future; or
4° Exceptional financial support from public authorities for the credit establishment is required.
§ 3. For the purposes of paragraph 1er, 3°, a resolution is considered necessary in the public interest if it is necessary to achieve one or more of the objectives referred to in Article 243, § 1er, while a liquidation of the credit facility would not allow it to the same extent.
§ 4. For the purposes of paragraph 2, 4°, it is not taken into account, under the conditions defined by the King, measures of support for credit facilities in order to remedy a serious disruption of the economy and to preserve financial stability.
Section III. - General principles governing the resolution
Art. 245. § 1er. When the resolution authority applies the resolution instruments and exercises the resolution powers, it shall take all appropriate measures to ensure that the resolution measure complies with the following principles:
1° the shareholders of the credit facility bear the losses on the front line;
2° creditors of the credit institution shall bear the losses after the shareholders, according to the order of priority of their claims in the event of a creditor contest, subject to the exceptions provided for in this Act;
3° the legal body of administration and the direction of the credit institution shall be replaced, except in cases where the resolution authority considers the maintenance of the organ or management, in whole or in part, under the circumstances, necessary to achieve the objectives of the resolution;
4° the legal body of administration and the management of the credit institution provide all the assistance required to achieve the objectives of the resolution;
5° the causes and liability in the failure of the credit institution are investigated;
6° in respect of judicial guarantees, individuals and entities are required to report on the failure of the credit institution within the limits of their liability;
7° subject to the exceptions provided for in this Act, creditors of the same category of the credit institution shall be treated on an equal footing;
8° no creditor shall be liable to losses greater than those allegedly incurred if the credit institution had been liquidated under a liquidation procedure;
9° insured deposits are fully protected; and
10° the resolution is taken in accordance with the safeguards provided for in Chapter VII.
§ 2. The investigation referred to in paragraph 1er, 5°, is carried out by a panel of experts appointed by the court at the request of the resolution authority.
Sections 972 to 976, 978, 984 and 987 to 991bis of the Judicial Code apply to the investigation, provided that:
1° the resolution authority and the credit institution concerned are considered to be the parties to the investigation procedure; and
2° the costs and fees of the experts are expenses of the resolution referred to in article 272.
§ 3. When the resolution authority applies the resolution instruments and exercises the resolution powers, it shall inform and consult with the representatives of the workers of the credit institution about the consequences for employment and working conditions.
CHAPTER III. - Valorization
Art. 246. § 1er. Before taking a resolution action, or exercising the power to depreciate or convert the relevant equity instruments pursuant to Chapter IV, the resolution authority shall ensure that a fair, prudent and realistic valuation of the assets and liabilities of the credit institution is carried out by a person independent of any public authority, including the resolution authority, as well as the establishment of credit.
§ 2. Valuation has the following objectives:
1° gather information to determine whether the conditions for triggering a resolution procedure or depreciation or conversion of equity instruments are met;
2° if the conditions for triggering a resolution procedure are met, gather information to make the choice of appropriate resolution measures;
3° where the depreciation or conversion authority of the relevant equity instruments is considered to be the basis for calculating the depreciation to be applied in order to absorb the losses and the level of conversion to be applied in order to recapitalize the credit institution;
4° where it is envisaged to apply the instrument of assignment of activities, gather information to determine the shares or other titles of ownership or the assets, rights or commitments to be transferred, and determine what constitutes commercial conditions for the purposes of Article 256, § 2;
5° where it is envisaged to apply the instrument of the establishment-releas or separation of assets, gather information to determine the shares or other titles of property or assets, rights or commitments to be transferred and the value of any consideration to be paid to the credit institution or, where applicable, to the owners of the shares or other titles of property;
6° ensure that any loss incurred on the assets of the credit institution is fully taken into account at the time the resolution instrument is applied or at the time the power of depreciation or conversion of the equity instruments is exercised.
Art. 247. § 1er. The valuation is based on conservative assumptions, including the default rates and severity of losses. It does not include any outstanding future financial support from the public authorities, or any exceptional support for the liquidity of the central banks or other liquidity facilities of the central banks under special conditions in respect of security rights, duration or interest.
§ 2. The valuation is supplemented by the following information:
1° an updated balance sheet and a report on the financial situation of the credit institution;
2° an analysis of the book value of its assets;
3° the list of its liabilities payable, including non-balance sheet liabilities, with the indication of creditors and their order of priority in the event of creditor competitions.
§ 3. If necessary, in order to gather information to make the decisions referred to in Article 246, § 2, 4° and 5°, the information referred to in paragraph 2, 2°, shall be supplemented by an estimation and analysis of the market value of the assets and liabilities of the credit establishment.
§ 4. The valuation report specifies the distribution of creditors in different categories according to their order of priority in the case of creditors contests and assesses the treatment that each class of shareholders and creditors would have been likely to receive if the credit establishment had been liquidated in a liquidation procedure.
Art. 248. § 1er. Subject to section 296, where all requirements set out in sections 246 and 247 are met, the valuation is considered final.
§ 2. Where it is not possible, due to the urgency of the situation, to make a valuation that meets all the requirements set out in sections 246 and 247, the resolution authority shall make an interim valuation of the assets and liabilities of the credit establishment.
Preliminary valuation shall, to the extent reasonably possible in the circumstances, meet the requirements of sections 246 and 247. It incorporates an additional loss cushion, with a justification of its amount.
The interim valuation carried out in accordance with this paragraph allows the resolution authority to take resolution measures or exercise the power to depreciate or convert the relevant equity instruments.
§ 3. The provisional valuation is followed, as soon as possible, by a final valuation that fully complies with all the requirements set out in sections 246 and 247. This valuation is carried out separately or in conjunction with that referred to in section 283.
In the event that the final valuation results in a value greater than the value resulting from the provisional valuation, the resolution authority shall determine, where appropriate, the surcharge of prices that the establishment-relais or the asset management structure shall pay to the credit institution or to the owners, as the case may be, in exchange for shares, other titles of ownership, assets or rights transferred under the instrument of the establishment-relais or the property separation.
Art. 249. By order deliberately in the Council of Ministers, taken on the advice of the resolution authority, the King may define:
1° the conditions under which a person is considered independent within the meaning of Article 246, § 1er;
2° the method or methods to be used to assess the market value of the assets and liabilities of the credit institution for the application of Article 247, § 3; and
3° the method or methods to be used to calculate the additional loss cushion referred to in Article 248, § 2, paragraph 2.
CHAPTER IV. - Depreciation
or conversion of equity instruments
Art. 250. § 1er. The resolution authority has the power to depreciate the relevant equity instruments or to convert them into shares or other property titles of the credit establishment in accordance with the provisions of this Chapter.
This power may be exercised either separately or, where the conditions for triggering a resolution procedure referred to in Article 244, § 1er, are completed, in combination with a resolution measure.
§ 2. The resolution authority shall exercise the power referred to in paragraph 1er without delay once one or more of the following conditions are met:
1° the resolution authority has established that the conditions for triggering a resolution procedure referred to in Article 244, § 1er, are gathered before a resolution action has been taken;
2° the resolution authority finds that the credit institution or its group will no longer be viable unless it exercises that power; or
3° the credit institution requires exceptional financial support from the public authorities.
§ 3. For the purposes of paragraph 2, 3°, it is not taken into account, under the conditions defined by the King, measures to support credit establishments in order to remedy a serious disruption of the economy and to preserve financial stability.
Art. 251. For the purposes of section 250, § 2, 2°, a credit institution or its group is deemed to be no longer viable only if the following two conditions are met:
1° the failure of the credit institution or its group is proven or predictable; and
2° Given the time limits and other relevant circumstances, there is no reasonable prospect that any action other than the depreciation or conversion of the relevant equity instruments, implemented separately or in combination with a resolution measure or one or more of the measures referred to in Part VII, prevents the failure of the credit institution or its group within a reasonable period of time.
For the purposes of paragraph 1er1°:
1° the failure of a credit institution is deemed to be proven or predictable if it is in one of the situations referred to in section 244, § 2;
2° the failure of a group is deemed to be proven or foreseeable if the group violates the consolidated prudential requirements or if objective elements allow it to conclude that it will breach them in the near future, in proportions justifying the intervention of the control authority, in particular because the group has suffered or is likely to suffer losses that absorb a substantial portion of its own funds.
Art. 252. The resolution authority shall proceed with the depreciation or conversion of the relevant equity instruments according to their order of priority in a liquidation procedure, so that:
1° Elements of Category 1 core funds are first reduced in proportion to losses and to the limit of their capacity; and
2° the principal amount of the relevant equity instruments is then depreciated or converted into Category 1 core equity instruments to the extent required and to the limit of the capacity of the relevant equity instruments.
Art. 253. When the principal amount of the relevant equity instruments is depreciated:
1° the effects of the reduction are permanent;
2° no obligation vis-à-vis the holder of the relevant equity instrument remains within the scope of the said instrument or in connection with the amount depreciated, with the exception of obligations already expired and responsibilities that may arise from a judicial review of the legality of the exercise of the power of depreciation;
3° no compensation shall be paid to the holders of the equity instruments relevant to the exception of that provided for in section 254.
Art. 254. § 1er. With a view to converting the relevant equity instruments in accordance with Article 252, 2°, the resolution authority may require the credit institution to issue Category 1 core equity instruments in favour of the holders of the relevant equity instruments.
§ 2. Relevant equity instruments may only be converted to Category 1 core equity instruments if the following conditions are met:
1° these basic Category 1 equity instruments are issued by the credit institution or by its parent company with the agreement of the resolution authority;
2° these instruments are issued before any issuance of shares or other titles of property by the credit institution for the purpose of a capital intake by the State or a public entity;
3° they are assigned and transferred to the relevant holders of the relevant equity instruments without delay after the exercise of the conversion power;
4° the conversion rate is established in accordance with the following principles:
(a) the rate is appropriate compensation for the relevant holders of the relevant equity instruments; and
(b) the rate applicable to non-subordinate debts is higher than that applicable to subordinate debts.
§ 3. For the purposes of paragraph 1er, the resolution authority may require credit institutions to continue to maintain the necessary prior authorization for the issuance of an adequate number of Class 1 equity instruments.
CHAPTER V. - Resolution instruments
Section Ire. - Principles
Art. 255. § 1er. The instruments of resolution are as follows:
1° the assignment of the activities of the credit establishment;
2° the use of an establishment-relais;
3° separation of assets.
§ 2. By deliberately decreed in the Council of Ministers, taken on the advice of the resolution authority, the King may take all necessary measures to implement the mandatory provisions of international treaties or international acts taken under them to complete the instruments of resolution with an instrument of internal renaffilation (bail-in) enabling the resolution authority to depreciate any or part of the eligible debts of other
To that end, this order may require credit institutions to maintain at any time a minimum level of equity and debt eligible for an orderly resolution.
The powers granted to the King by paragraph 1er expire 31 December 2015.
The order made under this paragraph may amend, supplement, replace or repeal the existing legal provisions.
This order cannot enter into force before 1er January 2016. It is repealed in full law when it has not been confirmed by law within twelve months of its publication to the Belgian Monitor.
§ 3. The resolution authority may apply the resolution instruments separately or in combination.
However, it can only apply the asset separation instrument simultaneously with another resolution instrument.
§ 4. When the resolution instruments referred to in paragraph 1er, 1° or 2°, are used to transfer only part of the assets, rights or commitments of the credit institution, the credit institution is liquidated according to a liquidation procedure.
The liquidation shall take place within a reasonable period of time, taking into account the possible need for the establishment of credit to provide services under section 279 with a view to enabling the receiving entity to carry out the activities or services transferred, and any other reason why the maintenance of the credit institution is necessary to achieve the objectives of the resolution or to comply with the principles set out in section 245.
§ 5. In exceptional circumstances, in the event of a systemic crisis or when the application of the resolution instruments is not sufficient to avoid significant negative effects on financial stability, the King may, by order deliberately in the Council of Ministers, taken on the advice of the resolution authority, authorize the State, under the conditions it defines, to acquire, directly or indirectly, all or part of the shares or other titles of ownership of a credit institution or to participate in the recapitalization.
The instrument referred to in paragraph 1er may be implemented only if the following conditions are met:
1° the resolution authority has established that the conditions for triggering a resolution procedure referred to in Article 244, § 1er, are gathered in the head of the credit institution concerned;
2° the rules of the European Union concerning State aids are respected;
3° the instrument is implemented for the transfer of shares or other titles of ownership to the private sector within a short time; and
4° holders of shares, other titles of property, instruments of relevant equity and eligible debts have contributed, through depreciation or conversion to the application of section 250 or otherwise, to the absorption of losses or to the recapitalization to the amount of at least eight percent of the total of the assets of the credit establishment (in this case, the total of the assets of the credit establishment)
Section II. - Instrument for the disposal of activities
Art. 256. § 1er. Where the conditions referred to in Article 244, § 1er is satisfied, the resolution authority may order, for the benefit of any registrant, any act of disposition, including any act of sale, assignment or contribution, relating to the shares or other titles of property issued by the credit institution or on all or part of the assets, rights or commitments of the credit institution.
§ 2. The resolution authority shall take all reasonable measures to ensure that the transfer takes place on commercial conditions that correspond to the valuation carried out under Chapter III, in respect of the circumstances of the case and in accordance with the European Union's rules on State aid.
§ 3. Subject to section 272, any consideration paid by the registrar shall be:
1° to the owners of the shares or other titles of ownership, where the assignment of activities was carried out by the transfer of all or part of their shares or securities;
2° to the credit institution, where the assignment of activities was carried out by the transfer of all or part of its assets.
Art. 257. § 1er. When applying the instrument for the assignment of activities, the resolution authority ensures that the sale process:
1° be as transparent as possible in the circumstances and in particular in the need to maintain financial stability;
2° does not promote any candidate-acquirers;
3° is not involved in any conflict of interest;
4° takes into account the need for prompt resolution, taking into account the objectives of the resolution;
5° aims to maximize, to the extent possible, the counterparty obtained for shares, other titles of ownership, assets or rights transferred, taking into account the objectives of the resolution.
§ 2. The resolution authority may derogate from the requirements referred to in paragraph 1er where it concludes that compliance with these objectives would be likely to jeopardize the achievement of one or more of the objectives of the resolution, and in particular if it considers that:
1° the failure or potential failure of the credit facility poses a significant threat to financial stability, or aggravates such a threat; and
2° It is likely that compliance with the requirements would adversely affect the effectiveness of the instrument of assignment of activities by limiting its ability to address the threat referred to in 1° or to achieve the objectives of the resolution.
Art. 258. The registrant must have the necessary accreditation to carry out the activities and provide the services transferred to it. The authorities concerned, if applicable the supervisory authority, shall consider such a request for approval in due course.
Art. 259. § 1er. If a transfer of shares or other titles issued by the credit institution results in the acquisition of a qualified interest in the credit institution or the increase of such participation that would achieve or exceed one of the thresholds provided for in section 46, the control authority shall conduct the assessment referred to in section 48 as soon as possible so as not to delay the implementation of the resolution measure and
§ 2. By order made on the advice of the resolution authority, the King shall rule the legal effects of the transfer of shares or other titles of property referred to in paragraph 1er and the exercise of the rights relating thereto during the assessment period of the registrar by the supervisory authority and the consequences of any opposition by the supervisory authority to the transfer. The order made under this paragraph may derogate from section 51 to the extent permitted by the mandatory provisions of international treaties or international acts taken under them.
Section III. - Instrument of the establishment-relais
Art. 260. § 1er. Where the conditions referred to in Article 244, § 1er is satisfied, the resolution authority may order, for the benefit of any establishment-releas, any act of disposition, including any act of sale, assignment or contribution, relating to the shares or other titles of property issued by the credit institution or on all or part of the assets, rights or commitments of the credit institution.
§ 2. The resolution authority ensures that the total value of the commitments transferred to the establishment-relais is not greater than the rights and assets transferred from the credit institution or from other sources.
§ 3. Subject to section 272, any consideration paid by the establishment-relais shall be:
1° to the owners of the shares or other titles of ownership, where the transfer to the establishment-relais was made by the transfer of all or part of these shares or titles of ownership;
2° to the credit institution, when the transfer was made by the transfer of all or part of its assets.
Art. 261. § 1er. After applying the instrument of the establishment-relais, the resolution authority may order that all or part of the shares or other titles of property or the assets, rights or commitments of the establishment-relais be transferred to a third party.
§ 2. When the resolution authority decides to sell the shares, other titles of property, assets, rights or commitments of the establishment-relais, they are put on the market in an open and transparent process, without promoting any of the applicants-acquired.
This sale is made under market conditions, in respect of the circumstances and in accordance with the European Union's rules on State aid.
Art. 262. § 1er. The resolution authority approves:
1° the statutes of the establishment-relais;
2° the composition of its legal organ of administration and its effective direction;
3 the identity, responsibilities and remuneration of persons responsible for its effective management; and
4° his strategy and risk profile.
§ 2. The property must have the necessary accreditation to carry out the activities and provide the services transferred to it.
Notwithstanding paragraph 1er, the resolution authority may, to the extent permitted by the mandatory provisions of international treaties or international acts pursuant to them, exempt the establishment-relais, for a transitional period and under the conditions it determines, from the approval referred to in paragraph 1er.
§ 3. The establishment-relais, the members of its legal body of administration and the members of its effective management are not liable for any civil liability due to their acts or omissions in the execution of the mission of the establishment-relais, except in the event of a dol or heavy fault.
Art. 263. § 1er. The resolution authority decides that the institution-relais ceases to have that status as soon as possible on the first of the following occasions:
1° the establishment-relais is merged with another entity;
2° the establishment ceases to meet the criteria provided for in Article 242, 8°;
3° the whole or the bulk of the assets, rights and commitments of the establishment-relais are sold or disposed of to a third party;
4° the period provided for in Article 264, § 1er, or, where applicable, in article 264, § 2, came to an end;
5° the assets of the establishment-relais are fully liquidated and its commitments are fully paid.
§ 2. When an institution-relais status is terminated pursuant to paragraph 1er, 3° or 4°, it is proceeded to the dissolution and liquidation of the establishment-relais.
After the payment, or the consignation of the amounts required for payment, the debts of the establishment-relais, and subject to section 272, any net proceeds resulting from the liquidation of the establishment-relais shall be the shareholders of the establishment.
Art. 264. § 1er. If none of the situations referred to in Article 263, § 1er, 1°, 2°, 3° or 5°, does not occur, the resolution authority terminates the activity of the establishment-relais as soon as possible and at the latest at the end of a period of twenty-four months after the date of the last transfer from a credit institution made under the instrument of the establishment-relais.
§ 2. The resolution authority may extend the period referred to in paragraph 1er one or more additional twelve-month periods when this extension:
1° promotes the occurrence of one of the situations referred to in Article 263, § 1er, 1°, 2°, 3° or 5° ; or
2° is necessary to ensure continuity of critical functions.
Any decision of the resolution authority to extend the period referred to in paragraph 1er contains a detailed assessment of the situation, including market conditions and prospects, justifying the extension.
Section IV. - Instrument for Separation of Assets
Art. 265. § 1er. The resolution authority may order the transfer of all or part of the assets, rights or commitments of a credit or business establishment to one or more asset management structures only in one of the following cases:
1° the situation on the market of the assets in question is such that a liquidation of these assets in the course of a liquidation procedure might have a negative effect on one or more financial markets;
2° this transfer is necessary to ensure the proper operation of the credit or business establishment; or
3° this transfer is necessary to maximize the proceeds of the liquidation.
§ 2. The resolution authority shall determine the consideration, if any nominal or negative, for the transfer of all or part of the assets, rights and commitments to the asset management structure, in accordance with the principles set out in Articles 246 to 248 and in accordance with the European Union's rules on State aid.
Art. 266. § 1er. The resolution authority approves:
1° the status of the asset management structure;
2° the composition of its legal organ of administration and its effective direction;
3° the identity, responsibilities and remuneration of persons responsible for its effective management; and
4° his strategy and risk profile.
§ 2. The asset management structure, the members of its legal body of administration and the members of its effective management are not subject to any civil liability due to their actions or omissions in the execution of the mission of the asset management structure, except in the event of a dol or heavy fault.
Art. 267. The asset management structure manages the assets transferred to it to maximize their value through an orderly sale or liquidation.
Subject to section 272, any net proceeds resulting from the liquidation of the asset management structure shall be the shareholders of the asset management structure.
Section V. - Common provisions
to the instruments of resolution
Art. 268. § 1er. An orderly transfer pursuant to the instrument of assignment of activities, the instrument of the establishment-relais or the instrument of separation of assets is not subject to:
1° to the approval of the legal body of administration or of the general meeting of the shareholders of the credit institution or of any third party other than the receiving entity, notwithstanding any legal, statutory or contractual provision to the contrary;
2° to compliance with any procedural requirements under the corporate or securities laws other than those arising from the mandatory provisions of international treaties or international acts taken under them.
§ 2. The resolution authority shall notify the Minister of Finance of any provision that it intends to make. The Minister may object within 48 hours if the Minister considers that the act contemplated has a direct tax impact or systemic implications.
Art. 269. § 1er. When applying the instrument for the assignment of activities, the instrument of the establishment-relais or the instrument for the separation of assets, the resolution authority may exercise the transfer authority more than once in order to make additional transfers of shares, other titles of ownership, assets, rights or commitments to the receiving entity.
§ 2. Under the conditions defined by the King on the advice of the resolution authority, it may order that the shares, other titles of property, assets, rights or commitments that have been transferred to a receiving entity pursuant to one of the resolution instruments referred to in paragraph 1er be transferred to the credit facility or their original owners, as the case may be.
Art. 270. Without prejudice to Article 278 and the provisions of Chapter VII and notwithstanding any treaty provision to the contrary, transfers ordered by the resolution authority and validated by the court in accordance with Article 302 may not have the effect of modifying the terms of conventions relating to the transferred activities, or of ending such conventions, or of giving any party the right to unilaterally terminated resilients, of suspending the performance, of such compensation
Art. 271. The receiving entity is deemed to constitute a continuation of the credit establishment and may continue to exercise any right exercised by that institution with respect to the assets, rights or commitments transferred, including the rights conferred by the membership and access to payment, compensation and settlement systems, regulated markets and investor compensation systems and deposit guarantees.
Access to systems and markets referred to in paragraph 1er cannot be denied to the receiving entity on the ground that the receiving entity does not have a rating issued by a credit rating agency or that its rating does not correspond to the level required to be granted access to the systems and markets in question.
When the receiving entity fails to meet the criteria to be a member of a payment, compensation and settlement system, a regulated market or a deposit guarantee system or to participate, the resolution authority defines the transitional period in which it may exercise the rights referred to in paragraph 1er. This period may not exceed 24 months but may be extended by the resolution authority at the request of the receiving entity.
Art. 272. § 1er. The resolution authority may recover any reasonable expenses that it has properly disclosed in connection with the application of the resolution instruments or the exercise of the resolution powers, in one or more of the following terms:
1° to the credit institution subject to the resolution procedure;
2° in deduction of any consideration paid by a receiving entity to the credit institution or to the owners of the shares or other property titles, as the case may be; or
3° in deduction of any product resulting from the termination of the operations of the establishment-relais or the asset management structure.
§ 2. The debt of the resolution authority on the credit establishment for the costs incurred by the credit institution in the context of the resolution procedure for the failure of a credit institution is privileged on the generality of the movable property of the credit establishment.
The privilege referred to in paragraph 1er takes place immediately after the privilege provided for in section 19, 1°, of the Mortgage Act of 16 December 1851.
Art. 273. § 1er. Any credit institution subject to the application of a resolution instrument or for which the resolution authority considers that the conditions for triggering a resolution procedure referred to in Article 244, § 1er, are fulfilled, can be declared bankrupt only at the request or with the agreement of the resolution authority.
§ 2. The Registry of the competent trade tribunal shall promptly inform the resolution authority of any request for the commencement of a bankruptcy proceeding with respect to a credit institution.
Such a request may only be decided if the resolution authority has been informed in accordance with paragraph 1er and if, within seven days of this notification, the resolution authority has not informed the competent trade tribunal that it has implemented a resolution instrument with respect to the establishment of the credit in question or that it considers that it meets the conditions for the initiation of a resolution procedure.
Art. 274. Acts of disposition ordered by the resolution authority as part of a resolution measure may not be held unposable to creditors under sections 17, 18 or 20 of the Bankruptcy Act of 8 August 1997 or section 1167 of the Civil Code.
Art. 275. Transfers ordered by the resolution authority and validated by the court pursuant to section 302 shall be made in full right to the date fixed by the resolution authority, and shall be subject to third parties the conditions set out in section 76 of the Corporate Code.
These transfers also cover the accessories of assigned receivables and security rights or personal guarantees.
CHAPTER VI. - Resolution powers
Section Ire. - General powers
Art. 276. § 1er. The resolution authority may require any credit institution, if necessary through on-site inspections, to provide the required information so that the resolution authority may decide on the adoption of a resolution or exercise its authority to depreciate or convert its own funds instruments.
§ 2. As soon as it has determined that a credit institution meets the conditions for triggering a resolution procedure referred to in Article 244, § 1erthe resolution authority shall have the following powers of resolution, which it may exercise separately or jointly, subject to Article 255, § 3, paragraph 2:
1° the authority to take control of the credit institution and to exercise all the rights and powers conferred on the general assembly of its shareholders and its legal body of administration, in accordance with section 281;
2° the power to order the transfer to a registrar or a retiring institution, with the agreement of the registrar, of shares or other titles issued by the credit institution, in accordance with section 256 or 260;
3° the authority to order the transfer to a receiving entity, with the agreement of the receiving entity, of all or part of the rights, assets or commitments of the credit institution, in accordance with section 256, 260 or 265;
4° the power to order the transfer of all or part of the shares, other titles of property, assets, rights or commitments of the establishment-relais to a third party, in accordance with section 261;
5° the power to reduce, including up to zero, the nominal value of shares or other titles of ownership of a credit institution or to cancel such shares or other titles of ownership;
6° the power to demand from a credit institution or its parent company that it issue new shares or new titles of property or other instruments of equity, including preferential shares and conditional convertible instruments, in accordance with Articles 232, paragraph 2, 10°, and 254, § 1er;
7° the power to revoke or replace the members of the legal body of administration and the effective management of the credit institution; and
8° the power to require the control authority to assess the purchaser of a qualified participation in the credit establishment in a timely manner in accordance with Article 259, § 1er, where appropriate, by derogation from the time limits provided for in articles 47 and 48.
Section II. - Auxiliary powers
Art. 277. Subject to the restrictions provided for in Chapter VII, the Resolution Authority shall, in the exercise of the powers of resolution, have the power to:
1° to take measures to release from any undertaking or security any shares, other property titles, assets, rights or commitments transferred;
2° to remove the acquisition rights of shareholders or third parties on shares or other titles issued by the credit institution;
3° to require the authority concerned to suspend the admission to negotiations on a regulated market or the official rating of the financial instruments issued by the credit institution;
4° take measures to ensure that the receiving entity is treated as if it was the establishment of credit for the purposes of exercising the rights or obligations of the receiving entity, including any right or obligation related to participation in a market infrastructure;
5° to require the credit institution or the receiving entity to provide the other party with information and assistance;
6° to cancel or amend the terms of a contract to which the credit institution is a party;
7° to take any necessary or useful measures to ensure continuity of contracts entered into by the credit institution in accordance with section 270 and to allow the receiving entity to fully exercise the rights and obligations relating to contracts and financial instruments related to the activities transferred to it; and
8° order that the receiving entity be substituted for the establishment of credit as a party to the contracts and financial instruments related to the activities transferred to it and to any legal proceedings concerning any of the assets or liabilities, contracts or rights or obligations transferred.
Art. 278. The powers referred to in section 277 shall not affect:
1° to the right of a credit institution worker to terminate his employment contract;
2° subject to Article 280, § 1erthe right of a party to a contract to exercise the rights provided by the contract, including the right to terminate, because of an act or omission committed either by the credit institution prior to the transfer or by the receiving entity after the transfer.
Section III. - Power to impose
the provision of services and infrastructure
Art. 279. § 1er. Subject to the restrictions set out in Chapter VII, the resolution authority may, as part of the exercise of the resolution powers, impose on the credit institution or any entity of its group to provide the receiving entity with all operating services and infrastructure, excluding any form of financial support, which is necessary to effectively carry out the activities that have been transferred to it.
§ 2. If the services and infrastructure referred to in paragraph 1er were provided to the credit institution under a contract immediately before the resolution was taken, the credit institution provides these services and infrastructure on the same terms and conditions and for the duration of the contract. Otherwise, it provides them on reasonable terms.
§ 3. The resolution authority may specify the minimum list of operating services or infrastructure required to allow the receiving entity to carry out the activities transferred to it.
Section IV. - Ability to suspend certain obligations, to restrict the enforceability of security rights and to suspend termination rights
Art. 280. § 1er. Subject to the restrictions provided for in Chapter VII, the resolution authority may, as part of the exercise of the resolution powers:
1° suspend any obligation of payment or delivery arising out of a contract to which the credit institution is a party, from the publication required by section 295, 1°, until midnight on the working day following that publication, provided that the obligations of payment or delivery of the considerations of the credit institution under the same contract are suspended for the same period;
2° restricting the creditor's right to claim security rights for the period defined in 1°;
3° suspend the cancellation rights of any party to a contract with the credit institution or, under the conditions determined by the King, with a subsidiary of the King, for the duration defined in 1°.
§ 2. No suspension under paragraph 1er, 1°, does not apply:
1° to insured deposits;
2° to payment and delivery obligations due to systems or operators designated for the purposes of Directive 98/26/EC, central counterparties and central banks;
3° to eligible receivables for the purposes of Directive 97/9/EC of the European Parliament and the Council of 3 March 1997 on investor compensation systems.
§ 3. The power referred to in paragraph 1er, 2°, may not be exercised in respect of a security right held by the entities referred to in paragraph 2, 2°, as a margin or warranty by the credit institution.
§ 4. No suspension under paragraph 1er, 3°, applies to entities referred to in paragraph 2, 2°.
Section V. - Exercise of resolution powers
Art. 281. § 1er. In order to take one or more resolution measures, the resolution authority is able to exercise control over the credit institution allowing it to:
1° to have all the powers of the general meeting of shareholders, the legal board of directors and the management of the credit establishment; and
2° to manage and dispose of the assets and assets of the credit institution.
§ 2. The resolution authority may exercise control under paragraph 1er directly or indirectly through one or more people it appoints.
Thus, the resolution authority may appoint a special administrator to the credit institution that has all the powers of the general meeting of shareholders, the legal body of administration and management and exercises these powers under the control of the resolution authority and within the limits defined by the resolution authority.
The task of the Special Administrator is to implement the necessary resolution measures to promote the objectives of the resolution referred to in Article 243 and to execute the decisions of the Resolution Authority.
The duration of the mandate of the special administrator may not exceed twelve months but may exceptionally be extended by the resolution authority. This may revoke the special administrator at any time.
§ 3. The resolution authority may take the resolution measures either by order or by exercising control over the credit establishment in accordance with paragraph 1er. It makes the choice of the method on a case-by-case basis, taking into account the objectives of the resolution and its general principles, the circumstances specific to the establishment of the credit concerned and the need to facilitate an effective resolution in the case of cross-border groups.
CHAPTER VII. - Protection measures
Section Ire. - Protection of shareholders
and creditors in the event of partial transfer
Art. 282. Where the resolution is limited to a partial transfer of the assets, rights and commitments of the credit institution, shareholders and creditors whose receivables have not been transferred shall be paid in settlement of their securities or receivables an amount equal to the amount they would have received if the credit institution had been liquidated, immediately before the transfer, in the course of a liquidation procedure.
Art. 283. § 1er. In order to determine whether the shareholders and creditors would have benefited from better treatment if the credit institution had been liquidated as part of a liquidation procedure, the resolution authority makes a valuation by an independent expert after the execution of the resolution measure concerned. This valuation is distinct from that of Chapter III.
§ 2. By order deliberately in the Council of Ministers, taken on the advice of the resolution authority, the King may specify the method or methods to be used to achieve the valuation referred to in paragraph 1er.
Art. 284. When it appears from the valuation carried out in accordance with Article 283 that a shareholder or creditor referred to in Article 282 or the Guarantee Fund has suffered greater losses than those allegedly incurred in the course of a liquidation, the claimant is entitled to the payment of the difference of the share of the resolution authority, in charge of the financing arrangements referred to in Article 386. The terms of this payment shall be fixed by the King, by order deliberately in the Council of Ministers.
Section II. - Protection of guarantee contracts
Art. 285. § 1er. The resolution authority shall not order the transfer:
1° of assets through which a commitment is guaranteed, unless that commitment and the benefit of security are also transferred;
2° of a guaranteed commitment, unless the security benefit is also transferred;
3° of security benefit, unless the guaranteed commitment is also transferred.
§ 2. The resolution authority may not order the modification or termination of a guarantee contract if this amendment or termination has the effect of putting an end to the guarantee of the undertaking.
For the purposes of paragraph 1er, it is necessary to hear by "guaranteance agreement", any contract under which a person has, as a guarantee, a current or potential interest in assets or rights that may be transferred, whether that interest is guaranteed by specific assets or rights or by a pledge on trade funds or other floating pledges or a similar arrangement.
§ 3. The protections referred to in the preceding paragraphs do not apply to the transfer, modification or termination of assets, rights and commitments related to insured deposits.
Section III. - Protection of structured financing contracts, financial guarantee contracts and compensation agreements
Art. 286. § 1er. The resolution authority may not order partial transfer, modification or termination:
1° of assets, rights and commitments that constitute all or part of a structured financing mechanism, including covered bonds and securitizations, to which the credit establishment is a party;
2° of rights and commitments resulting from a property transfer agreement as a guarantee, including a transfer-retrocession transaction (repo);
3° of the rights and commitments resulting from a bilateral or multilateral innovation or compensation agreement, including a netting agreement or a compensation agreement with a termination of the term (close-out netting).
§ 2. Protection referred to in paragraph 1er does not apply to the transfer, modification or termination of assets, rights and commitments related to insured deposits.
§ 3. The provisions of this Act shall be without prejudice to sections 13 to 16 of the Financial Security Act of 15 December 2004 and shall have various tax provisions in respect of conventions constituting security rights and loans relating to financial instruments.
Section IV. - Exclusion of certain contractual rights
Art. 287. The considerations of the credit institution shall not exercise any right to invoke the termination of the term, nor any right of termination, suspension or compensation, or to carry out any security in the assets of the credit establishment solely as a result of the taking of a resolution measure or of any of the measures referred to in Articles 116, § 2, 232, paragraph 2, 235, 236 or 250, provided that the essential obligations under the contract
Restrictions under paragraph 1er also applies to contracts entered into by affiliates of the credit institution whose obligations are guaranteed by the establishment or by an entity of the group to which the establishment belongs and contracts entered into by an entity of the group that include cross-default clauses.
Section V. - Protection of payment systems
Central counterparties and central banks
Art. 288. § 1er. The resolution authority ensures that the exercise of resolution powers does not affect the operation and regulation of payment and settlement systems.
In particular, transfers, cancellations or amendments imposed by the resolution authority may not have the effect of:
1° revoke a transfer order in violation of Article 4 of the Act of 28 April 1999 to transpose Directive 98/26/EC of 19 May 1998 concerning the final character of the regulation in the securities payment and transaction systems;
2° to amend or render unopposable orders of transfer and compensation in accordance with articles 3 and 4 of the same law;
3° to prevent the use of funds, securities or credit facilities in accordance with section 3 of the Act;
4° affect the guarantees constituted in accordance with Article 8 of the same Law.
§ 2. The resolution authority may not impose on payment systems and regulations or their operators, central counterparties or central banks:
1° suspension of a payment or delivery obligation due by a credit institution;
2° the suspension or restriction of the right to assert security rights to which they benefit on the assets of a credit institution; or
3° the suspension of any right to which they are entitled to terminate a contract with or with a subsidiary of the credit institution.
Section VI. - Protection of workers
Art. 289. The exercise of a resolution authority shall not prejudice the right of a worker of the credit institution to terminate any contract of employment binding him to that institution.
Art. 290. For the purposes of collective labour agreement No. 32bis concluded on June 7, 1985 in the National Labour Council, concerning the maintenance of workers' rights in the event of a change of employer as a result of a contractual transfer of business and regulating the rights of workers resumed in the event of the resumption of the assets after bankruptcy, the resolution measures are considered to be acts performed by the credit institution itself.
CHAPTER VIII. - Procedure requirements
Art. 291. The legal authority for the administration of a credit institution is required to inform the supervisory authority and the resolution authority when it considers that the failure of the credit institution is proven or predictable within the meaning of Article 244, § 2.
Art. 292. Where the resolution authority considers that the conditions referred to in Article 244, § 1er, 1° and 2°, are completed with respect to a credit institution, it shall forthwith communicate this assessment to the following authorities:
1° the control authority;
2° the competent authority for any branch of the credit establishment;
3° the Guarantee Fund;
4° where applicable, the resolution authority at the group level;
5° the Minister of Finance;
6° where the credit facility is monitored on a consolidated basis, the consolidated base supervisor; and
7° CERS.
Art. 293. The decision of the resolution authority determining that the conditions referred to in Article 244, § 1er, in respect of a credit institution, the reasons for this decision are set out.
Art. 294. § 1er. The resolution authority shall promptly notify the credit institution and the authorities referred to in section 292 of any resolution taken against it.
Art. 295. Any resolution shall be published without delay, if any, after the judgment referred to in Article 301, § 5:
1° on the website of the resolution authority;
2° on the website of the credit institution;
3° where shares or other property titles of the credit establishment are allowed to negotiate on a regulated market on the FSMA website; and
4° by extract, identifying the transferred activities and the effective date of the transfer, in the Annexes of the Belgian Monitor, according to the terms defined by the King.
CHAPTER IX. - Judicial oversight
Section Ire. - Validation
Art. 296. Any decision of disposition is subject to pre-trial review by the court in accordance with this Section.
Art. 297. § 1er. The resolution authority shall file with the court registry a request to state that the disposition decision is in accordance with the law and, where applicable, that the compensatory amounts appear to be fair in particular in view of the criteria provided for in Chapter III and Article 301, § 4.
§ 2. In case of invalidity, the request contains:
1° the identity of the credit institution concerned;
2° the identity of the receiving entity;
3° the justification for the disposition decision in relation to the objectives and conditions set out in articles 243 and 244;
4° the agreed price with the receiving entity for shares, other titles of ownership, assets, rights or commitments subject to the disposition decision and, where applicable, the mechanisms for the revision or adjustment of that price;
5° the compensatory amounts, the bases on which the compensatory amounts were calculated or estimated, in particular with regard to the final or provisional valuation carried out in accordance with Chapter III, and the distribution keys between the owners;
6° where applicable, the authorizations of public authorities required and all other suspensive conditions to which the decision of disposition is subordinated;
7° the indication of day, month and year;
8° the signature of the person who represents the resolution authority or his lawyer.
A copy of the disposition decision is attached to the request.
§ 3. The provisions of Title Vbis of Book II of Part IV of the Judicial Code, including articles 1034bis to 1034sexies, are not applicable to the request referred to in paragraph 1er.
Art. 298. The procedure introduced by the request referred to in section 297 excludes any other appeals or actions, whether concurrent or future, against the disposition decision, except for the application referred to in section 305. The filing of the complaint shall not apply to any other procedure, directed against the decision of disposition, which would have previously been introduced and would still be pending before another judicial or administrative court.
Art. 299. § 1er. Within 24 hours of the filing of the application under section 297, the chair of the court shall, by order, fix the day and time of the hearing referred to in section 301, which shall be held within three working days after the filing of the application. This order reproduces all the references provided for in Article 297, § 2.
§ 2. The order referred to in subsection 1er is notified by the registry by judicial fold to the resolution authority, the credit institution concerned and the receiving entity.
It is simultaneously published by extract to the Belgian Monitor. This publication applies, if any, notification to owners other than the credit establishment.
Within 24 hours of notification referred to in paragraph 1er, the credit institution concerned publishes the order on its website.
Art. 300. The persons referred to in Article 299, § 2, may, until the judgment referred to in Article 301, § 5, consult freely the request referred to in Article 297 and its annexes to the court office.
Art. 301. § 1er. At the hearing set by the President of the Court and at any subsequent hearings that the court considers useful to fix, the court hears the resolution authority, the credit institution and the receiving entity.
The court may decide, at the request of one of the parties referred to in Article 299, § 2, or ex officio, that the hearings or some of them take place in the Chamber of Council, by derogation from Article 757, § 1er The Judicial Code.
§ 2. By derogation from the provisions of Chapter II of Book II of Part IV of the Judicial Code, no person other than those referred to in paragraph 1erParagraph 1er, cannot intervene in the proceedings.
§ 3. After hearing the submissions of the parties, the court shall verify whether the disposition decision is in accordance with the law and, where applicable, whether the compensatory amounts appear to be fair.
§ 4. The Tribunal shall take into account the specific situation of the credit institution at the time of the adoption of the disposition decision, including its financial situation as it was or would have been if the exceptional financial support of the public authorities or the advances of emergency liquidity of the central banks of which it directly or indirectly had not been granted.
§ 5. The court shall rule by a single judgment which shall be rendered within three working days after the closure of the proceedings.
Art. 302. The judgment by which the court finds that the decision of disposition is in accordance with the law and, where appropriate, that the compensatory amounts appear to be fair, is translative of the ownership of the shares, other titles of property, assets, rights or commitments subject to the decision of disposition, subject however to the suspensive conditions referred to in Article 297, § 2, 6°.
Art. 303. The judgment referred to in Article 301, § 5, is not subject to appeal, opposition or third opposition.
It is notified by judicial fold to the resolution authority, the credit institution and the receiving entity, and is simultaneously published by extract to the Belgian Monitor.
Within 24 hours of notification, the credit institution publishes the judgment on its website.
Art. 304. A notice confirming the fulfilment of the suspensive conditions referred to in Article 297, § 2, 6°, is published in the Belgian Monitor by the authority of resolution.
Section II. - Appeals
Art. 305. Any decision of disposition or resolution may be appealed to the Court of Appeal in accordance with the provisions of this Section.
Art. 306. § 1er. The application shall be filed, as soon as it is due, within two months from:
1° of the publication by extract to the Belgian Monitor of the judgment referred to in Article 301, § 5, for the measures submitted before the court;
2° the publication of the extract referred to in Article 295, 4°, in the Annexes of the Belgian Monitor, for the other measures.
§ 2. The introduction of the application shall not affect the enforceability of the measure referred to in section 305. The Court of Appeal may decide to suspend the effects of this measure only if the applicant determines that the suspension is in accordance with the general interest.
Art. 307. The application addresses the conformity of the measure referred to in section 305 to the law and, where applicable, the adequacy of the compensatory amount of the class of the affected owners and the distribution key between them.
When the application applies to the adequacy of a compensatory amount, the Court of Appeal shall be based on the valuations carried out in accordance with Chapter III and Article 283 and shall apply Article 301, § 4.
Art. 308. The judgment of the Court of Appeal is without effect on the validity of the measure referred to in section 305, including the transfer of ownership of shares, other titles of property, assets, rights or commitments subject to the decision of disposition.
Art. 309. The application is, for the surplus, governed by the Judicial Code.
Art. 310. All disputes to which the measures referred to in Article 305 or the liability referred to in Article 12ter, § 3 of the Act of 22 February 1998 may be brought shall fall within the exclusive jurisdiction of the Belgian courts.
CHAPTER X. - Resolution of cross-border groups
Art. 311. By order deliberately in the Council of Ministers, taken on the advice of the resolution authority, the King may take all necessary measures to resolve:
1° the application of the provisions of this Title to credit institutions forming part of cross-border groups;
2° the implementation in Belgium of measures of prevention, recovery and resolution taken by the competent authorities of other Member States or third countries;
3° the application of resolution measures to property outside Belgium and to contracts and financial instruments governed by foreign law;
4° exchanges with the competent authorities of other Member States and third countries.
The powers granted to the King by paragraph 1er expire 31 December 2015.
Orders made under this article may amend, supplement, replace or repeal existing legal provisions.
These orders are repealed in full law when they have not been confirmed by law within 12 months of their publication to the Belgian Monitor.
LIVRE III
OF THE CREDIT OF RIGHT AND RIGHT
PART Ier. - Branches and activities in free service delivery in Belgium of credit institutions under the law of another Member State
CHAPTER Ier. - Access to activity in Belgium
Art. 312. § 1er. Credit institutions subject to the right of another Member State, which are authorized under their national right to exercise in their State of origin banking activities on the list provided for in Article 4, may, through the installation of branches, commence these activities as soon as the supervisory authority has notified them, by registered letter to the post or with acknowledgement of receipt, their registration as a branch of credit institution of a Member State.
This notification shall be made no later than two months after the competent authority of the member State of origin of the establishment has communicated the information file required by the provisions of the European Union law in this matter. In the absence of notification within the specified time limit, however, the establishment may open the branch and commence the above activities with a notice given to the supervisory authority.
§ 2. The control authority shall establish a list of registered branches in accordance with paragraph 1er. This list and any changes made to it are published on its website.
§ 3. The Bank shall communicate to the FSMA the elements of the information file that are relevant to the control of compliance with the rules of conduct.
§ 4. The credit institution must notify the control authority of any changes it intends to make to the information contained in the information file referred to in paragraph 1erparagraph 2 at least one month before this amendment is made.
Art. 313. § 1er. Credit institutions subject to the right of another Member State, which are authorized under their national right to exercise in their State of origin banking activities from the list provided for in Article 4, may commence these activities in Belgium under the regime of the free provision of services as soon as the supervisory authority has notified these establishments of the communication that has been made to it by the competent authority of the State member of origin of these establishments
The notification is sent by the supervisory authority to the establishment concerned within three working days of receipt of the communication. If not notified within this period, the establishment may commence the advertised activities, with a notice given to the supervisory authority.
§ 2. The supervisory authority publishes on its website a list of these institutions that receive in Belgium money deposits and other repayable funds from the public as well as the amendments made thereto.
Art. 314. The credit institutions referred to in Articles 312 and 313 shall, in the exercise of their activity in Belgium, accompany their name of the mention of their State of origin and, in the case of Article 313, of their head office.
CHAPTER II. - Exercise of the activity
Art. 315. § 1er. The provisions of this Title shall not prejudice, in the exercise of the activities on the list provided for in Article 4, the legal and regulatory provisions applicable in Belgium to credit institutions and their operations for reasons of general interest.
The Bank shall provide the credit institutions referred to in section 312 with the provisions which, to the Bank's knowledge, are of this nature. To this end, it collects the opinion of FSMA.
The provisions of this Title shall not prejudice further the respect of the applicable legal and regulatory provisions in Belgium for activities other than those included in the list provided for in Article 4.
§ 2. The branches referred to in section 312 shall be subject, within the limits established by the Bank pursuant to a regulation adopted pursuant to Article 12bis, § 2 of the Act of 22 February 1998, to the obligations and prohibitions imposed on Belgian credit institutions in respect of liquidity.
Art. 316. The executives of the branches referred to in section 312 shall report at least once a year to the Bank and to the approved reviewer or to the approved reviewer company on compliance with section 315 and on the appropriate measures taken.
CHAPTER III. - Periodic information and accounting rules
Art. 317. The credit institutions referred to in Article 312 shall transmit to the supervisory authority, in the forms and according to the periodicity determined by the supervisory authority, periodic reports relating to the transactions carried out in Belgium by their branches established therein. The provisions of Article 106, § 2, apply by analogy.
These reports may only be used for statistical purposes or to allow the supervisory authority to carry out its monitoring missions referred to in this Title.
The control authority may, in particular, require credit institutions referred to in paragraph 1er information to assess whether their branch established in Belgium is of significant importance within the meaning of section 322.
Art. 318. The King shall determine, on the advice of the Bank, the rules that the branches referred to in section 312:
1° maintain their accounting and conduct inventory assessments;
2° establish annual accounts;
3° publish annual accounting information relating to their operations.
CHAPTER IV. - Control of branches
Section Ire. - Control authority
as the authority of the host Member State
Art. 319. The branches referred to in section 312 shall be subject to the control authority's control over compliance with sections 315, 317 and 318 to the extent that the substances covered by these provisions fall within the control authority's jurisdiction. Sections 134 to 136 and 139 are applicable to this measure.
Art. 320. In order to monitor the activity of institutions under the law of another Member State operating, in particular by means of a branch, in Belgium or in other Member States, the supervisory authority works closely with the competent authorities of the other Member States concerned.
To this end, the supervisory authority shall, as long as it has it, disclose all information relating to the management and ownership of these establishments that may facilitate their monitoring and review of the conditions of their approval, as well as any information that may facilitate their monitoring, in particular with regard to liquidity, creditworthiness, deposit guarantee, limitation of major risks, other factors that may affect the systemic risk represented by the internal control
Art. 321. The supervisory authority, as the competent authority of the host Member State, may require the competent authority of the original Member State to communicate and explain how the information and findings provided under Article 320 have been taken into consideration.
When, following the communication of information and findings, the supervisory authority considers that the competent authority of the member State of origin has not taken the appropriate measures, it may, after having informed the European Banking Authority and the competent authority of the member State of origin, without prejudice to the possibility for the latter to seize the European Banking Authority pursuant to Article 19 of Regulation No. 1093/2010, take appropriate measures to protect new persons,
Section II. - Significant branches
Art. 322. § 1er. The supervisory authority may request either the consolidated monitoring authority or the competent authority of the Member State of origin that a branch located in Belgium be considered to be of significant importance within the meaning of Article 51 of the Direcive 2013/36/EU.
This request is based on the following elements:
(a) the fact that the market share held by the branch in Belgium in terms of deposits is greater than 2%;
(b) the likely impact of a suspension or termination of the establishment's activities on systemic liquidity and payment, compensation and settlement systems in Belgium;
c) the size and importance of the branch from the point of view of the number of customers, in the context of the Belgian banking or financial system.
§ 2. If no joint decision is made within two months of receipt of the application referred to in paragraph 1er, the supervisory authority itself makes a decision within two months on the significant importance of the branch located in Belgium. The supervisory authority shall make its decision taking into account the opinions and reservations expressed by the consolidated monitoring authority or by the competent authority of the member State of origin.
The decision referred to in paragraph 1er is duly substantiated and communicated to the relevant authorities.
Art. 323. When the supervisory authority, as the competent authority of the host Member State of a significant branch, has not been consulted by the competent authority of the Member State of origin on operational measures for the recovery of liquidity, or when, after this consultation, the supervisory authority considers that the operational measures required in this matter are not adequate, it may refer to the European Banking Authority and request its assistance.
Section III. - On-site control
Art. 324. By means of the information of the control authority, the competent authority of the member State of origin is empowered, if any by means of persons it mandates, to carry out on-site controls and inspections at the branches referred to in section 312 with a view to collecting or verifying information relating to the management and management of the branch as well as any information that may facilitate the control of the credit institution, especially in respect of matters
The supervisory authority may agree, at the request of the competent authority of the Member State of origin of the credit establishment, to carry out inspections with these branches for the purpose of assisting that authority, covering both the substances referred to in paragraph 1er only those referred to in Article 319. The costs of these inspections and audits are borne by the requesting authority.
Art. 325. By giving notice to the competent authority of the Member State of origin of the credit establishment, the supervisory authority may conduct on-site controls to verify that the activity of the branch in Belgium is in accordance with the provisions applicable under this Title.
Art. 326. § 1er. The executives of the branches referred to in section 312 shall, for a renewable period of three years, designate one or more registered auditors or one or more registered auditors.
Articles 223 and 224, subparagraphs 1er to 4 are applicable to such revisers and companies. The revocation of the functions of approved revisers and approved revisers is subject to the prior notice of the supervisory authority.
§ 2. Approved revisers or revisers designated in accordance with paragraph 1er shall cooperate in the control exercised by the supervisory authority, under their personal and exclusive responsibility and in accordance with this paragraph, in the rules of the profession and in the instructions of the supervisory authority. To this end,
1° they assess the internal control measures adopted by branches for compliance with the laws, orders and regulations applicable to branches under section 315, and communicate their findings to the supervisory authority;
2° they report to the control authority on:
(a) the results of the limited review of the periodic reports transmitted by the branches referred to in section 312 to the supervisory authority at the end of the first social semester, confirming that they are not aware of any facts that would appear to be that these periodic reports have not, in all significant respects, been prepared in accordance with the current instructions of the supervisory authority. They further confirm that the periodic reports issued at the end of the semester are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is, they agree with the basis of which they are prepared, they also confirm that they are not aware of any facts that would appear to be that the periodical statements issued at the end of the semester were not prepared by application of the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year; the control authority may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by the branches referred to in section 312 to the supervisory authority at the end of the social year, confirming that these periodic reports have, in all significant respects, been established in accordance with the current instructions of the supervisory authority. They further confirm that the periodic reports issued at the end of the fiscal year are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is, they agree with the exact basis of which they are prepared. they also confirm that the periodic reports issued at the end of the fiscal year have been established by application of the accounting and evaluation rules for the preparation of annual accounts; the control authority may specify which periodic reports are in this case.
They may be charged by the supervisory authority, at the request of the European Central Bank acting in its capacity as monetary authority, to confirm, as well, the information that branches are required to communicate to these authorities, in particular by application of Article 317;
3° they make special reports to the supervisory authority, upon request, on the organization, activities and financial structure of branches in the areas of competence of the supervisory authority in respect of them;
4° they make an initiative in relation to the supervisory authority in the areas of competence of the supervisory authority and in view of the collaboration with the competent authority of the Member State of origin, as soon as they find:
(a) decisions, facts or developments that significantly influence or influence the position of the branch from the financial angle or from the angle of its administrative and accounting organization or internal control;
(b) decisions or facts that may constitute violations of the provisions of this Act and the decrees and regulations made for its execution or other laws and regulations applicable to their activity in Belgium to the extent that the substances referred to in these provisions fall within the competence of the supervisory authority;
5° they report to the Bank, at the request of the Bank, when it is seized by another Belgian authority of violations of general law applicable to the branch.
No civil, criminal or disciplinary action may be instituted or any professional sanction imposed against approved revisers who have proceeded in good faith with information referred to in paragraph 4 of paragraph 1er.
They shall communicate to the officers of the branch their reports to the control authority in accordance with paragraph 1erThree. These communications fall under the secrecy provided for in section 35 of the Act of 22 February 1998. They transmit to the supervisory authority copies of the communications they send to these leaders on matters arising in the control area of the supervisory authority.
In branches where a board of business is established pursuant to the Act of September 20, 1948 on the organization of the economy, approved revisers or revisers perform the functions provided for in section 15bis of this Act.
Section 15quater, paragraph 2, first and third sentences, and paragraph 3 of the Act are applicable.
They may, with the prior information of the supervisory authority, agree to carry out, at the request and at the expense of the competent authority of the member State of origin of the branch, checks with that branch for the purpose of assisting that authority on matters referred to in Articles 319 and 320, paragraph 2.
§ 3. Approved revisers or approved revisers certify annual accounting information published under section 318, 3°.
CHAPTER V. - Exceptional measures
Art. 327. § 1er. As part of the collaboration referred to in section 320, paragraph 1er, the supervisory authority shall also inform, when it is aware of it, the competent authority of the Member State of origin of what the credit institution having a branch or operating by way of free service delivery in Belgium does not respect, or may not respect, the provisions of the national law of the Member State of origin transposing Directive 2013/36/EU, or Regulation No. 575/2013.
§ 2. If the supervisory authority considers that the competent authority of the Member State of origin has not taken the measures to remedy the situation of non-compliance or risk of non-compliance referred to in paragraph 1er, it may refer to the European Banking Authority and request its assistance in accordance with Article 19 of Regulation No. 1093/2010.
Art. 328. § 1er. Before applying the procedure referred to in Article 327, the supervisory authority may, in an emergency and pending the measures to be taken by the competent authorities of the Member State of origin or the remediation measures taken by the administrative or judicial authorities of that State, and without prejudice to the possibility for the authorities concerned to seize the European Banking Authority pursuant to Article 19 of Regulation No. 1093/2010, take any precautionary measures against
These measures may consist of the measures referred to in Article 236, § 1er, 1°, 2°, 4° and §§ 2 and 3.
§ 2. The control authority shall terminate the measures referred to in paragraph 1er as soon as these are no longer justified. In addition, these measures cease to produce their effects when remediation measures adopted by the administrative or judicial authorities of the Member State of origin produce their effects in the Member State of origin.
§ 3. The European Commission, the European Banking Authority and other relevant authorities are informed of the measures adopted pursuant to paragraph 1er.
Art. 329. § 1er. Without prejudice to Article 327, where the supervisory authority, on the basis of any information provided by the MSDS, has clear and demonstrable reasons for estimating that a credit institution operating under the regime of the free provision of services in Belgium or having a branch in Belgium violates obligations arising out of provisions established pursuant to Directive 2004/39/EC and that such provisions do not confer jurisdiction
If, despite the measures taken by the competent authority of the Member State of origin or because of the inadequacy of these measures, the credit institution concerned continues to act clearly injurious to the interests of investors in Belgium or to the orderly functioning of the markets, the control authority, if applicable at the request of the MSDS, may, after informing the competent authority of the Member State of origin, take or take measures to protect or take measures These include, in respect of branches, measures referred to in Article 236, § 1er, 1°, 2°, 4° and §§ 2 and 3, of the law; in respect of credit institutions operating through the provision of services, these include measures referred to in Article 236, § 1er4° and §§ 2 and 3. The European Commission is informed without delay of the adoption of these measures.
§ 2. Without prejudice to Article 327, where the supervisory authority finds that a credit institution under the law of another Member State operating in Belgium by way of a branch or service provision does not comply with the legal and regulatory provisions applicable in Belgium in the area of competence of the supervisory authority, the credit institution shall, within the time it determines, correct the situation.
When FSMA finds that a credit institution operating under another Member State and operating in Belgium through a branch or service provision does not comply with the legal and regulatory provisions applicable in Belgium in the area of competence of the MSDS, it shall, within the time it determines, correct the credit institution to the situation identified.
If, at the end of the period referred to in paragraph 1er and 2, the situation, the supervisory authority or the FSMA, each in its area of competence, has not been remedied by the competent authority of the member State of origin of the establishment. FSMA maintains the control authority informed of its contacts with the competent authority concerned.
§ 3. In the event of the persistence of the breaches referred to in paragrahe 2 in the head of a branch, the control authority, if any, at the request of the MSDS, may, after having notified the competent authority of the State of origin, take or take appropriate measures, in particular, those provided for in Article 236, § 1er, 1°, 2°, 4°. In this case, Article 236, §§ 2 to 6, is applicable
In the event that the breaches referred to in paragraph 2 persist in the head of a credit institution operating through service delivery, the supervisory authority, if any, at the request of the MSDS, may, after having notified the competent authority referred to in paragraph 2, prohibit the establishment from carrying out new operations in Belgium. It may limit the validity of this prohibition and revoke it, if any, on the basis of Article 236, § 1er4° and §§ 2 and 3. This paragraph is also applicable in the cases referred to in Article 236, § 5.
§ 4. The supervisory authority shall communicate to the European Commission the number and nature of the measures taken pursuant to paragraph 3.
§ 5. The Bank may, at the request of the competent authorities in these matters, apply paragraphs 2 and 3 with respect to a credit institution referred to in Article 312 or Article 313 when it has performed in Belgium acts contrary to the applicable legislative or regulatory provisions for reasons of general interest in matters other than those referred to in Articles 315, § 2 and 317.
§ 6. In the event of an emergency that does not suffer the time limits of the procedure set out in paragraphs 2 and 3, the supervisory authority, if applicable at the request of the MSDS, may take any precautionary measures to protect the interests of depositors, investors and other customers of the branch. It shall inform, without delay, the European Commission and the competent authorities of the Member State of origin of the establishment and the Member States of establishment of other branches. The supervisory authority amends or revokes these measures when the European Commission makes it the injunction in accordance with the rules of European Union law on this matter.
§ 7. The Bank shall inform FSMA of the measures taken pursuant to paragraphs 2 to 6.
FSMA informs the supervisory authority of the measures taken in respect of branches, pursuant to section 36 of the Act of 2 August 2002.
Art. 330. In the event of the cancellation or revocation of the approval of the credit institution by the competent authority of its Member State of origin, the supervisory authority shall, after giving notice to that authority, order the closure of the branch established in Belgium. It may designate a provisional manager who ensures the assets of the branch until it is decided on their destination, and who is authorized to take any interim measures in the interest of creditors.
CHAPTER VI. - Situations where the exercise of activities is carried out in Belgium by an institution under the law of a participating Member State
Art. 331. § 1er. For substances entrusted to the European Central Bank pursuant to Article 4 of the MSU Regulation, in cases where a credit institution under the right of a participating Member State plans to establish a branch in Belgium or to carry out activities in Belgium within the framework of the free provision of services, the provisions relating to procedures between competent authorities and the related competences are not applicable.
§ 2. With regard to the control of a branch or activities carried out in Belgium in the context of the free provision of services in the cases referred to in paragraph 1erthe provisions on cooperation and exchange of information between the competent authorities and Article 330 are not applicable when the European Central Bank is the only competent authority involved.
§ 3. Similarly, where the European Central Bank is the competent authority of a credit institution under the law of a participating Member State with a branch in Belgium, it does not conduct the assessment of that branch for its qualification as a significant branch within the meaning of section 322 of this Act.
CHAPTER VII. - Specialized subsidiaries of establishments
credit under the law of another Member State
Art. 332. Financial institutions subject to the right of another Member State and which meet, in respect of credit institutions under the law of that State and the advice of the competent authorities of that State, the conditions corresponding to those referred to in Article 92, paragraph 1er, as provided for by the national law of the Member State concerned, may apply Chapters Ier to V of this Title.
PART II. - Branches
in Belgium of third country credit institutions
CHAPTER Ier. - Access to activity in Belgium
Art. 333. § 1er. Credit institutions subject to the right of a third country duly accredited in this country must, before opening a branch to operate in Belgium, be accredited to the Bank.
For this purpose:
1° Articles 8, 9, 12, 13 and 15, on the understanding that
- the Bank is exclusively competent to decide on the application for approval,
- the reference to section 9 applies to the credit institution to which the branch reports,
- credit institutions must be allowed in their country of origin to carry out the activities contained in their programme of activities;
2° Article 14, paragraph 1er, the branches referred to in this Title being mentioned in a special section of the list;
3° section 16, on the understanding that section 16 applies to the credit facility under the branch. However, may be approved from branches of institutions with legal personality but not in the form of a commercial corporation;
Article 17, paragraph 1er and 2, the initial capital being replaced by an endowment which the Bank may determine, by regulation made under section 12bis, § 2 of the Act of 22 February 1998, the amount, the constituent elements and the conditions relating to the corresponding assets, particularly from the angle of their location in Belgium;
5° sections 18 to 22, on the understanding that the reference to section 18 applies to the credit establishment of which the branch is located and that the reference to sections 19 to 22 applies to the branch in Belgium;
6° Article 44, to the extent that the credit institution can only establish the commitments of its Belgian branch are covered by a system for the protection of deposits of its country of origin to a minimum equivalent to that resulting from the Belgian deposit protection system with respect to the assets covered and the level of coverage provided.
§ 2. Without prejudice to paragraph 1erthe granting of approval to a branch of a credit institution under the law of a third country is also subject to the following conditions:
1° the credit institution is subject, in its country of origin, to prudential control of a nature equivalent to that organized by Directive 2013/36/EU and Regulation No. 575/2013;
2° the Bank has signed a cooperation agreement with the authority of concerned third countries involving an exchange of information allowing it to exercise effective control of the activities of the Belgian branch. The Bank may derogate from compliance with this condition if, in the case of a species, it considers that it is not likely to substantially improve the knowledge of the credit institution, including the group to which it belongs, from the perspective of its organization and the risks generated by its activities, especially the risks to the creditors of the Belgian branch, including its depositors.
§ 3. Without prejudice to the International Agreements binding on Belgium, the Bank may refuse to accept the branch of a credit institution under the law of a third country that does not grant the same access to its market to Belgian credit institutions.
§ 4. The Bank may refuse the approval of a branch referred to in this Title if it considers that the protection of savers or the sound and prudent management of the establishment or the stability of the financial system requires the establishment of a Belgian legal society. Such a decision may include the following criteria:
- the absence of an effective exercise by the credit institution in the third country, or in the group to which the credit institution belongs, of the activities planned by the branch;
- the importance of the branch to the size of the credit institution.
§ 5. Before deciding on the application for approval of the branch, the Bank shall consult with the authority of the third country concerned.
Art. 334. The Bank shall notify the European Commission, the European Banking Authority and the European Banking Committee of the granting of approval to a branch pursuant to this Title.
CHAPTER II. - Exercise of the activity
Art. 335. § 1er. In addition to the application of section 45 with respect to section 333 and the provisions made applicable under section 333, are applicable:
1st Article 53, on the understanding that the Bank is solely competent;
2° Article 55, § 1erParagraph 1er;
3° Articles 60 and 62 with respect to branch managers;
4° Articles 72, 76, 77, 3° and 4° and 78 on the understanding that for the purposes of section 72, the executives of the branch are considered to be members of the legal organ of administration;
Articles 74, 98, 106 and 107;
6° Article 5 of Appendix IV.
§ 2. The King determines the obligations and terms of publication of the annual accounting situations of the branches.
Art. 336. The credit institution shall have seizedable assets in Belgium for an amount corresponding to the amount of deposits, as referred to in section 382, received by the branch, except to demonstrate that it meets the following conditions:
1° the law of insolvency proceedings of the third country shall ensure to creditors having deposited their assets with the Belgian branch a treatment that is equivalent to that of creditors having deposited their assets with the credit institution in the third country; and
2° in the event of open insolvency proceedings against the establishment of credit in the third country, the law governing this procedure grants to applicants who have deposited their funds with the Belgian branch a rank offering similar protection to that provided for in article 389 of this Act.
CHAPTER III. - Control
Art. 337. Sections 134, 135, 136 and 139 are applicable.
Art. 338. The management of the branches referred to in this Title shall designate one or more approved revisers or one or more approved revisers in accordance with section 220. It may designate a substitute.
In the event of the designation of a reviser company, section 221 is applicable by analogy.
Articles 223, 224, paragraphs 1er 4, 225, paragraphs 1er2, 3 and 6, and 324, § 1erParagraph 2, paragraphs 4 and 5, and § 3, are applicable.
Art. 339. § 1er. The Bank may agree, on the basis of reciprocity, with the authorities of third countries of the credit establishment and with the authorities, competent and third countries, of the other branches of that institution established in other States than Belgium, rules relating to obligations and prohibitions concerning the branch in Belgium, the object and modalities of its monitoring, as well as the modalities of the collaboration and exchange of information with these authorities, as provided for in Articles 22/17 of February 1998.
§ 2. Agreements may, with the approval of the Minister of Finance, derogate from the provisions of this Act with a view to establishing rules and procedures more appropriate to the nature and distribution of the activities of the credit institution and its control.
By means of the existence of a comprehensive control that meets the criteria prescribed by or under this Act, these conventions may exempt from the application of certain provisions of this Act and from the orders and regulations made for its enforcement.
The conventions provided for in this Article shall not include for the benefit of branches that they relate to rules more favourable than those applicable to branches established in Belgium of credit institutions under the law of another Member State.
CHAPTER IV. - Radiation, exceptional measures, sanctions
Art. 340. § 1er. Sections 233, 234, 236 and 238 and sections 345 to 352, provided that the Bank is solely competent.
§ 2. Where the Bank finds that the branch does not operate in accordance with the provisions of this Act and the orders and regulations made for its execution, or that it has elements that indicate that the branch is in the near future likely to no longer operate in accordance with these provisions, the Bank may set limits on the exhibitions of the branch in respect of its parent house or entities of the group that are part of the credit establishment.
§ 3. The Bank may still revoke the approval of a branch referred to in this Title if it considers that the protection of savers or the sound and prudent management of the establishment or the stability of the financial system requires the establishment of a Belgian legal society. The Bank may make use of the criteria referred to in Article 333, § 4.
PART III. - Representation offices
Art. 341. Credit institutions under the law of a foreign State that have not established a branch in Belgium and are planning to establish a representative office, in accordance with the limits set out in article 342, in order to promote their activities as well as the collection and dissemination of information, are required to be registered beforehand by the Bank.
Before registering, the Bank shall consult with the authority in charge of the control of the credit institutions of the State of origin.
Art. 342. A representative office may not exercise banking activity and, in any event, intervene in the conclusion or ongoing conduct of financial transactions or financial services, other than those inherent in the administrative management of the office.
Art. 343. The Bank may be provided with any information, conduct or conduct on-site investigations and be aware of the correspondence and all documents relating to the activities of the representation offices registered in accordance with section 341.
When the Bank found that a representation office does not comply with its obligations, it may revoke its registration.
Art. 344. Belgian law credit institutions that plan to establish a representative office in the territory of a foreign state are required to notify the supervisory authority of their intention. If, in accordance with the rules applicable in that State, the activity of the office may exceed the limits provided for in sections 342 and 343, sections 86 to 89 are applicable. The supervisory authority may be provided with any information relating to the organization, activities and situation of the office and may conduct or control such information. Section 140 is applicable.
LIVRE IV
AND OTHER COERCITIVE MEASURES
Art. 345. Without prejudice to the other measures provided for in this Act, the supervisory authority or the resolution authority, as the case may be, may publish that an establishment of credit, a financial company, a mixed financial company or a mixed company of Belgian or foreign law established in Belgium has not complied with the injunctions that have been made to respect within the time limit that it determines the provisions of this Act or the decrees or regulations taken for its execution or performance of 2013/
In this case, the supervisory authority or the resolution authority, as the case may be, shall at the same time inform the European Authority of the financial markets of such a publication if it is a credit institution providing one or more investment services and/or carrying out one or more investment activities within the meaning of Directive 2004/39/EC.
Art. 346. § 1er. Without prejudice to the other measures provided for in this Act, the supervisory authority may set a time limit for a credit institution, a financial company, a mixed financial company or a mixed company of Belgian or foreign law established in Belgium:
(a) he or she shall comply with the provisions of this Act, the orders or regulations made for his or her execution or Regulation No. 575/2013 or;
(b) he or she must make the necessary adjustments to his or her corporate organization or policy regarding its own fund needs and the management of its liquidity. This injunction is applicable to branches of credit institutions of another Member State only in respect of a breach of one of the obligations referred to in Article 315;
(c) it or it shall comply with the provisions of Title II of Regulation (EU) No. 648/2012 of the European Parliament and of the Council of 4 July 2012 on products derived by means of atonement, central counterparties and central repositories.
§ 2. If the company remains in default at the expiry of the period, the Bank, if any at the request of the European Central Bank, may, the company heard or at the very least summoned, charge it with a maximum amount of 2,500 000 euros per offence and not more than 50,000 euros per day of delay.
§ 3. The amount of the stay is fixed, taking into account in particular
(a) the severity of the deficiencies encountered and, where appropriate, the potential impact of these breaches on the stability of the financial system;
(b) the financial base of the company in question, such as its turnover.
§ 4. The breaches imposed pursuant to paragraph 2 are recovered for the benefit of the Treasury by the Administration of the Cadaster, the Recording and the Domains.
§ 5. When the Bank makes public the measures imposed pursuant to paragraph 2, it shall at the same time inform the European Financial Markets Authority whether it is a credit institution providing one or more investment services and/or carrying out one or more investment activities within the meaning of Directive 2004/39/EC.
LIVRE V
OF SANCTIONS
PART Ier. - Administrative fines
Art. 347. § 1er. without prejudice to any other measures provided for in this Act and without prejudice to the measures provided for by other laws or regulations, the Bank, if any at the request of the European Central Bank, may, when it finds an offence to the provisions of this Act, the measures taken pursuant to it or to Regulation No. 575/2013 or when it finds an infringement of the provisions of Part II of the Central Regulations (EU) No.
§ 2. The amount of the administrative fine imposed on the establishment or company referred to in paragraph 1er, for the same fact or for the same set of facts, is a minimum of 1% and a maximum of 10% of the net annual turnover of the establishment in the previous year.
The amount of the administrative fine imposed on a natural person, for the same fact or for the same set of facts, is at least 5,000 euros and not more than 5,000 euros.
§ 3. Fines imposed by the Bank pursuant to paragraph 1er are recovered for the benefit of the Treasury by the Administration of Cadaster, Recording and Domains.
§ 4. The amount of the fine is determined in particular
(a) the severity and duration of the breaches;
(b) the degree of responsibility of the person involved;
(c) the financial base of the person in question, such as the total turnover of the corporation in question or the annual income of the natural person in question;
(d) any benefits or profits derived from such breaches;
(e) a third party injury due to breaches, to the extent that it may be determined;
(f) the degree of cooperation with the competent authorities shown by the natural or legal person in question;
(g) prior breaches committed by the person in question;
(h) the potential negative impact of breaches on the stability of the financial system.
§ 5. When the Bank makes public the measures imposed in accordance with this Article, it shall at the same time inform the European Financial Markets Authority if it is a credit institution providing one or more investment services and/or carrying out one or more investment activities within the meaning of Directive 2004/39/EC.
PART II. - Criminal sanctions
Art. 348. § 1er. Are punished by imprisonment from one month to one year and a fine of 50 euros to 10,000 euros or only one of these penalties:
(1) those who do not comply with articles 5 or 6;
2° those who exercise the activity of a credit institution referred to in Article 7 or Book III, Title II without the approval of that establishment or when the approval has been terminated or revoked;
3° those who knowingly refrain from making the notifications provided for in Articles 46 and 50, those who pass over to the opposition referred to in Article 48, paragraph 2 or those who pass over to the suspension referred to in Article 54, paragraph 1er, 1° ;
(4) the members of the legal body of administration and other persons referred to in Article 62 who contravene the provisions of this Article;
5° the members of the legal body of administration or the persons in charge of the effective management who contravene sections 72, 77, 2° to 4°, 74, 213, 214 or sections 341 to 344 or section 99 of Regulation No. 575/2013;
6° the members of the legal body of administration or the persons in charge of the effective management of a credit institution who, abroad, open a branch or take services therein without having made the notifications provided for in sections 86 or 90 or that do not comply with section 89;
7° members of the legal body of administration or persons in charge of the effective management of a credit institution that contravene the orders or regulations referred to in Articles 106, 203, § 1er or 318;
8° the members of the legal body of administration or the persons in charge of the effective management of a credit institution that do not comply with Article 106, § 2, paragraph 1erfirst and third sentences and paragraphs 2 and 3;
9° those who perform acts or operations without obtaining the authorization of the Special Commissioner provided for in section 236, § 1er, 1°, or against a decision of suspension made in accordance with Article 236, § 1er4°, which do not comply with the prohibition provided for in Article 329, § 1er, paragraph 2, or § 3 or the precautionary measures provided for in Article 329, § 6, or in the order provided for in Article 330;
10° those knowingly accept funds or values that are disposed of in contravention of section 74;
11° those who, as Commissioner, Certified Reviewer or Independent Expert, have certified, approved or confirmed accounts, annual accounts, results accounts and consolidated accounts of companies or periodic reports or information where the provisions of this Act or the orders and regulations made for its execution or Regulation No. 575/2013 were not complied with, or were not satisfied that they had not been satisfied
12° those who obstruct inspections and audits in the country or abroad or refuse to provide information that they are required to provide under this Act or knowingly provide inaccurate or incomplete information;
14° Directors and managers who do not comply with the provisions of articles 220, paragraph 1er and 2, and 326, § 1erParagraph 1er;
15° persons who contravene Article 79;
16° the members of the legal body of administration or the persons in charge of the effective management of a credit institution that do not comply with the injunctions given by the resolution authority in accordance with Articles 226, § 2, 232, paragraph 2, 3°, 276, § 1er, and 277, 5°, or knowingly communicate to it inaccurate or incomplete information.
§ 2. Any violation of the prohibition imposed by section 20 is punishable by imprisonment from three months to two years and a fine of 1,000 euros to 10,000 euros.
§ 3. A person shall be liable to imprisonment from eight days to three months and to a fine of 50 euros to 10,000 euros or to one of these penalties only, directors, managers or directors who do not comply with the provisions of sections 95 and 99 and the regulations made under section 98.
Art. 349. The provisions of Book Ier the Criminal Code, without exception of Chapter VII and Article 85, shall apply to offences punishable by this Title.
Art. 350. Credit institutions, financial institutions and businesses are civilly liable for fines to which their members of the legal body of administration are convicted, persons in charge of the effective management or agents pursuant to the provisions of this Title.
Art. 351. Any information of the head of offence under this Act or any of the laws referred to in section 20 against members of the legal body of administration, persons in charge of the effective management, agents or commissioners of credit establishments or financial institutions and any information of the head of offence under this Act against any other natural or legal person shall be brought to the attention of the AMF
Any criminal action by the head of the offences referred to in the first paragraph must be brought to the attention of the Bank and the FSMA, each in its area of competence, to the diligence of the Public Prosecutor ' s Office.
Art. 352. The Bank and the MSDS are empowered to intervene in any event before the repressive court that has been charged with an offence punishable by this Act, without having to justify damage.
The intervention follows the rules applicable to the civil party.
LIVRE VI
RULES OF INTERNATIONAL LAW OF MATTERIA AND LIQUIDATION PROCEDURES
PART Ier. - Sanitation measures
CHAPTER Ier. - Rule of jurisdiction
and receipt of foreign measures
Art. 353. Subject to Articles 340 and 358, the Belgian remediation authorities are only competent to adopt remediation measures with respect to the credit institutions referred to in Book II. These measures are implemented and are effective in accordance with Belgian legislation, subject to the details and exceptions provided for in this Act. In particular, the Belgian remediation authorities cannot adopt a remediation measure in respect of a credit institution under the law of another State, including with respect to the branch of such a facility located in Belgium.
Art. 354. Notwithstanding the publicity of which they may be subject in Belgium, the remediation measures decided by the remediation authorities of another Member State concerning a credit institution under the law of that State produce their effects in Belgium according to the legislation of that State as soon as they produce their effects in the Member State where they have been adopted. These measures do not require formality in Belgium.
CHAPTER II. - Concertation and information
Art. 355. The Belgian remediation authorities shall take measures to inform the competent authorities of the other Member States without delay where the credit establishment has a branch or, pursuant to Article 90, shall provide services, their decision to adopt a remediation measure, to the extent possible before the adoption of the branch or, if not, immediately thereafter. The communication of this information, which also focuses on the concrete effects of the remediation measure, is carried out, by all means, by the control authority.
To this end, the resolution authority shall keep the supervisory authority informed of developments in the application of remediation measures within its jurisdiction.
Art. 356. When the Belgian remediation authorities consider it necessary to see the implementation in Belgium of a remediation measure in respect of a credit institution under the law of another Member State, they shall ensure that the competent authority of the Member State concerned is informed. This information is carried out by the control authority.
Art. 357. When the implementation of a remediation measure taken in accordance with Article 353 is likely to affect the rights of third parties in a Member State where the credit institution has a branch or, pursuant to Article 90, provides services, the supervisory authority or, in the case of remediation measures referred to in Book II, Title VIII, the resolution authority shall ensure that a extract of that decision is published in the Official Journal This advertisement is without impact on the effects of the remediation measure, particularly with respect to creditors at the credit institution.
Extract referred to in paragraph 1er mentions, at least in the official languages of the Member States concerned, the following:
1 the object and legal basis of the decision taken;
2° the deadlines for appeal, specifying the expiry date of these deadlines and the contact details of the authority that is aware of the appeal.
The period of appeal for the adoption of a remediation measure shall take place, in respect of third parties having their domicile or habitual residence in another Member State, as soon as the first of the publications intervened in accordance with paragraph 1er.
CHAPTER III. - Branches
third country credit institutions
Art. 358. The Bank shall inform, without delay and by all means, the competent authorities of other Member States where the establishment of credit under the law of a third country also has a branch, its decision to adopt a remediation measure under Article 340 and the concrete effects of that measure, if possible before the adoption of the latter or, if not, immediately thereafter. The Bank strives to coordinate its work with the remediation authorities of credit institutions of other Member States.
PART II. - liquidation procedures
CHAPTER Ier. - Rule of jurisdiction
and receipt of foreign procedures
Art. 359. The Commercial Court is competent to decide on the opening of a bankruptcy only with respect to the credit institutions referred to in Book II. In particular, the Commercial Court cannot open a bankruptcy in respect of a foreign credit institution, including the branch of a foreign credit institution established in Belgium.
Art. 360. The liquidation procedures whose opening is decided by the liquidation authorities of another Member State concerning an establishment of credit under the law of that State are recognized in Belgium without any formality and produce their effects as soon as they produce their effects in the Member State where they have been opened.
CHAPTER II. - Procedures
credit institutions in Belgian law
Section Ire. - Concertation and information
Art. 361. Without prejudice to sections 273 and 378, the Commercial Court shall promptly inform the supervisory authority of its decision to open a bankruptcy procedure and the concrete effects of bankruptcy, if possible before the opening of the bankruptcy or, if not, immediately thereafter. The supervisory authority shall, without delay and by any means, provide such information to the competent authorities of other Member States where the credit establishment has a branch or, pursuant to Article 90, provides services.
Art. 362. The curators or curators designated in accordance with Article 11 of the Bankruptcy Act of 8 August 1997 shall provide the advertisement referred to in Article 38 of the Act, including the publication of the excerpt in the Official Journal of the European Union and in two nationally distributed newspapers of the Member States where the credit institution has a branch or, pursuant to Article 90, provides services.
Art. 363. When the individual warning of creditors referred to in section 62 of the Bankruptcy Act of 8 August 1997 concerns creditors having their domicile or habitual residence in another Member State, the circular also indicates, in addition to the information mentioned in the extract referred to in section 362, the obligation for creditors enjoying a lien or a security right to declare their receivables as well as the consequences related to the failure to comply with the deadlines of 1997.
The circular, written in the language of the procedure, bears the title "Invitation to produce a claim - Timeliness to be respected" in all official languages of the European Economic Area.
Art. 364. The trustee(s) designated in accordance with Article 11 of the Bankruptcy Act of 8 August 1997 shall regularly inform creditors, in the form they consider most appropriate, of the proceedings.
Section II. - Procedural elements - Applicable law
Art. 365. The bankruptcy procedure for a credit institution referred to in Book II is governed by Belgian law, subject to the details and exceptions provided for in this Act.
Art. 366. § 1er. Creditors with their domicile or habitual residence in another Member State may declare their claims and submit their observations in an official language of that State, accompanied by the mention "Production of claims" or "Presentation of claims" in the language of the proceedings in Belgium. A translation of the claim statement and the comments provided may nevertheless be required by the curators. Section 63 of the Bankruptcy Act of 8 August 1997 is applicable.
§ 2. The receivables of creditors with their domicile or habitual residence in another Member State shall be paid the same treatment and, in particular, the same level as the equivalent claims that may be declared by creditors with their domicile or habitual residence in Belgium. To this end, claims submitted by creditors of the same nature are considered equivalent claims.
Paragraph 1er is also applicable with respect to creditors having their domicile or habitual residence in a third country, provided that the law applicable in that State does not permit the commencement of insolvency proceedings against the credit institution concerned and that the procedure opened in Belgium can produce its effects in that State. If not, these creditors are considered to be chemographary creditors for the purposes of the procedure opened in Belgium.
Section III. - Radiation of accreditation
Art. 367. In the event of a bankruptcy against a credit institution, the supervisory authority shall revoke the approval. Section 237 is applicable.
PART III. - Common rules
remediation measures and liquidation procedures
CHAPTER Ier- Voluntary liquidation
or following judicial dissolution
Art. 368. Before making a proposal for dissolution within the meaning of section 181 of the Corporate Code with respect to a credit institution referred to in Book II, the legal authority for the administration of the credit institution shall consult with the supervisory authority.
It may not be decided on a cause of judicial dissolution under the Corporations Code in respect of a credit institution unless the supervisory authority has complied with its advice. The request for notice follows the procedure provided for in Article 378.
The dissolution of a credit institution and the subsequent liquidation within the meaning of the Code of Companies do not hinder the possibility of taking one of the measures provided for in Article 236, § 1er, without the prior fixing of a period required.
CHAPTER II. - Exceptions or temperaments
to the application of the Belgian law as the law of the procedure
Art. 369. By derogation from sections 353 and 365, the effects of a remediation measure or liquidation procedure on:
1° Labour contracts and labour relations are exclusively governed by the law of the Member State applicable to the contract of employment;
2° a contract giving the right to enjoy a real estate or to acquire it is exclusively governed by the law of the Member State in whose territory this building is located. This law determines whether the property is furniture or building;
3° the rights to a real property, a ship or an aircraft that are subject to registration in a public register are governed exclusively by the law of the Member State under the authority of which the register is held;
4° the exercise of property rights on financial instruments or other rights on such instruments whose existence or transfer implies registration in a register, account or centralized deposit system held or located in a Member State shall be governed exclusively by the law of the Member State in which the register, account or centralized deposit system in which these rights are registered;
5° the bilateral or multilateral innovation or compensation conventions and the express resolute conditions they contain to allow compensation are exclusively governed by the law applicable to these conventions;
6° the agreements for transfer-retrocession ("repurchase agreements" - "repos") are governed exclusively by the law applicable to these conventions, without prejudice to the 4th of this article;
7° Transactions in a foreign regulated market within the meaning of Article 2, 6°, of the Act of 2 August 2002 shall be governed exclusively by the law applicable to such transactions, without prejudice to the 4° of this section.
Art. 370. § 1er. The implementation of remediation measures or the opening of a bankruptcy procedure does not affect the real right of a creditor or of a third party to tangible or intangible property, furniture or immovable property - both of the specified property and of the undetermined set of assets whose composition is subject to change - belonging to the credit institution and which are, at the time of the commencement of such measures or of any other procedure
§ 2. The rights referred to in paragraph 1er include:
1° the right to realise or enforce the property and to be disinterested by the product or income of that property, in particular by virtue of a pledge or mortgage;
2° the exclusive right to recover a receivable, in particular under the assignment or assignment of that receivable as a guarantee;
3° the right to claim the property and/or claim restitution in the hands of any person who holds it or enjoys it against the will of the person entitled to it;
4° the real right to perceive the fruits of a good.
§ 3. Is assimilated to a real right, the right, registered in a public register and opposable to third parties, allowing for a real right within the meaning of paragraph 1er.
Art. 371. § 1er. The implementation of remediation measures or the opening of a bankruptcy procedure against a credit institution buying a property does not affect the rights of the seller based on a property reservation, when this property is, at the time of the implementation of such measures or the opening of such a procedure, on the territory of a Member State other than the State of the implementation of such measures or of such a procedure.
§ 2. The implementation of remediation measures or the opening of a bankruptcy procedure against a credit institution having the quality of the seller, after the delivery of the property subject to the sale, does not constitute a cause of resolution or termination of the sale and does not constitute an obstacle to the acquisition by the purchaser of the property sold, when that property is found, at the time of the implementation of such measures or
Art. 372. The implementation of remediation measures or the opening of a bankruptcy procedure does not affect the right of a creditor to invoke compensation for his debt with the debt of the credit institution, where such compensation is permitted by the law applicable to the debt of the credit institution.
Art. 373. § 1er. Without prejudice to Article 369 and subject to Article 374, Articles 370, § 1er371 and 372 do not impede the application of sections 17 to 20 of the Bankruptcy Act of 8 August 1997.
§ 2. Article 1167 of the Civil Code and sections 17 to 20 of the Act of 8 August 1997 are not applicable where the beneficiary of an act referred to in the said provisions demonstrates that the act is subject to the law of a Member State other than Belgian law and that this law does not provide, in this case, any means to challenge this act.
Art. 374. By derogation from Article 236, § 1era member's bank account in a public register, or a member's account in a public register, or a member's account in a public register, or
CHAPTER III. - Sanitation commissioners and liquidators
Section Ire. - Receiving foreign measures and procedures
Art. 375. The appointment of a remediation commissioner or liquidator by an authority of another Member State shall be determined by the presentation of a certified copy in accordance with the original of the decision that appoints it or by any other certificate established by that authority.
Without any legalization or similar formality required, it will nevertheless be established a translation of the document referred to in paragraph 1er in the language or language of the linguistic region in the territory of which the remediation commissioner or liquidator wishes to act.
Art. 376. § 1er. The remediation commissioners and liquidators appointed by an authority of another Member State may exercise in Belgium all the powers they are entitled to exercise in the territory of that other State.
The same applies to persons whom they have designated, in accordance with the law of that State, with a view to assisting or representing them in the course of a remediation or liquidation procedure.
§ 2. In the exercise of their powers in Belgium, remediation commissioners and liquidators referred to in paragraph 1er respect Belgian legislation, in particular with regard to the modalities for the realization of goods and the information of workers. Their powers cannot include the use of force or the right to rule on a dispute or dispute.
§ 3. Sanitation Commissioners and Liquidators referred to in paragraph 1er communicate to the Banque-Carrefour referred to in Article 3 of the Act of 16 January 2003 establishing a Banque-Carrefour des Entreprises, modernization of the register of trade, creation of a registered business window and bearing various provisions, remediation measures and liquidation procedures decided by an authority of another Member State for registration.
Section II. - Commissioners
and Belgian liquidators
Art. 377. The curators or curators designated in accordance with Article 11 of the Act of 8 August 1997 shall take any necessary measures to satisfy the registration of a liquidation procedure in a public register of another Member State made compulsory under the law of that State.
Fees arising from registration in a public register of another Member State are considered to be costs of the proceedings, whether registration is compulsory or is the result of the initiative of the persons referred to in paragraph 1er.
LIVRE VII
MATERIAL LAW ASPECTS
OF LIQUIDATION PROCEDURES
Art. 378. § 1er. Without prejudice to section 273 and except where a credit institution is subject to resolution measures provided for in Book II, Title II, the opening of a bankruptcy procedure or a provisional divestiture within the meaning of section 8 of the Bankruptcy Act of 8 August 1997 against a credit institution may only be pronounced on a notice in accordance with the supervisory authority.
§ 2. The referral of the control authority is written. It is accompanied by the necessary documents for its information.
The supervisory authority shall render its notice within fifteen days of receipt of the notice request. The supervisory authority may, in the case of a credit institution procedure that may present, according to its assessment, significant systemic implications or that requires first coordination with foreign authorities, render its opinion within a longer period of time, without however, the total time limit may not exceed thirty days. When the supervisory authority considers that it is required to make use of this exceptional period, it shall notify the court to decide. The time limit available to the supervisory authority to render its notice suspends the time limit in which the court must decide. In the absence of a response from the supervisory authority within the time limit, the court may decide.
The opinion of the control authority is written. It is transmitted by any means to the Clerk, who gives it to the President of the Commercial Court and to the King's Prosecutor. The notice is placed on file.
Art. 379. The curator(s) referred to in section 27 of the Bankruptcy Act of 8 August 1997 and the assistant persons pursuant to that section 27, paragraph 4, shall be designated on the advice of the supervisory authority.
LIVRE VIII
PROTECTION SYSTEM
Art. 380. Credit institutions established in Belgium must participate in a collective system for the protection of deposits financed by them and to ensure, in the event of a failure of an establishment, compensation for certain categories of depositors who do not have a banking or financial activity.
Paragraph 1er is not applicable to branches of credit institutions under the law of a Member State. It is not more applicable to branches of credit institutions under the law of a third country and whose commitments are covered by a system of protection of deposits of that State to a minimum equal to that resulting from the corresponding Belgian deposit protection system.
The Guarantee Fund manages and operates the deposit protection system.
The Guarantee Fund may conclude with foreign agencies any collaborative agreements.
The Guarantee Fund regularly tests its deposit protection system.
Art. 381. The supervisory authority shall inform the Guarantee Fund when it detects problems that may result in the intervention of this deposit protection system.
Except in cases where bankruptcy has been pronounced, the supervisory authority makes the decision that a Belgian credit institution fails. This finding is made no later than five working days after establishing for the first time that the credit institution has not returned the deposits due and due.
The Guarantee Fund reimburses deposits within twenty business days of the failure of the credit facility. The supervisory authority may decide to extend this period. It can only be granted an extension, not exceeding ten working days. It can only be granted in very exceptional circumstances and for specific cases of failure of credit institutions.
The credit institution fails or, if bankrupt, the curator communicates to the Guarantee Fund the data it needs to refund the deposits. The King may set the rules for the exchange of data between the credit institution or the curator, on the one hand, and the Guarantee Fund, on the other.
If there is any doubt as to the accuracy of the data received by the Guarantee Fund pursuant to paragraph 4, the credit institution or the curator shall verify the data at the request of the Guarantee Fund and transfer it, if any, the corrected data.
Art. 382. The deposit protection system established by the Guarantee Fund provides for the reimbursement, up to 100,000 euros, or the counter-value of this sum, of deposits and vouchers, obligations and other bank securities of nominal, dematerialized or in uncovered deposits, denominated in euro or in currency of member states that have not adopted the euro, such as these deposits and securities are defined,
Art. 383. The King regulates the content of the information to be provided to depositors by credit institutions regarding the coverage of their assets resulting from the aforementioned system.
Art. 384. The Guarantee Fund shall take the necessary measures and arrangements to enable branches of credit institutions under the right of another Member State to participate in the system of protection of deposits of the credit institutions that it establishes, with a view to supplementing, within the limits of that system, the guarantees provided by the system to which the institution adheres in its State.
If the branch that made use of the faculty provided for in paragraph 1er fails to meet its obligations to the deposit protection system in which it participates, the Guarantee Fund, if any in collaboration with the supervisory authority, shall have the authority that has granted the licence to the credit establishment under the branch. In the absence of a correction of the situation within twelve months, the Guarantee Fund may, in the opinion of that authority, exclude the branch after a twelve-month notice. The term deposits prior to exclusion remain covered by the protection system until they are due. Other deposits prior to exclusion remain covered for 12 months. Depositors at the branch are informed, by the branch or, if not, by the control authority, of the termination of the coverage.
LIVRE IX
FINAL PROVISIONS,
MODIFICATIVES, TRANSITOIRS AND ABROGATOIRS
PART Ier. - Final and other provisions
Art. 385. The King may, for the purposes of articles 1er and 5 of this Act, define criteria for determining the public nature of the transactions covered by these provisions.
Art. 386. By deliberately decreed in the Council of Ministers, taken on the advice of the resolution authority, the King may take all necessary measures to establish the financing mechanisms necessary for the effective implementation of the instruments and powers of resolution by the resolution authority.
Art. 387. By deliberately decreed in the Council of Ministers, taken on the advice of the resolution authority, the King may extend the application of all or part of the provisions of Book II, Part II, Chapter VII and Parts IV and VIII to the financial companies and mixed financial companies and determine the terms and conditions of it.
Art. 388. The powers granted to the King by Articles 386 and 387 expire 31 December 2015.
Royal decrees under articles 386 or 387 may amend, supplement, replace or repeal the legal provisions in force.
These orders are repealed in full law when they have not been confirmed by law within 12 months of their publication to the Belgian Monitor.
Art. 389. § 1er. The insured deposits and claims of the Guarantee Fund on a credit institution, principal, interest and accessories, are privileged to the generality of the movable property of that credit facility.
The privilege referred to in paragraph 1er takes place immediately after the privileges referred to in section 19, 4° nies, of the mortgage law of 16 December 1851.
§ 2. For the party that exceeds the level of coverage provided for in section 382, eligible deposits of natural persons and small and medium-sized enterprises are privileged on the generality of the movable property of the credit facility.
The privilege referred to in paragraph 1er takes place immediately after the privilege referred to in paragraph 1er.
For the purposes of paragraph 1ersmall and medium-sized enterprises are enterprises whose annual turnover does not exceed 50 million euros.
PART II. - Amendments
Art. 390. On 4 November 2014, Article 11, § 2 is replaced by the following provision:
"§2. If the Bank does not take into account the ADMSP's opinion on matters referred to in paragraph 1erParagraph 1erin fact, it refers to and mentions the reasons in its decision to refuse the approval or in the draft decision it notify the European Central Bank pursuant to MSU Regulation. The above-mentioned opinion of FSMA relating to paragraph 1 of paragraph 1erParagraph 1er is attached to the notification of the Bank's refusal decision or its draft decision on the application for approval and the final decision adopted by the European Central Bank. ".
Art. 391. On November 4, 2014, section 12 is replaced by the following provision:
"Art. 12. The supervisory authority shall decide on the application for approval within six months of the introduction of a complete file and, at the latest, within twelve months of receipt of the application.
Where the Bank considers that the conditions set out in Section II are met, the Bank shall forward a draft decision to the applicant and the European Central Bank to allow the applicant to make a determination within the time limits referred to in paragraph 1er pursuant to MSU Regulation. The Bank's decision-making project may, with a view to sound and prudent management, provide for accreditation to be accompanied by conditions for the exercise of some of the planned activities.
When it considers that the conditions set out in Section II are not met, the Bank refuses approval.
Without exceeding the time limits referred to in paragraph 1er, the Bank notifies its decision of refusal of approval or the final decision of the European Central Bank within fifteen days by registered letter to the post or with acknowledgement of receipt.".
Art. 392. On November 4, 2014, section 47 of this Act is replaced by the following provision:
"Art. 47. Severely, and in any event within two business days after receipt of the notification and complete information referred to in section 46, and after possible subsequent receipt of the information referred to in paragraph 3, the Bank shall acknowledge receipt in writing to the applicant acquirer. The acknowledgement of receipt indicates the expiry date of the assessment period. The Bank simultaneously informs the European Central Bank.
The assessment period available to the European Central Bank to render its decision on the assessment referred to in paragraph 3 shall be not more than sixty working days from the date of receipt of the notification and all required documents on the basis of the list referred to in Article 46, paragraph 2.
The Bank, as an initiative or as required by the European Central Bank, may, during the assessment period, at the latest on the fiftieth working day of the evaluation period, request additional information necessary to complete the evaluation. This request is made in writing and specifies the necessary additional information. The Bank shall immediately communicate to the European Central Bank the additional information received.
During the period between the date of the Bank's request for information and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. Where applicable at the request of the European Central Bank, the Bank may make, beyond the deadline determined in accordance with the preceding paragraph, other requests to collect additional information or clarifications, but these requests do not, however, result in a suspension of the assessment period.
The Bank may extend the suspension referred to in paragraph 4 to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the recipient candidate is a natural or legal person who is not subject to oversight under directives 2013/36/EU, 2009/65/EC of the European Parliament and the Council of 13 July 2009 coordinating the legislative, regulatory and administrative provisions concerning certain securities collective investment bodies (OPCVM), Directive 2011/61/EU of the European Parliament and Council of 8 June 2011 on alternative investment managers and amending the regulations 2003/41/EC ".
Art. 393. On November 4, 2014, section 48 of this Act is replaced by the following provision:
"Art. 48. In assessing the notification and information referred to in section 46 and the additional information referred to in section 47, the Bank appreciates, in order to ensure a sound and prudent management of the credit establishment referred to in the proposed acquisition and taking into account the likely influence of the acquirer candidate on the credit establishment, the appropriateness of the acquirer candidate and the financial strength of the proposed acquisition by applying all of the criteria referred to in paragraph 2.
The Bank shall, within the course of the assessment period referred to in section 47 and not later than 15 working days before the end of this period, draw the attention of the European Central Bank to a draft decision that is motivated to oppose the completion of the acquisition. The opposition may only be based on reasonable grounds to consider, on the basis of the criteria set out in section 18, paragraph 2, that the prospective acquirer does not present the qualities necessary to ensure sound and prudent management of the credit institution or that the information provided by the applicant acquirer is incomplete.
If the European Central Bank decides, as a result of the Bank's proposal, to oppose the proposed acquisition, it shall notify the applicant in writing within two business days and without exceeding the assessment period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the evaluation period, the European Central Bank did not object to the proposed acquisition, it is deemed to be approved.
The European Central Bank may set a maximum period for the conclusion of the proposed acquisition and, if necessary, extend it.".
Art. 394. On November 4, 2014, section 49 of this Act is replaced by the following provision:
"Art. 49. The Bank shall conduct the assessment referred to in section 48 in close consultation with any other competent authority concerned, or, as the case may be, in consultation with the MSDS, if the applicant acquires:
(a) a credit institution, an insurance company, a reinsurance company, an investment company, an OPCA manager or a collective investment organization management corporation approved under the law of another Member State, or, as the case may be, by the FSMA;
(b) the parent company of a company with one of the qualities referred to in (a);
(c) a natural or legal person controlling a company having one of the qualities referred to in (a).
To this end, the Bank shall, as soon as possible, exchange with these authorities any essential or relevant information for the evaluation. In this context, it shall, upon request, communicate any relevant information and, on its own initiative, any essential information. In the cases referred to in paragraph 1erany draft decision of the Bank mentions any notices or reservations made by the competent authority responsible for the applicant acquirer or, as the case may be, by the MSDS. The decision of the European Central Bank also indicates these same opinions or reservations.".
Art. 395. On November 4, 2014, section 53 of this Act is replaced by the following provision:
"Art. 53. Credit institutions shall communicate to the Bank, as soon as they are aware, the acquisitions or disposition of their securities or shares that make one of the thresholds referred to in section 46.
Similarly, they shall forthwith communicate to the Bank any information that they are aware of and in a manner that influences the situation of their shareholders or associates with respect to the valuation criteria referred to in Article 18, paragraph 2. The same obligation of information lies with the persons referred to in Article 9. The Bank communicates this information to the European Central Bank.
Under the same conditions, they communicate to the Bank, at least once a year, the identity of the shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to the Bank the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Code of Companies in cases where the Articles of Association do not prescribe their declaration to the Bank. ".
Art. 396. On November 4, 2014, section 54 of this Act is replaced by the following provision:
"Art. 54. Where the supervisory authority has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in a credit facility is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, 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; the supervisory authority 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 assignment within the specified time limit, the supervisory authority may order the sequester of the rights of associates to any institution or person it determines. The receiver informs the credit institution that accordingly amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of sound and prudent management of the credit institution and in the interest of the holder of the rights of partners 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 remuneration of the receiver is fixed by the supervisory authority and is borne by the holder mentioned above. The receiver may charge such remuneration on the amounts paid to it as a receiver or by 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 supervisory authority, pronounce 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. 397. On the date of entry into force, in accordance with Article 151 of Directive 2013/36/EU, Articles 40, 41, 43, 49, 50 and 51 of this Directive, Article 157, paragraph 1er, is replaced by the following provision:
§ 1er. Where the competent authorities of another Member State in which a Belgian credit institution has established a branch, or carries out activities referred to in Article 4 within the framework of the free provision of services, inform the supervisory authority that the Belgian legal provisions defined in accordance with Directive 2013/36/EU or Regulation No. 575/2013 are not respected, or that there is a significant risk of non-compliance, the control authority shall take such measures without delay,
The supervisory authority shall forthwith communicate these measures to the competent authority of the host Member State.".
Art. 398. On the date of entry into force, pursuant to Article 151 of Directive 2013/36/EU, Articles 40, 41, 43, 49, 50 and 51 of this Directive, Article 158 is replaced by the following provision:
"Art. 158. § 1er. In order to monitor the activity of institutions carried out in other Member States by way of a branch, the supervisory authority works closely with the competent authority of the host Member State. The supervisory authority shall transmit to the competent authority of the host Member State all information relating to the management and ownership of the relevant credit institutions that may facilitate their monitoring and review of the conditions of their approval, as well as any information that may facilitate their monitoring, in particular with regard to liquidity, creditworthiness, deposit guarantee, limitation of major risks, other factors that may affect the systemic risk
§ 2. The supervisory authority shall forthwith communicate to the competent authority of the host Member State any information and findings relating to the monitoring of liquidity, in accordance with Articles 412 to 414 of Regulation No. 575/2013 and Articles 149, 151, 234, § 2 and Article 8 of Appendix I to this Act, concerning the activities carried out by a Belgian credit institution by way of its branches, to the extent that such information is subject to the protection
§ 3. The supervisory authority shall immediately inform the competent authority of the host Member State that a liquidity crisis has occurred or that it may reasonably be expected to occur. This information also includes detailed information on the planning and implementation of a recovery plan and any prudential monitoring measures taken in this context.
§ 4. At the request of the competent authority of the host Member State, the supervisory authority communicates and explains how the information and findings provided by the first were taken into consideration.
If the supervisory authority opposes the measures to be taken by a competent authority of the host Member State in order to prevent further offences in order to protect the interests of depositors, investors and other persons for whom services are provided, or to preserve the stability of the financial system, it may refer to the European Banking Authority in accordance with Article 19 of Regulation No. 1093/2010.
§ 5. Similarly, the supervisory authority may, pursuant to section 19 of Regulation No. 1093/2010, refer to the European Banking Authority in situations where a request for cooperation, in particular for the exchange of information, has been rejected or has not been implemented within a reasonable period of time. ".
Art. 399. On the date of entry into force, in accordance with Article 151 of Directive 2013/36/EU, Articles 40, 41, 43, 49, 50 and 51 of that Directive, in Article 161, the following amendments are made:
1° in paragraph 1er, first sentence, the words "to facilitate the outcome of a common decision on the designation of a branch as a significant branch under section 159 and the exchange of information" are replaced by the words "to facilitate collaboration under sections 158 and 160";
2° in paragraph 2, the words "that are referred to in Article 156, § 2, and the obligations set out in Article 160" are replaced by the words "that is referred to in Articles 134, § 2 and 156, § 2, and the obligations set out in Article 160".
Art. 400. In section 233, paragraphs 1er and 2, the words "control authority" are replaced by the words "European Central Bank" on November 4, 2014.
Art. 401. In Article 236, § 1er, 6° and § 6, the words "control authority" are replaced by the words "European Central Bank" on the date of 4 November 2014.
Art. 402. In Article 239, § 1er, 1° and § 2, 5°, the words "control authority" are replaced by the words "European Central Bank" on the date of November 4, 2014.
Art. 403. On the date on which, pursuant to Article 151 of Directive 2013/36/EU, Articles 40, 41, 43, 49, 50 and 51 of this Directive come into force, Article 325 is replaced by the following:
"Art. 325. In consultation with the competent authority of the Member State of origin, the supervisory authority may, on a case-by-case basis, carry out on-site inspections and inspections of the activities carried out by the branches referred to in Article 312 and require information on its activities for monitoring purposes, when it considers it relevant to the stability of the financial system in Belgium. After these controls and inspections, the supervisory authority shall communicate to the competent authority of the Member State of origin the information obtained and the established findings that are relevant to the assessment of the risks of the establishment or for the stability of the Belgian financial system. ".
Art. 404. On the date on which, pursuant to Article 151 of Directive 2013/36/EU, Articles 40, 41, 43, 49, 50 and 51 of this Directive come into force, are amended as follows:
1° in section 315, paragraph 2 is repealed:
2° in section 329, paragraph 6 is repealed;
3° in Article 329, § 5, the words "seen to Articles 315, § 2 and 317" are replaced by the words "seen to Article 317";
4° in Article 329, § 7 which becomes paragraph 6, the words "by application of paragraphs 2 to 6" are replaced by the words "by application of paragraphs 2 to 5".
Art. 405. In article 367, the words "control authority" are replaced by the words "European Central Bank" on the date of November 4, 2014.
PART III. - Transitional provisions
Art. 406. The credit institutions registered, on the date of entry into force of this Act, to the list of credit institutions referred to in section 13 of the Act of 22 March 1993 relating to the status and control of credit institutions are of full right to the application of this Act.
Credit institutions under the right of a registered Member State on the lists referred to in articles 65 and 66 of the Act of 22 March 1993 relating to the status and control of credit institutions are registered on the list provided for in articles 312, § 2 and 314.
Representation offices of foreign credit institutions registered under section 85, paragraph 1er of the Act of 22 March 1993 relating to the Status and Control of Credit Institutions are, in full law, registered for the purposes of this Act.
Art. 407. § 1er. Royal Decrees, Bank regulations and any other acts of a regulatory nature adopted pursuant to the Act of 22 March 1993 relating to the Status and Control of Credit Institutions remain applicable to the extent that the provisions of this Act provide for the legal, general or specific authorizations necessary for such regulatory acts and that their content is not contrary to this Act.
§ 2. The authorizations and derogations given by the Bank and any acts of individual scope previously adopted on the basis of the above-mentioned Act of 22 March 1993 relating to the status and control of credit institutions or regulatory acts adopted for its implementation, shall remain in force, except for their revocation or amendment decided in accordance with this Act.
Art. 408. Article 20, § 1er, 3° is applicable only in respect of final administrative fines issued after the coming into force of this Act.
Art. 409. Without prejudice to section 26, credit institutions that have an approval on the day of the coming into force of this Act shall constitute a steering committee meeting sections 24 or 25 for the firster January 2016 at the latest.
Art. 410. The loans, credits or guarantees granted prior to the coming into force of this Act and which are not in accordance with the requirements of section 72, § 2, shall terminate no later than 1er January 2016.
Art. 411. Article 1er Appendix II only applies to benefits provided from 1er January 2014.
Art. 412. For the period from the effective date of this Act to December 31, 2018, section 1er of Appendix IV shall be applicable in the manner specified in this section.
The retention rate of the Category 1 base capital, expressed as a percentage of the total amount of exposure to the risk of a credit institution, calculated in accordance with Article 92, § 3 of Regulation No. 575/2013, is equal to:
1) 0%) for the period from the effective date of this Act to December 31, 2015;
2) 0.625 per cent for the period 1er January 2016 to December 31, 2016;
3) 1.25 per cent for the period 1er January 2017 to December 31, 2017;
4) 1.875 per cent for the period 1er January 2018 to December 31, 2018.
Art. 413. Sections 13 and 14 of Schedule IV come into force on 1er January 2016, subject to the following conditions:
(1) 1er January 2016, credit institutions are required to meet 25% of the requirement established in accordance with Article 13, § 2 of Appendix IV;
(2) 1er January 2017, credit institutions are required to meet 50% of the requirement established in accordance with Article 13, § 2 of Appendix IV;
3) 1er January 2018, credit institutions are required to meet 75% of the requirement established in accordance with Article 13, § 2 of Appendix IV;
4) 1er January 2019, credit institutions are required to meet 100% of the requirement set out in Article 13, § 2 of Appendix IV.
Art. 414. Sections 18 to 20 of Schedule IV come into force on 1er January 2015.
Until 31 December 2014, if the rate referred to in Article 17, § 1er of Schedule IV shall be set or increased to a percentage between 3 and 5 per cent, without exceeding 5 per cent, the Bank shall not finalize the adoption of the regulation referred to in Article 16, § 1er of Appendix IV only if the European Commission adopts an enforcement act authorizing the Bank to take that action.
Art. 415. Legal persons who, on the date of entry into force of this Act, exercise a function as a member of the legal body of administration of a credit institution are authorized to continue the exercise of their current mandate until the expiry of the current term. Until the expiry of the terms referred to in this Article, Article 19, § 1erParagraph 2 shall apply to the permanent representative of the legal person.
Art. 416. The requirement to establish a recovery plan referred to in section 108 must be met within fifteen months of the coming into force of this Act. By exception, credit institutions that have, prior to the coming into force of this Act, already established and communicated a recovery plan to the Bank, have a period of six months from the coming into force of this Act to meet the requirement to establish a recovery plan in accordance with section 108.
Art. 417. The resolution authority shall submit to the Minister of Finance, by December 31, 2015, a report on the status of the establishment of resolution plans and the removal of obstacles to resolvability referred to in sections 226 to 232.
Art. 418. By derogation from section 382, the deposit protection system provides for failures between 1er January 2000 and October 6, 2008, inclusive, a compensation of up to 20,000 euros or the counter-value of that amount and, for failures found no later than December 31, 1999, a compensation of up to 15,000 euros or the counter-value of that amount.
Art. 419. For the purposes of sections 292, 380, 381, 382 and 384 of this Act, the words "Safety Funds" shall be understood to include both the Special Fund for the Protection of Deposits, the Insurance on the Life and Capital of Chartered Cooperatives and the Fund for the Protection of Deposits and Financial Instruments, according to their respective missions provided for by the Royal Decree of November 14, 2008 on the Implementation of the Law of October 15,
Art. 420. In the expectation of the adjustment of the schedule to the annual accounts of the credit institutions, the credit institutions publish, for the 1er July 2014, the following information on a consolidated basis, disaggregated by Member States or third countries in which they are established:
(a) their names, nature of their activities and geographical location;
(b) their turnover;
(c) their number of employees on a full-time equivalent basis.
PART IV. - Abrogatory provision
Art. 421. The Act of 22 March 1993 on the Status and Control of Credit Institutions is repealed.
LIVRE X
BACKGROUND
Art. 422. This Act comes into force on the day of its publication in the Belgian Monitor.
However,
1° to Article 20, § 1er,
(a) at 2°, (i) the words "or articles XV.87, 3°, XV.90, 18° and 19°, XV.91, XV.126 and XV.126/1 of Book XV of the Economic Law Code" come into force on the date of entry into force of the said provisions of the Economic Law Code;
(b) at 2°, (l) the words "or articles XV.87, 2°, XV.90, 1° to 16°, XV.91, XV.126 and XV.126/1 of Book XV of the Economic Law Code" come into force on the date of entry into force of the said provisions of the Economic Law Code;
(c) 3°, (b) comes into force on the date fixed by Royal Decree;
2° Article 62, paragraph 5, 2e sentence and paragraph 6, 2e sentence comes into force on the date of 1er July 2014;
3° Articles 93, 163, 312, § 1erparagraphs 3 and 313, § 2 come into force on 4 November 2014;
4° Articles 157, § 3, 160, §§ 3 and 4, and 162, §§ 3 and 4, 321, 323, 327 and 328 come into force on the date on which, in accordance with Article 151 of Directive 2013/36/EU, Articles 40, 41, 43, 49, 50 and 51 of this Directive come into force;
5° Article 336 comes into force one year after the date of publication of this Act to the Belgian Monitor;
6° Articles 27, 2° and 4°, 29 and 31 come into force on 31 December 2014;
7th the King shall, by order deliberately in the Council of Ministers, establish the date of entry into force of Article 389 and of each of the provisions of Book II, Title VIII;
8° without prejudice to section 413, sections 11 to 15 of Schedule IV come into force on 1er January 2016.
ANNEXES
Annexes to this Act are an integral part of this Act. They are composed of articles. Where reference is made, it is expressly indicated that these are articles of the Annex concerned
Annex Ire
RISK TRAITEMENT
Section Ire. - Credit and counterpart risk
Article 1er. § 1er. Credit institutions are implementing clear procedures for the approval, modification, refinancing and refinancing of credits, and are based on healthy and well-defined criteria.
§ 2. They have internal procedures to assess the risk of credit for exposures on different debtors, securities or positions of securitization, and the risk of credit at the level of their portfolio.
In particular, internal procedures are not based, either exclusively or mechanically, on external notations and take into account relevant debtor information.
§ 3. Credit institutions use appropriate systems for the management and permanent control of various credit portfolios and exposures that result in credit risk. These systems include the detection and management of problematic credits, the implementation of adequate value corrections and the establishment of appropriate provisions.
§ 4. They ensure adequate diversification of their credit portfolios, taking into account their target markets and their overall credit strategy.
§ 5. Credit institutions that are of significant importance are working to develop an internal credit risk assessment competency for the use of approaches based on internal ratings for the calculation of equity requirements for credit risk, as long as the exposures of these institutions are substantial in absolute value and have, at the same time, a high number of significant counterparties.
§ 6. The Bank may specify, by regulation made under Article 12bis, § 2 of the Act of 22 February 1998, the terms and conditions for the application of paragraph 5.
Section II. - Residual risk
Art. 2. Credit risk mitigation techniques, such as taking security rights, used by credit institutions, must be effective and assessed regularly. The use of these techniques must be included in the policy defined under section 57 and be subject to specific written procedures to ensure that they produce the intended effects.
With respect to security rights, procedures must be used to assess its effectiveness and monitor it. These procedures cover at least:
- in the case of security rights, a correct assessment and monitoring of the value of the assets given as collateral, the legal effectiveness of the contractual mechanism used, particularly in relation to the location of the assets concerned;
- in respect of personal security rights, a correct assessment and monitoring of the financial capacity of the guarantor and the legal effectiveness of the contractual mechanism used.
Section III. - Concentration risk
Art. 3. Credit institutions take appropriate measures, including the definition of written policies and procedures, to identify, measure and control the risk of concentration arising from exposure to counterparties.
Paragraph 1er includes:
- risk on central counterparties, groups of counterparties connected to each other or counterparties operating in the same economic sector or region or whose activity is related to the same trade or commodity, as well as
- the risk arising from the use of credit risk mitigation techniques, such as risks associated with indirect exposures to credit risk, including exposure to a single issuer or collateral issuers subject to similar risks.
Section IV. - Risk of securitization
Art. 4. § 1er. Credit institutions ensure that the risks generated by securitization operations in which they act as investor, initiator or sponsor, including reputational risks, including those associated with complex structures or products, are assessed and addressed in appropriate policies and procedures. These are intended to ensure that the economic reality of the operation is fully taken into account in the risk assessment and management decisions.
§ 2. An institution of credit initiating securitization transactions with an early repayment clause for investors must have an adequate liquidity program to deal with the consequences of all repayments, both programmed and anticipated.
Section V. - Market risk
Art. 5. § 1er. Credit institutions implement policies and procedures that identify, measure and manage all significant causes and effects of market risks.
§ 2. They cover against the risk of wrongdoing in cases where a short position expires before the correlative long position.
§ 3. The assessment and control by the credit institution of its own equity needs carried out in accordance with section 94 adequately cover significant market risks not subject to specific legal or regulatory requirements in equity, including the risk associated with incomplete and imperfect coverage of positions on financial instruments.
In accordance with Part III, Part IV, Chapter 2, of Regulation No. 575/2013, a credit institution may compensate its positions on one or more of the financial instruments forming a stock market index with one or more positions in a futures contract on that stock index or with another product derived from that stock market index. In this case, the credit institution is required to dispose of adequate equity funds to cover the risk of losses resulting from a diverging trend between the value of the term contract or the other product and the value of the financial instruments that make up the stock index. It also has adequate equity when it holds opposite sign positions in stock index futures contracts whose maturity and/or composition are not identical.
When using the procedure referred to in section 345 of Regulation No. 575/2013, the establishment ensures that it has sufficient equity to cover the risk of losses that exist between the time of the initial undertaking and the next business day.
§ 4. Credit institutions that are of significant importance are working to develop an internal risk assessment jurisdiction for the use of internal models for the calculation of the requirements of equity for the specific risk associated with the debt securities of the trading portfolio, and for the calculation of the requirements of equity related to the risk of default and the risk of migration of ratings, as long as the exposures of these establishments to the specific risk are substantial in absolute value and that these institutions hold significant positions
§ 5. The Bank may specify, by regulation made under section 12bis, § 2 of the Act of 22 February 1998, the terms and conditions for the application of paragraph 4.
Section VI. - Rate risk
of interest inherent in non-trade portfolio activities
Art. 6. Credit institutions implement systems that enable them to assess and manage the risk arising from possible changes in interest rates affecting their non-negotiating activities.
Section VII. - Operational risk
Art. 7. § 1er. Credit institutions implement policies and procedures that enable them to assess and manage their exposure to operational risks, including the risk of using internal models, and to cover low-frequency events, but whose impact is important. For the purposes of these policies and procedures, they specify what constitutes an operational risk.
§ 2. The establishments define contingency and business continuity plans to demonstrate their ability to limit losses and not interrupt their operations in the event of serious disruption.
Section VIII. - Liquidity risk
Art. 8. § 1er. Credit institutions have appropriate procedures and systems to detect, measure, manage and control liquidity risk over relevant periods, including intra-days, to ensure that adequate liquidity cushions are maintained.
These procedures and systems are specifically tailored to the activities of the credit institution, including branches and legal entities through which it provides its activities, as well as to the currencies involved in its operations, and include adequate mechanisms for the allocation of costs, gains and risks related to liquidity.
§ 2. Procedures and systems referred to in paragraph 1er shall be proportionate to the complexity, risk profile and extent of the activities of the establishment, to the level of risk tolerance established in accordance with section 57 and reflect the importance of the establishment in each State in which it operates.
§ 3. Credit institutions use methods to detect, measure, manage and monitor risks to their funding situation. These methods take into account the current and foreseeable significant cash flows that are related to assets, liabilities and non-balance sheet elements, including those resulting from potential establishment commitments, and the potential impact of reputation risk.
§ 4. Credit institutions distinguish between assets that constitute the base of a security right and non-capped assets that are available at any time, particularly in emergency situations. They take into account the consequences of the entity to which the assets are held, the country in which they are legally registered, whether it is a register or an account, as well as their eligibility for a guarantee. Institutions also monitor how these assets can be mobilized in a timely manner.
§ 5. Credit institutions take into account the legal, regulatory and operational limitations to the potential transfers of liquidity and assets that are not encumbered between entities of the group whose establishment is a party, whether or not these entities are located in a Member State.
§ 6. Credit institutions rely on various liquidity risk mitigation instruments, including a system of specific limits to this risk and liquidity cushions, to be able to cope with different types of crises. They also rely on adequate diversification of the structure and sources of funding. Institutions regularly review these devices.
§ 7. Credit institutions review at least once a year the assumptions underlying their funding decisions. They consider other assumptions than those developed pursuant to paragraphs 1er and 3, related to their liquidity positions and liquidity risk mitigation factors. These other assumptions cover, among other things, non-balance sheet elements and other potential commitments, including those of securitization entities or other special purpose entities, as defined in Regulation No. 575/2013, as long as the credit institution concerned plays a sponsorship role for them or provides significant cash assistance.
Credit institutions consider the potential impact of alternative scenarios on the establishment itself and on the market as well as a combination of these two factors. These alternative scenarios take into account periods of different lengths and crisis conditions of different intensity.
Taking into account the results of the scenarios referred to in paragraph 1er and 2, establishments adapt their strategies, internal policies and liquidity risk limits, and develop appropriate contingency plans.
§ 8. Credit institutions have liquidity recovery plans. These plans establish appropriate strategies and implementation measures to address potential liquidity shortfalls, including branch offices established in other Member States. Establishments are testing these plans at least once a year and are updating them on the basis of the results of the scenarios referred to in paragraph 7.
Institutions take appropriate operational measures in advance to ensure that liquidity recovery plans can, where appropriate, be implemented immediately. These measures may involve the detention of immediately available assets that may be accepted as collateral by a central bank. These may be assets denominated in the currency of another Member State or a third country, in which the establishment is exposed, and which are held, based on operational requirements, on the territory of a host Member State or a third country in respect of the currency in which the establishment is exposed.
Section IX. - Risk of excessive leverage
Art. 9. § 1er. Credit institutions have policies and procedures to detect, manage and control the risk of excessive leverage. Indicators of excessive leverage risk include the lever ratio, as determined in accordance with the methodology set out in section 429 of Regulation No. 575/2013, and maturity asymmetries between the assets and the obligations of the establishment.
§ 2. Institutions take the necessary measures to prevent the risk of excessive leverage, taking into account the possible increase in the leverage ratio resulting from a decrease in equity due to losses expected or realized under the applicable assessment rules. These measures need to be able to cope with different crisis scenarios, under the control of excessive leverage risk.
ANNEX II
REMUNERATION POLICY
Section Ire. - Structure of compensation policy
Article 1er. § 1er. The compensation policy provides an appropriate balance between fixed and variable components of total remuneration. Fixed remuneration represents a significant enough part of total compensation to ensure the exercise of a fully flexible variable compensation policy, including the possibility of paying no variable remuneration.
§ 2. The compensation policy defines the appropriate relationship between fixed and variable components of total remuneration. It provides that the variable remuneration of each individual is, in any case, limited to the highest of the following two amounts:
- 50% of fixed remuneration;
- 50,000 euros, without this amount exceeding that of fixed remuneration.
Section II. - Variable compensation
Art. 2. The total volume of variable remuneration cannot limit the institution's ability to strengthen its own funds.
Art. 3. The total amount of variable remuneration is determined by combining the assessment of the individual's performance and the operating unit concerned with the overall results of the facility.
The evaluation of individual performance takes into account financial and non-financial criteria.
The performance evaluation is part of a multi-year framework to ensure that the evaluation process is focused on long-term performance and that the actual payment of variable remuneration components is for a period that takes into account the duration of the underlying economic cycle of the establishment and its economic risks.
Art. 4. The performance assessment, for the purposes of calculating the variable remuneration of individual or group members, is adjusted according to all types of current and future risks and takes into account the cost of capital and required liquidity.
When assigning variable remuneration components to the institution, it is also taken into account all types of current and future risks.
Art. 5. Any guaranteed variable remuneration is prohibited except, exceptionally, when recruiting new staff members and provided that the establishment has sound and solid capital and is strictly limited to the first year of recruitment.
Art. 6. A portion of not less than 50% of any variable remuneration, including its deferred portion pursuant to Article 7 of this Annex, shall be composed of an appropriate balance between:
1° of shares or shares equivalent to capital, depending on the legal structure of the institution concerned or, if the securities issued by the establishment are not registered in a regulated market, financial instruments related to shares, or equivalent instruments ("non-cash instruments"); and,
2° if possible, other capital instruments that meet the conditions in order to be eligible as additional equity instruments of category 1 or category 2, pursuant to the provisions provided for by or under this Act or Regulation No. 575/2013, or other instruments that may be fully converted into a Class 1 equity instrument or that may be fully amortized and that reflect in any case the appropriate quality of credit.
The instruments referred to in this article are subject to an appropriate detention policy, whereby the holder of the instruments is obliged to retain their property, intended to align the incentives with the long-term interests of the establishment. The control authority may prohibit or subject to restrictions the types of instruments whose characteristics do not meet this requirement.
Art. 7. Payment of at least 40% of the variable remuneration is carried forward for a minimum period of three to five years. This is based on the nature of the institution's activities, its risks and the activities of the person concerned.
When the variable remuneration amount is particularly high, the percentage of the deferred variable remuneration referred to in paragraph 1er must be at least 60%.
The duration of the deferral period shall be determined in accordance with the economic cycle of the establishment, its nature, its risks and the activities of the person concerned.
Art. 8. § 1er. Without prejudice to section 101, the variable remuneration, including the deferred portion, is paid or acquired only if the amount is bearable in view of the financial situation of the establishment as a whole and if justified by the performance of the establishment, operating unit and the person concerned.
§ 2. Without prejudice to the general principles of contract law and labour law, the total variable remuneration of the credit institution is significantly reduced if the establishment produces a reduced or negative financial return.
The reduction referred to in paragraph 1er applies both to variable compensation not yet acquired, to variable remuneration acquired but not yet paid, as well as to that which has already been the subject of an effective payment, including through malus or recovery devices ("clawback").
The total amount of variable remuneration is the subject of a provision of "malus" or "clawback" (recovery clause), especially in situations in which the data subject:
(a) participated in practices that resulted in significant losses to the establishment or were responsible for it;
(b) failed to meet the applicable standards of professional expertise and honourability;
(c) Participated in a particular mechanism to promote tax evasion by third parties.
Section III. - Pensions
Art. 9. The pension policy is consistent with the institution's economic strategy, objectives, values and long-term interests.
If a staff member leaves the pre-retirement institution, the discretionary pension benefits for that member shall be retained by the establishment for a period of five years in the form of instruments referred to in Article 6 of this Annex.
In the case of a staff member who reaches the retirement age, the discretionary pension benefits are paid to him in the form of instruments referred to in Article 6 of this Annex, subject to a five-year detention period.
The provisions of Article 8, § 2 of this Annex shall apply to discretionary pension benefits.
Section IV. - Anti-abuse provisions
Art. 10. The persons referred to in section 67, paragraph 2, shall refrain from carrying out operations, including insurance, that affect, in whole or in part, compliance with the provisions set out in this Annex, in particular operations aimed at or likely to neutralize the risk arising out of the terms of their variable remuneration.
Art. 11. Institutions refrain from awarding or paying variable remuneration through vehicles or methods that facilitate non-compliance with the provisions of this Act or Regulation No. 575/2013.
Section V. - Departure and Entry Allowances
Art. 12. Without prejudice to the Company Code, any severance allowance must be consistent with actual performance over time and is designed so as not to reward failure or irregular behaviour.
In addition, if an agreement provides for a severance allowance that exceeds the 12 months of pay, or the reasoned notice of the compensation committee, exceeds the 18 months of pay, this derogatory clause in respect of severance pay must be approved before the following first ordinary general meeting. Any contrary provision is void of full right. The procedure provided for in Article 554, paragraphs 3 and 4 of the Corporate Code is mutatis mutandis applicable.
Art. 13. Allowances paid at the start-up and intended to compensate for a loss related to the change in credit establishment must be in accordance with the long-term interests of the establishment, including in respect of detention, deferral of payment, performance assessment and recovery devices.
Section VI. - exceptional financial support from public authorities
Sub-section 1re. - Variable Compensation - General Limitation
Art. 14. For the purposes of this Section, exceptional financial support from the public authorities:
1° is presumed, irrefragably, to exist when
- loans granted by the federal State are not yet refunded;
- a guarantee granted by the federal State is not expired or has not been lifted;
2° without prejudice to the 1°, ends when the following conditions are cumulatively met:
- the establishment must not establish a restructuring plan based on the decision of the European Commission, or has fully and correctly complied with such a plan; a restructuring plan being considered to be fully and properly satisfied when the establishment can demonstrate that it has implemented all structural measures (including the sale of participations) and that the restrictions (including the prohibition of taking over from businesses) are no longer applied, with the establishment having further demonstrated that it has complied with its obligations with respect to the planned withdrawal of support from public authorities; and
- the supervisory authority certifies that the establishment complies with the provisions of this Act and the orders and regulations made for its enforcement and Regulation No. 575/2013 with respect to the applicable solvency and liquidity requirements.
Art. 15. In the case of establishments that receive exceptional financial support from the public authorities, the variable remuneration is, without prejudice to section 16 of this Schedule, strictly limited to a percentage of the total benefit of the institution when this remuneration is not compatible with the maintenance of a sound financial base and a timely release of the public assistance program.
Institutions receiving support referred to in paragraph 1er restructure remuneration in a manner consistent with sound risk management and long-term growth, including, where appropriate, limiting the remuneration of members of the legal body of administration and of persons who, in the absence of a steering committee, participate in effective management.
Sub-section 2. - Limitation of the variable remuneration of leaders
Art. 16. In the event of exceptional financial support from the public authorities, no variable remuneration shall be paid, directly or indirectly, to the members of the legal organ of administration of the institution and to the persons who, in the absence of a steering committee, participate in its effective management, except in the case of a person by establishment specifically engaged after the financial support referred to above to in order to contribute to the implementation of the restructuring plan imposed on the institution.
The King, by royal decree deliberated in the Council of Ministers, sets the maximum limits of the permissible variable share within the limits of paragraph 1er. This variable part is further subject to the provisions of Articles 2 to 9 of this Annex.
Subsection 3. - Limitation of severance benefits
Art. 17. A credit institution that receives exceptional financial support from the public authorities is not authorized to award severance benefits to persons referred to in Article 15, paragraph 2 of this Schedule greater than 9 months of fixed remuneration. This allowance is also subject to the provisions of Article 8, § 2 of this Annex in respect of malus devices and recovery clause ("clawback").
Derogation from paragraph 1er, the credit institution may grant a higher severance allowance if the person concerned, prior to the award of the officer's term, in accordance with the existing contractual framework and based on his or her accumulated seniority within the establishment, would have been entitled, in the event of termination, to a notice allowance greater than the severance allowance provided for in paragraph 1erup to the maximum indemnity.
Sub-section 4. - Public character of the provisions
Art. 18. The application of the contractual or other provisions governing the legal relationship between a person referred to in Article 15, paragraph 2 of this Annex and the establishment that are contrary to the provisions of this Section shall be suspended in full law during the full period of exceptional financial support from the public authorities.
In the event of exceptional financial support from the public authorities, the contractual or other provisions governing the legal relationship between a person referred to in Article 15, paragraph 2 of this Annex and the establishment may in no case have a retroactive effect.
Section VII. - Publication and communication
Art. 19. Credit institutions publish their compensation policy in accordance with applicable European law provisions, in particular Article 450 of Regulation No. 575/2013.
Institutions provide the control authority with information published in accordance with paragraph 1er in order to conduct comparative analyses of remuneration trends and practices.
Art. 20. The establishments provide the supervisory authority with information on the number of persons who benefit from the establishment of a pay of at least one million euros per accounting period, by pay of one million euros, including the description of their professional responsibilities, the area of activity concerned and the main elements of pay, including premiums, long-term benefits and pension contributions. This information is transmitted to the European Banking Authority.
ANNEX III
RELATIVE PROVISIONS
A L'EMISSION DE COVERED BONDS
Section Ire. - Characteristics,
allocation and management of coverage assets
Article 1er. For the purposes of sections 79 to 84 and this Annex, the following means:
1° covered bond Belgique, a title de créance, as long as it meets the following criteria:
(a) the title of receivable has been or is issued by a Belgian credit institution that is listed in article 82, § 3, 1°;
(b) the title of receivable or - in the event of issuance under a program - the program of issuance and any title of receivable issued in that framework have been or are listed under section 82, § 3, 2°;
(c) a special heritage is constituted in accordance with Article 3 of this Annex;
2° active coverage, the assets that make up the special heritage in accordance with Article 3, § 2 of this Annex;
3° Belgian gage letter, all covered Belgian bond whose coverage assets meet the conditions determined under Article 2, § 1er of this Annex, and which is registered as such on the list referred to in Article 82, § 3, 2°;
4° representing Belgian covered bond holders, agent, trustee or any other person designated in accordance with Article 14, § 2 of this Annex in order to ensure the interests of Belgian covered bond holders;
5° Portfolio Monitor, the person designated in accordance with section 16 of this Annex;
6° Portfolio Manager, the person designated in accordance with section 8 of this Appendix.
Art. 2. § 1er. In the case of a Belgian pledge letter, the composition and valuation of the coverage assets must ensure the conformity of the Belgian covered bond concerned with the specific conditions provided for by the Belgian and European regulations with regard to requirements in equity, adopted as part of the transposition or execution of the provisions of Directive 2013/36/EU, in order to benefit from a favourable weighting of the Belgian covered bonds issued. In the exercise of the authorization provided for in Article 81, the King is authorized to specify or clarify the criteria to consider that the Belgian covered bonds comply with this regulation.
§ 2. All of the coverage assets of which a special asset is made up must, during the life of the Belgian covered bond, provide sufficient coverage for the reimbursement of the principal and for the payment of interest relating to the Belgian covered bond, to ensure compliance with commitments made with respect to creditors who have been or may be determined in accordance with the conditions for the issuance of the relevant debt title, as well as to make payments related to the management and administration of the assets of the coverage.
To this end, the coverage assets that can be valued according to the valuation criteria determined under section 81, must provide for a surplus, so that their value is greater than the main stock of the Belgian covered bonds they cover. The adequate coverage provided by the coverage assets, including the surplus, must be subject to a periodic assessment, with the issuance of credit required to adapt the coverage asset portfolio to maintain adequate coverage, including the surplus, to the level.
§ 3. The King may set requirements for the minimum level of the surplus, the valuation and adaptation of the cover asset portfolio and the periodic audit of the liquidity position of that portfolio and, where appropriate, specify the requirements under paragraph 2. The fact that, in the exercise of this authorization, the King provides that for the fulfilment of the requirements set out in paragraph 2 and for their valuation, certain coverage assets may only be taken into account in a prorata has no impact on the ownership of the assets concerned with the special heritage of which they belong.
Art. 3. § 1er. The heritage of a credit institution that has emitted Belgian bonds is composed of full right of its general heritage on the one hand, and of one or more special heritages on the other.
§ 2. A special heritage includes:
1° all the movable goods that are registered, in accordance with Article 15, § 2 of this Annex, in the register of the cover assets that is held for one or more Belgian covered bonds determined or, if any, for all Belgian covered bonds issued in the context of an emission program;
2° the values, species or financial instruments, received as collateral in the framework of coverage instruments that are registered as cover assets;
3° all security or personal security rights, guarantees or privileges that, in any form, have been provided in relation to the security assets, as well as the rights relating to insurance and other contracts in relation to the special assets or the management of the special heritage;
4° all amounts held by a credit institution following the recovery (refund, payment) of the assets or the exercise of the rights referred to in 1° or 3° on behalf of the special heritage created in that credit institution or otherwise held on behalf of that special heritage; and
5° the mandatory reserves with the Bank to the extent that they are related to the special heritage.
If amounts referred to in paragraph 1er, 4° are held by the credit institution emittering of Belgian covered bonds on behalf of a special heritage and are not identifiable in the general heritage at the time that the surrender of these assets on behalf of the special heritage is requested, the property right on these amounts included in the special heritage is deferred to other free assets in the general heritage of the credit establishment for an equal value. These assets are then identified in consultation between the Special Heritage Representative (the Portfolio Manager or, if not, the Portfolio Monitor) and the issuing credit institution or, where applicable, the liquidator of the credit establishment, on the basis of the criteria determined under the emission conditions. The credit institution or its liquidator is required to make these replacement assets available to the portfolio manager at the first claim request of the portfolio manager.
Art. 4. Where an establishment of credit assigns assets referred to in Article 80, § 3, 2°, (a), (b), (c) or (d) for the transferee establishment to issue Belgian covered bonds, the special property constituted in the issuing credit institution shall include the amounts held by the establishment that is due to the recovery of the transferred assets or the exercise of the rights referred to in Article 3, §er, 1° and 3° of this Annex on behalf of the special heritage created in the establishment of a transferee credit or otherwise held by the establishment transferring on behalf of this special heritage. If these amounts held on behalf of a special heritage are not identifiable in the property of the transferring institution at the time that the surrender of these assets is requested on behalf of the special heritage, the right of ownership of these amounts included in the special heritage of the transferring establishment is deferred to other assets free of the credit establishment yielding for equal value. These assets are then identified in consultation between the Special Heritage Representative and the transferor credit institution or, where appropriate, the transferor liquidator on the basis of the criteria agreed between the assignor and the assignee under the conditions of issue. The transferor credit institution or its liquidator is required to make these substitute assets available to the transferee credit institution or, where appropriate, the manager of the special heritage portfolio of the assignee establishment at their first claim request.
Art. 5. In the event of the opening of a liquidation procedure of the credit institution emittering of Belgian covered bonds or of the granting establishment referred to in Article 4 of this Annex all amounts and all payments relating to the assets included in a special heritage that are collected by or on behalf of the said special heritage by the credit institution concerned, from the date of the opening of the liquidation procedure, are automatically excluded from the special property affected by The liquidator is required to report these amounts and make them available to the lending establishment or, where appropriate, the portfolio manager at their first claim request.
Art. 6. Subject to paragraphs 5, 6 and 7, each special patrimony shall be assigned exclusively to the fulfilment of the commitments made in respect of (a) the holders of the Belgian covered leaps concerned or, if any, of the Belgian covered leaps issued under the relevant program, as well as in respect of (b) the creditors who have been or may be determined in accordance with the conditions of issue of the Belgian covered leap concerned or the programme concerned.
Subject to the provision provided for in paragraph 7, the exclusive assignment provided for in paragraph 1er prevents the exercise of any right, including seizure, by any other creditor of the issuing credit facility on the special assets of coverage.
The values (species or financial instruments) awarded to the issuing credit institution as part of a coverage operation that constitutes a cover asset can only be used in order to fulfill the obligations related to the special heritage in the circumstances and to the extent that the conditions for the issuance of the relevant Belgian bonds and the agreements entered into in the framework of their program.
The rules of distribution between the commitments referred to in paragraph 1er are determined under the conditions of issuance and contracts entered into as part of the issuance of the Belgian covered bond or the program in question.
Additional commitments may be made in relation to a special heritage to improve its liquidity. The conditions for issuing Belgian covered bonds determine whether these additional commitments are paid by priority or are subordinated to the commitments referred to in paragraph 1er. In the absence of such precision, these additional commitments are paid to a level equal to the commitments referred to in paragraph 1er.
If applicable by derogation from paragraph 1er and subject to contractual provisions that are contrary, the portfolio manager may take his or her remuneration, that of his or her staff, and any other costs related to the exercise of his or her mission, including those generated by his or her subcontractors, to the extent that they have taken advantage of the liquidation of that heritage.
After the closure of a special heritage, a positive balance is in full right part of the general heritage of the issuing credit institution.
Neither the legal assignment provided for in paragraph 1eror any other provision of this Annex shall not affect the general right of recourse available to creditors of the commitments referred to in paragraph 1er on the general heritage of the issuing credit institution, so that these creditors, in order to make their claims honor, can pay on both the general heritage and the special heritage reserved to them.
Art. 7. Until the commencement of a liquidation procedure or, if it is earlier, until the designation of a portfolio manager, the issuer credit institution ensures the management of the special heritage.
The rights and obligations relating to the transactions between the issuing credit institution and the special heritage during the existence of the special heritage and the Belgian covered bonds related thereto are determined in writing as if the special heritage was a separate legal entity.
Art. 8. § 1er. The control authority shall, for any special heritage, designate a portfolio manager:
1° at the time of the adoption of a measure referred to in section 236 against the issuing establishment if this measure, at the discretion of the control authority, is likely to have a negative impact on the Belgian covered bonds in question;
2° in the event of an open liquidation procedure against the issuing establishment;
3° in circumstances where the supervisory authority considers that the assessment of the situation of the issuer's credit institution is likely to seriously jeopardize the interests of the Belgian covered bond holders in question.
The control authority may also designate a portfolio manager in the event of delisting in accordance with section 17 of this Appendix.
§ 2. Upon designation, the portfolio manager shall ensure full management of the special heritage and shall have full right of all necessary or useful powers to ensure such management, including, without any restrictions, all acts of disposition. The portfolio manager exercises this management in order to continue to honour the commitments provided by the conditions for the issuance of Belgian covered bonds. Deeds relating to the special heritage that are laid, after the designation of the portfolio manager, by the issuing credit institution or, on behalf of the latter, by persons other than the portfolio manager, are null and void unless ratified by the portfolio manager.
§ 3. In relations with the issuer credit institution and relations with third parties, starting with the appointment, the portfolio manager:
(a) exercises on behalf of the special heritage real and personal rights and respects the obligations recognized to the special heritage with the same prerogatives as a full legal person;
b) may act on behalf of the special heritage to conclude additional commitments to improve its liquidity.
Art. 9. The King may set more precise rules concerning:
1° the requirements that a person must meet to be designated as a portfolio manager;
2° the specific tasks, competencies and reporting obligations of the portfolio manager, including the decisions for which the portfolio manager must obtain the agreement of the control authority and/or representative of Belgian covered bond holders.
Art. 10. In case of assignment following the adoption of a resolution instrument referred to in Book II, Part VIII, involving a special heritage, the rights of Belgian covered bond holders and other creditors referred to in Article 6, paragraph 1er of this Annex shall be maintained and shall follow the special heritage cover assets.
Art. 11. In the case of a liquidation procedure relating to the establishment of a credit issuer:
1° the procedure in question is limited to the general heritage of the issuing credit institution; the special assets, as well as the commitments and debts covered by them not part of the mass of bankruptcy;
2° the liquidator shall assist the control authority and the portfolio manager in order to enable them to manage the special heritage in accordance with this legislation;
3° the procedure does not prevail over the obligations and debts covered by a special heritage;
4° creditors of commitments and debts covered by a special heritage shall retain their rights in the liquidation procedure pursuant to Article 6, paragraph 8 of this Annex;
5° the portfolio manager may, in the interest of the holders of the Belgian covered bonds concerned, proceed, in consultation with the representative of the Belgian covered bonds holders and with the agreement of the supervisory authority, to the assignment of the special heritage (assets and liabilities) and its management to an institution responsible for the continuation of the obligations with respect to Belgian covered bond holders in accordance with the initial emission conditions;
6° the portfolio manager may, in consultation with the representative of Belgian covered bonds and with the agreement of the supervisory authority, proceed to the liquidation of a special heritage and to the anticipated reimbursement of the Belgian covered bonds concerned if the coverage assets are not or may not be sufficient to meet the obligations related to the Belgian covered bonds concerned;
7° the portfolio manager shall, in consultation with the supervisory authority and the representative of the Belgian covered bond holders, proceed to the partial or total liquidation of the special heritage and to the advance refund if, at a general meeting of the Belgian covered bond holders concerned to which at least two thirds of the principal stock are represented, these holders shall approve, by a simple majority, the liquidation of the special heritage and the advance refund;
8° the liquidator has the right, in consultation with the control authority, to obtain from the portfolio manager the handover to the mass of the cover assets that will no longer, with certainty, be necessary as the cover assets.
Art. 12. § 1er. Belgian credit institutions of covered bonds can subscribe, acquire and retain their own Belgian covered bonds. The Belgian covered bonds thus subscribed or acquired are deprived of the rights provided for in articles 568 to 580 of the Code of Societies and of the rights of a comparable nature provided for in the statutes of the issuing institution for the duration of their detention by the establishment of credit issuer of covered bonds Belgian, except to the extent that this is provided under the conditions of issue.
§ 2. Notwithstanding the opening of a liquidation procedure against it and section 233, the issuing credit institution is authorized to continue, outside of this liquidation procedure, the activities that are necessary or useful to the management by the portfolio manager in order to preserve the interests of the holders of the Belgian covered bonds issued in connection with the special heritage no later than, until all special heritage obligations are fully executed or extinguished.
§ 3. To the extent permitted by the supervisory authority, a credit institution may retain mandatory reserves by special assets to the Bank.
Section II. - Conditions of issuance
Art. 13. The emission conditions, including the various contractual provisions relating to Belgian covered bonds, provide mechanisms that must ensure the reimbursement of the Belgian covered bond within the time limit provided under the conditions of issue. To this end, the King may provide that these mechanisms include at least the periodic audit of the cash reserves (and other liquidities) that will be generated by the coverage assets for a certain period of time, in comparison with the payments to be made, in accordance with the emission conditions, for a certain period of time and the requirements that the issuer credit establishment must provide additional assets if this audit identifies liquidity problems.
Art. 14. § 1er. Sections 568 to 580 of the Code of Companies are applicable to Belgian covered bonds only to the extent that it is not derogated from the conditions of issue.
§ 2. For Belgian covered bond holders that are part of the same program or program, one or more representatives may be designated as long as the emission conditions provide rules for the organization of general assemblies for the Belgian covered bond holders in question. These representatives may, within the limits of the missions entrusted to them, engage all the holders of the Belgian covered bonds of this program or of this program of emission to third parties and they must only justify their competence by production of the act by which they were designated. They may act and represent the holders of the Belgian covered bonds in any liquidation or similar procedure, without revealing the identity of the holders of the Belgian covered bonds.
Representatives of the holders of a Belgian covered bond are designated either before the issuance, by the issuing credit institution, or after the issuance, by the general assembly of the holders of the Belgian covered bonds in question. Their skills are determined under the emission conditions or, if not, by the general assembly of the holders of the Belgian covered bond in question.
The general assembly of the Belgian covered bonds in question may at any time revoke the designation of the representative(s), provided that the designation of one or more other representatives is done simultaneously. The general assembly decides by a simple majority of the Belgian covered bonds represented.
Representatives of the holders of a Belgian covered bond may also be designated for the purpose of acting for other creditors holding debts covered by the cover assets, with the agreement of these creditors and as long as the conditions for issuing the Belgian covered bond concerned provide adequate rules regarding possible conflicts of interest.
Representatives exercise their skills in the exclusive interest of the Belgian covered bond holders and, where appropriate, other creditors they represent, and are required to report to them in accordance with the terms defined in the terms and conditions of issue or, where appropriate, in the designation decision.
Section III. - Special obligations
incombant to the Belgian covered bonds transmitter
Art. 15. § 1er. Any credit institution that has issued Belgian covered bonds must, concerning these Belgian covered bonds:
1° to hold a special administration by special heritage concerning:
(a) securities issued in that category; and
(b) Coverage assets that cover these receivables;
2° comply with specific reporting obligations, which the Bank is empowered to specify the content and form, if any, by regulation made under Article 12bis, § 2 of the Act of 22 February 1998;
3° provide to its auditor-revisor, each portfolio supervisor and each portfolio manager all the necessary collaboration to enable them to carry out the missions that have been devolved to them under this Act, the conditions of issuance and the contracts related to the issuance;
4° periodically demonstrate to the supervisory authority that the category of receivables in question always meets the conditions imposed by or under sections 79 to 81 or by the provisions of this Annex in particular:
(a) reporting on the special administration that it holds in accordance with paragraph 1 above;
(b) providing, in this report, information on coverage assets and their valuation;
(c) if an application, by reporting the result of the verification provided by or under section 13 of this Annex and, where applicable, additional assets provided;
5° be able to demonstrate to the supervisory authority, whenever significant modifications are proposed with respect to a Belgian covered bond, the programme of issuance and the legal documentation concerning the Belgian covered bond or the programme of issuance, that the Belgian covered bonds of the category in question always meet the conditions specified in article 80 § 3;
6° where applicable, take measures to limit exchange and interest rate risks.
§ 2. The special administration includes the holding of a cover asset register for one or more Belgian covered bonds determined or, where applicable, for all Belgian covered bonds issued as part of an emission program, a register in which all inmate coverage assets are registered.
§ 3. The King may set more specific rules on how the special administration referred to in paragraphs 1er and 2 must be held, both in terms of its form and content and in terms of data integrity.
Section IV. - Specific control
Art. 16. § 1er. In accordance with the supervisory authority, the issuing credit institution shall, upon issuance of Belgian covered bonds, designate a portfolio supervisor to report to the supervisory authority on compliance by the issuing credit institution of the legal and regulatory requirements relating to Belgian covered bonds. The costs and remuneration to be paid to the portfolio supervisor are borne by the issuing credit facility.
§ 2. The Portfolio Monitor periodically provides information on:
1° the categories of coverage assets held;
2° the verifications of obligations under Article 15, § 1er of this Annex;
3° the permanent maintenance of the surplus to be respected; and
4° if applicable, additional assets.
§ 3. The King may set more precise rules concerning:
1° the requirements that a person must meet to be designated as a portfolio supervisor;
2° the specific tasks and reporting obligations of the portfolio supervisor.
Art. 17. § 1er. If the supervisory authority finds that a category of debt securities no longer meets the conditions imposed by or under sections 79 to 81 or by the provisions of this Annex or that the issuer credit institution concerned no longer meets the specific obligations that are applicable to it as a credit institution issuer of covered Belgian bonds, it sets the time limit in which it must be remedied to the situation noted. If, at the end of this period, the situation has not been corrected, the supervisory authority may, without prejudice to the other measures referred to in Articles 234 to 236, proceed to the delisting of the issuing credit facility from the list referred to in Article 82, § 3, 1°.
In the event of an extreme emergency, the supervisory authority may proceed to the delisting of credit from the list referred to in section 82, § 3, 1° without prior adjustment.
§ 2. If the supervisory authority conducts such a radiation, it shall forthwith communicate it to the European Commission and the European Banking Authority and shall report it immediately on its website. This radiation does not affect the rights of the holders of the Belgian covered bonds emitted by the establishment thus removed. After the delisting, any new issue of Belgian covered bonds requires that it be resatisfied with all the conditions provided for this purpose, including those to which the registration is subordinated on the list of issuer credit institutions.
ANNEX IV
CONSERVATION COUSIN FOR CATEGORIA 1 BASIC PROPRES AND MACROPRUDENTIAL POLICY INSTRUMENTS
CHAPTER Ier. - Conservation cushion
Category 1 core funds
Article 1er. The custodial cushion for Class 1 equity in a credit institution is 2.5% of the total amount of its risk exposure, as calculated in accordance with section 92, paragraph 3 of Regulation No. 575/2013.
CHAPTER II. - Macroprudential policy instruments
Art. 2. For the purposes of this chapter, a designated authority shall mean, within a Member State or a third country, the authority authorized to set the base base fund cushion of category 1 countercyclical and/or the base fund cushion of category 1 for the establishment of systemic credit and/or the base fund cushion of category 1 for systemic or macroprudential risk, whether or not that authority is competent to
Section Ire. - Baseline sequester
specific to a credit facility
Art. 3. For the purpose of calculating the requirement of a clean fund cushion referred to in this section, the relevant credit risk exposures are those of the different categories referred to in section 112 of Regulation No. 575/2013, with the exception of its points (a) to (f), and are subject to:
1° to the requirements of regulatory equity for credit risk under Part 3, Part II, of the Regulations;
2° if the exposure is held in the trading portfolio, the requirements of regulatory equity for specific risk, under Part III, Part IV, Chapter 2, of Regulation No. 575/2013, or for additional default and migration risks, under Part III, Part IV, Chapter 5 of this Regulation;
3° if the exposure corresponds to securitization, to the requirements of regulatory equity imposed by the third Part, Part II, Chapter 5 of Regulation No. 575/2013.
Calculation of the clean fund cushion requirement referred to in paragraph 1er depends, inter alia, on the geographic location of the relevant credit risk exposures, which is determined in accordance with the technical standards adopted by the European Commission pursuant to Article 140, paragraph 7 of Directive 2013/36/EU.
Art. 4. § 1er. The base base fund cushion of category 1 countercyclical of a credit institution is equal to the total amount of the exposure to the risk of that establishment, calculated in accordance with section 92, paragraph 3 of Regulation No. 575/2013, multiplied by the base base fund cushion rate of category 1 countercyclical specific to that establishment.
This rate is equal to the weighted average of the contraceptive cushion rates that are applied in the territories where the relevant credit risk exposures are located.
§ 2. For the calculation of the weighted average of the base base base base base base fund cushion rates of category 1 contracyclic referred to in paragraph 1er, paragraph 2, credit institutions multiplie each of the applicable countercyclical cushion rates, in accordance with section 6 of this Annex, by the total amount of their requirements in regulatory equity covering their exposures to the relevant credit risk in the territory concerned, determined in accordance with Part III, Part II, of Regulation No. 575/2013, and divide the result obtained by the total amount of their requirements into regulatory equity covering the entirety of their exposures to the risk of
Art. 5. § 1er. For exposures to credit risk relevant to counterparties established in Belgian territory, the rate of countercyclical cushion referred to in Article 4, § 2 of this Annex is the rate of countercyclical cushion set by the Bank.
§ 2. The Bank sets this rate on a quarterly basis based on one or more benchmark indicators reflecting the credit cycle and the risks associated with excessive credit growth in Belgium that take into account the specificities of the national economy. These indicators are based on the difference, in terms of its long-term trend, of the ratio between the volume of credits granted on Belgian territory and the gross domestic product, including:
(a) the growth of credit volumes granted in Belgian territory and the evolution of gross domestic product;
(b) the guidance and recommendations of the ERTC;
c) any other variable that the Bank considers relevant in this case to address the cyclical systemic risk.
§ 3. The rate of countercyclical cushion set by the Bank, expressed as a percentage of the total amount of exposures to credit risk relevant to Belgian territory, must be within a range of 0 per cent to 2.5 per cent, calibrated by 0.25 percentage point or multiple of 0.25 percentage point. When it considers it necessary on the basis of the variables referred to in paragraph 2, the Bank may set a contraceptive cushion rate greater than 2.5%.
§ 4. For the calculation of the weighted average referred to in Article 3, § 2 of this Annex, credit institutions shall apply the rate referred to in paragraph 1er from the date fixed by the Bank. Unless exceptional circumstances warranting a shorter period of time, the date shall be no later than twelve months after the date on which an increase in the rate was announced in accordance with paragraph 6.
§ 5. When the Bank reduces the rate of constraint, institutions can apply the new rate without delay. As an indication, the Bank announces a period during which no increase in this rate is expected.
§ 6. The Bank makes publicly available, by way of publication on its website, the base base base base rate of compensatory category 1 funds that it sets for one quarter, indicating the following information:
(a) the applicable rate;
(b) the ratio of "credits to gross domestic product" and the difference between that ratio and its long-term trend;
(c) the justification for the selected rate, including the benchmark indicators that the Bank has taken into account in setting the rate;
(d) where the rate is increased, the date on which credit institutions are required to apply this rate for the calculation of the weighted average of the countercyclic cushion rates referred to in Article 3, § 1erparagraph 2 of this Annex;
(e) exceptional circumstances, if any, justifying that the date referred to in paragraph (d) is less than twelve months after the publication made under this paragraph;
(f) where the rate is reduced, the justification for the indicative period during which no recovery is expected.
§ 7. The Bank shall take all reasonable measures to coordinate, with the European authorities and the designated authorities of the Member States, decisions concerning the fixation of the contraceptive rate referred to in paragraph 1er.
The Bank communicates the contraceptive cushion rate that is fixed each quarter, as well as the information referred to in paragraph 6, to the CERS.
Art. 6. Credit institutions calculate the weighted average of the countercyclic cushion rates referred to in Article 4, § 1er, paragraph 2 of this Annex on the basis of the rates of countercyclical cushion published respectively by the Bank in accordance with Article 5, § 6 of this Annex, and by the designated authorities of the various Member States or third countries in whose territory the relevant credit risk exposures are located, in accordance with Articles 7 to 10 of this Annex.
Art. 7. § 1er. A countercyclic cushion rate established for exposures to the relevant credit risk in the territory of a Member State is applicable to the date specified by the designated authority of that State.
§ 2. When a designated authority of a Member State sets a contraceptive cushion rate greater than 2.5%, credit institutions use it to calculate the weighted average of the Class 1 countercyclic equity cushion rate, provided that the rate above 2.5% is recognized by the Bank.
§ 3. The Bank announces recognition of a rate above 2.5% on its website. This announcement contains at least the following information:
(a) the recognized rate and the member State concerned;
(b) the date on which credit institutions are required to apply this rate for the calculation of the weighted average of the countercyclic cushion rates referred to in Article 4, § 1erparagraph 2 of this Annex;
(c) the exceptional circumstances, if any, justifying that the date referred to in paragraph (b) is less than twelve months after the date of the Bank's announcement under this paragraph.
Art. 8. When a designated authority of a Member State referred to in Article 5 of this Annex sets a contraceptive cushion rate greater than 2.5%, and the Bank does not recognize this rate, credit institutions use a rate of 2.5% to calculate the weighted average of the Class 1 countercyclic equity cushion rate.
This requirement to use a rate of 2.5% is applicable to the date specified by the designated authority whose rate has not been the subject of recognition referred to in paragraph 1er.
Art. 9. When a designated authority of a Member State reduces the applicable rate of contraceptive cushion, this reduction is immediately applicable.
Art. 10. § 1er. The decision to set a rate of countercyclical cushion for a third country is applicable twelve months after the date on which the designated authority of that country announced that it set the applicable rate, even if that authority imposes on the credit institutions under the law that country to apply this amendment within a shorter period of time. A change in the rate of contraceptive cushion for a third country is deemed to be announced on the date it is published by the designated authority of that country.
§ 2. Where the rate established by the designated authority of the third country is greater than 2.5%, Articles 7, §§ 2 and 3, and 8 of this Annex shall apply by analogy. The Bank may, however, set another rate that exceeds 2.5 per cent, while remaining below that published by the designated authority of the third country.
§ 3. If no countercyclic cushion rate has been published by the designated authority of a third country in the territory of which the relevant credit risk exposures are located, the Bank may set this rate.
§ 4. If it has reasonable grounds to consider that the rate published by the designated authority of a third country is not sufficient to adequately protect credit institutions against the risks of excessive credit growth in that country, the Bank may set a countercyclical rate higher than the rate published by the authority of the third country concerned.
§ 5. For the purposes of paragraphs 2 to 4, the Bank takes into account the recommendations issued by the CERS.
§ 6. When the Bank decides on a countercyclical cushion rate for a third country in accordance with paragraphs 2 to 4, it decides on the date on which credit institutions are required to apply this rate for the calculation of the weighted average of the countercyclic cushion rate. This date occurs no later than twelve months after the date on which the Bank has pronounced itself, except in exceptional circumstances justifying a shorter period of time.
§ 7. When a designated authority of a third country reduces the applicable contraceptive cushion rate, this reduction is immediately applicable.
§ 8. The Bank publishes the following information on its website for each of the countercyclical cushion rates on which it has pronounced itself for third countries, in accordance with paragraphs 2 to 4:
(a) the applicable rate and the third country concerned;
(b) if the Bank has amended the rate initially set by the designated authority of the third country, the rationale for the rate as amended;
(c) the date on which credit institutions are required to apply the relevant rate for the calculation of the weighted average of the countercyclic cushion rates referred to in Article 4, § 1erparagraph 2 of this Annex;
(d) the justification for the decrease in the time limit for entry under the said rate, if the date referred to in point (c) is less than twelve months after the date of the Bank's announcement under this paragraph.
Section II. - Coussin
for systemic credit institutions
Art. 11. For this Section:
a) by "EISm"a global systemic credit institution;
(b) by "domestic EIS", a domestic systemic credit institution.
Art. 12. The Bank qualifies as "dominant EIS" or "EIS"m", credit institutions whose default would have a major impact on Belgium and the market and economy of one or more member states respectively, and on the global financial market.
An EISm cannot be a subsidiary of a company under the law of a Member State, having the status of a parent credit institution, a parent financial company or a parent joint financial company.
Art. 13. § 1er. The Bank defines, by regulation made under Article 12bis, § 2 of the Act of 22 February 1998, the methodology used to assess whether a credit institution referred to in Article 12 of this Annex must be qualified as EISmbased on the following criteria:
(a) the size of the establishment concerned on a consolidated basis;
(b) the correlation between the global financial system and the credit institution or, where appropriate, the parent group;
(c) the ability to substitute the services or financial infrastructure provided by the credit institution and its group;
(d) the complexity of the credit institution and its group;
e) the importance of cross-border activities of the institution and its group.
Each criterion receives equal weighting and is assessed on the basis of quantifiable indicators. The methodology used allows to produce a global score for each EISm and, on this basis, affect each EISm in a subcategory. EIS subcategoriesm and the thresholds are defined by complying, in addition to Directive 2013/36/EU, the technical standards of the European Banking Authority.
§ 2. The amount of the Category 1 base fund cushion for EISm depends on the subcategory to which the EISm is within a range of 1% to 3.5% of the total amount of exposure to the risk of the establishment concerned, calculated in accordance with section 92, paragraph 3, of Regulation No. 575/2013.
§ 3. The Bank may adjust the overall score obtained under paragraph 1er if it is of the opinion that it does not reflect the systemic importance of the enterprise concerned and
(a) affect an EISm, whose overall score is less than the lowest subcategory threshold, this subcategory or a higher subcategory. In this case, the Bank informs the European Bank Authority of its decision and motivation;
(b) Reassign an EISm a subcategory below a higher subcategory.
§ 4. An EISm meets the Category 1 base equity cushion requirement for EISm on a consolidated basis.
Art. 14. § 1er. The Bank defines, by way of regulation made pursuant to Article 12bis, § 2 of the Act of 22 February 1998, the methodology used to assess whether a company referred to in Article 12 of this Annex must be classified as EIS on the basis of the following criteria:
(a) its size, if any on a consolidated basis;
(b) its importance to the Belgian economy or one or more member States;
(c) the importance of its cross-border activities;
(d) its correlation or that of its group with the financial system.
The regulation takes into account the guidelines established by the European Banking Authority regarding the criteria set out in this paragraph.
§ 2. The Bank defines, by way of regulation made under Article 12bis, § 2 of the Act of 22 February 1998, the methodology used to determine the amount of the Class 1 core fund cushion that a qualified company of domestic EIS must hold. This amount cannot exceed 2% of the total amount of risk exposure calculated in accordance with section 92, paragraph 3 of Regulation No. 575/2013.
§ 3. When requiring a domestic EIS cushion in accordance with the methodology referred to in paragraph 2, the Bank follows the following principles:
(a) the domestic EIS cushion requirement may not result in disproportionate negative effects for all or part of the financial system in other Member States or in the European Union as a whole, forming or creating an obstacle to the functioning of the domestic market;
(b) the domestic EIS cushion requirement is reviewed at least once a year.
§ 4. The Bank shall communicate to the European Commission, to the European Banking Authority, to the CERS and, where appropriate, to the competent authorities of the Member States concerned, the decision to fix or amend the requirement of the base capital cushion of category 1 for domestic EIS one month before the date on which this requirement is mandatory. The communication includes a detailed description of the following:
(a) the reasons why the domestic EIS cushion is likely to be effective and proportionate to mitigate the systemic risk posed by this type of enterprise;
(b) The Bank’s planned domestic EIS cushion rate;
(c) an assessment of the likely positive or negative impact of the domestic EIS cushion on the domestic market, based on information available to the Bank.
§ 5. A domestic EIS that is a subsidiary of an EISm or a domestic EIS under the law of a Member State, itself subject to a Class 1 own fund cushion for EISm or domestic EIS, is required at the individual or sub-consolidated level to meet only the highest requirement between
(a) 1 per cent; and
(b) the base base level 1 fund cushion rate for EISm or domestic EIS applicable at the consolidated level to its parent company under the law of a Member State, provided that this rate does not exceed the percentage provided for in paragraph 2. It shall be taken into account, if any, the application of specific rules in the Member State to which the parent company is located, when an establishment is both subject to a requirement of Class 1 own fund cushion for EISm or domestic EIS and for systemic or macroprudential risk.
Art. 15. The Bank sets out the list of domestic EIS and the list of EISm, the latter comprising the subcategory to which each EIS is assignedm. The Bank publishes these lists on its website. The lists and changes therein are sent to the CERS, the European Banking Authority and the European Commission.
The Bank reviews the EIS census once a yearm and domestic EIS as well as the allocation of EISm in the corresponding subcategories. It communicates the result to the institution concerned, the CERS, the European Banking Authority and the European Commission and makes the updating of the lists referred to in paragraph 1er on his website.
Section III. - Own fund cushion
Category 1 baseline for systemic or macroprudential risk
Art. 16. § 1er. The Bank may, by a regulation made pursuant to Article 12bis, § 2 of the Act of 22 February 1998, require that credit institutions have a Class 1 core fund cushion to anticipate or mitigate the impact of non-cyclical systemic or macroprudential risks in the long term, which are not covered by Regulation No. 575/2013. These systemic or macroprudential risks consist of the structural risks of disruption of the financial system that could have a serious impact on the stability of the financial system and the real economy in Belgium. The Regulations adopted by the Bank pursuant to this paragraph shall comply with the requirements set out in paragraphs 2 to 5 and 17 to 22 of this Annex.
§ 2. The amount of the base Category 1 fund cushion for systemic or macroprudential risk established pursuant to paragraph 1erequals, at a minimum, 1% of the total amount of exposure to the risk of credit institutions, calculated in accordance with section 92, paragraph 3 of Regulation No. 575/2013. This percentage can only be increased progressively by 0.5 per cent.
§ 3. The Bank may decide that the Category 1 base equity cushion requirement for systemic or macroprudential risk applies, on an individual basis and/or on a consolidated basis, to all credit institutions or to one or more subset of credit institutions, grouped under similar activity or risk profile criteria.
§ 4. When adopting the regulation referred to in paragraph 1er, the Bank may limit the requirement of Class 1 base equity cushion for systemic or macroprudential risk to cover risk exposures located in Belgium, other Member States or in third countries, where the systemic or macroprudential risk is circumscribed to these exposures. The provisions of Article 96, §§ 4 to 6 and Articles 17 to 22 of this Annex shall apply. In this case, the total amount of exposure to the risk of the credit establishment referred to in paragraph 2 is limited to the risk exposures located on the territory(s) concerned.
§ 5. The Bank also adheres to the following principles:
(a) the Class 1 core fund cushion for systemic or macroprudential risk shall not cause disproportionate negative effects to any or part of the financial system of other Member States or the European Union as a whole or constitute an obstacle to the effective functioning of the domestic market;
(b) the level of the Class 1 core fund cushion for systemic or macroprudential risk is reviewed at least every two years.
Art. 17. § 1er. Before bringing the Category 1 base equity cushion requirement for systemic or macroprudential risk to a maximum rate of up to 3%, the Bank notifies its draft regulation referred to in Article 16, § 1er of this Annex to the European Commission, the European Banking Authority and the CERS. The same applies to the designated authorities of the Member States or other concerned third countries.
The notification includes a detailed description:
(a) systemic or macroprudential risk in Belgium referred to in paragraph 1er;
(b) reasons why the magnitude of this systemic or macroprudential risk poses a threat to the stability of the national financial system;
(c) the base level of Class 1 equity cushion for the systemic or macroprudential risk that the Bank intends to establish.
(d) the reasons why the Class 1 core fund cushion for systemic or macroprudential risk is a measure deemed effective and proportionate to mitigate the risk intensity;
(e) an assessment of the positive or negative impact of the Class 1 base equity cushion for systemic or macroprudential risk on the domestic market, based on information available to the Bank;
(f) reasons why none of the measures provided for by or under this Act or by Regulation No. 575/2013, excluding sections 458 and 459, taken in isolation or in a combined manner, would adequately address the macroprudential or systemic risk identified.
§ 2. The Bank may make the publication referred to in Article 21 of this Annex one month after the notifications referred to in paragraph 1er.
§ 3. When the requirement for a Class 1 base equity cushion for systemic or macroprudential risk is fixed by the Bank on the basis of risk exposures in another Member State, this requirement covers all risk exposures in other Member States.
Art. 18. In case the rate referred to in Article 17, § 1er of this Annex shall be increased to a percentage between 3% and 5%, the Bank shall not finalize the adoption of the regulation referred to in Article 16, § 1er of this Annex only after receiving the opinion of the European Commission. If the Bank fails to comply with this notice, the Bank explains the reasons in its regulation.
Art. 19. When the base base class 1 fund cushion rate for the systemic or macroprudential risk referred to in Article 17, § 1er of this Annex shall be between 3% and 5% and the said cushion shall apply to a credit institution whose parent company is under the right of another Member State, the notification referred to in Article 17, § 1er of this Annex is also addressed to the designated authorities of that State or in charge of the supervision of the parent company concerned.
In the event of a negative recommendation by the European Commission and the CERS or disagreement by the authorities referred to in paragraph 1er, the Bank may refer to the European Banking Authority and request mediation in accordance with Article 19 of Regulation No. 1093/2010. The Bank's decision is suspended until the decision of the European Banking Authority.
Art. 20. In case the rate referred to in Article 17, § 1er of this Annex shall be increased to a percentage between 3% and 5% and shall relate to risk exposures in another Member State, the Bank shall not finalize the adoption of the regulation referred to in Article 16, § 1er of this Annex only if the European Commission adopts an enforcement act authorizing the Bank to take this measure. The same is true if the rate referred to in Article 17, § 1er of this Annex shall be increased to a percentage greater than 5%.
Art. 21. The Bank publishes on its website the regulation referred to in Article 16, § 1er of this Annex. This publication contains the following information:
(a) the base base level of category 1 equity cushion for systemic or macroprudential risk;
(b) justification for this rate;
(c) the date on which credit institutions are to apply this rate;
(d) credit institutions to which the Class 1 base equity cushion applies for systemic or macroprudential risk, except where the Bank considers that such publication is likely to disrupt the stability of the financial system;
(e) third countries for which the risk exposures located therein are taken into account in the Class 1 core fund cushion for systemic or macroprudential risk and/or all Member States where such exposures are located in a Member State;
(f) where applicable, the opinion of the European Commission and the reasons why the Bank did not comply with this notice.
Art. 22. § 1er. Where the Bank introduces a Class 1 base equity cushion requirement for systemic or macroprudential risk, pursuant to sections 16 to 21 of this Annex, the Bank may request the CERS to make, pursuant to section 16 of Regulation No. 1092/2010, a recommendation to one or more Member States likely to recognize the cushion for systemic or macroprudential risk relating to exposures to the risk of credit institutions under the law of those States, located in Belgium.
§ 2. By a regulation made pursuant to Article 12bis, § 2 of the Act of 22 February 1998, the Bank may recognize the cushion rate for the systemic or macroprudential risk fixed by a designated authority of another Member State for risk exposures located in the territory of that State. This recognition confers a mandatory character to this rate, for the purpose of the cushion requirement for systemic or macroprudential risk applicable to credit institutions with such exposures.
The Bank shall notify the recognition referred to in paragraph 1er the European Commission, the European Banking Authority, the CERS and the designated authority of the Member State concerned.
§ 3. When deciding whether or not to recognize the cushion rate for systemic or macroprudential risk pursuant to paragraph 2, the Bank shall consider the information that the designated authority of the Member State concerned has notified in accordance with Directive 2013/36/EU.
Annex V
RESTRICTIONS ON DISTRIBUTIONS
Section Ire. - Calculation of maximum distribuable amount (MMD)
Article 1er. § 1er. Establishments calculate their maximum distribuable amount (MDM) by multiplying the amount obtained in accordance with paragraph 2 by the factor determined in accordance with paragraph 3. The execution of any operation referred to in section 101, following this calculation, reduces the MMD from the corresponding amount.
§ 2. The amount to be multiplied in accordance with paragraph 1er is composed of:
(a) intermediate benefits not included in the Category 1 core funds in accordance with section 26, paragraph 2, of Regulation No. 575/2013, made since the last decision to distribute profits or since the execution of the last of the transactions referred to in section 101;
more
(b) the end-of-year benefits not included in the Category 1 core funds in accordance with section 26, paragraph 2, of Regulation No. 575/2013, made since the last decision for the distribution of profits or since the execution of the last of the transactions referred to in section 101;
less
(c) amounts that would be payable under the tax on the elements referred to in paragraphs (a) and (b) of this paragraph.
§ 3. The factor is determined as follows:
(a) the factor is zero where the amount of the establishment's Class 1 equity base funds that are not used to meet the requirement of equity imposed by section 92, paragraph 1er, point (c) of Regulation No. 575/2013, expressed as a percentage of the total amount of exposure to the risk calculated in accordance with section 92, paragraph 3 of that Regulation, is in the first quarter of the overall requirement of Class 1 clean fund cushion;
(b) the factor is 0.2 where the amount of the establishment's Class 1 equity base funds that are not used to meet the requirement of equity imposed by section 92, paragraph 1er, point (c), of Regulation No. 575/2013, expressed as a percentage of the total amount of exposure to the risk calculated in accordance with section 92, paragraph 3, of that Regulation, is in the second quarter of the overall requirement of Class 1 clean fund cushion;
(c) the factor is 0.4 where the amount of the establishment's Category 1 equity base funds that are not used to meet the requirement of equity imposed by section 92, paragraph 1er, point (c), of Regulation No. 575/2013, expressed as a percentage of the total amount of exposure to the risk calculated in accordance with section 92, paragraph 3, of that Regulation, is in the third quarter of the overall requirement of Class 1 base equity cushion;
(d) the factor is 0.6 where the amount of the establishment's Class 1 equity base funds that are not used to meet the requirement of equity imposed by section 92, paragraph 1er, point c), of Regulation No. 575/2013, expressed as a percentage of the total amount of exposure to the risk calculated in accordance with section 92, paragraph 3, of that Regulation, is in the fourth quarter of the overall requirement of base fund cushion of category 1.
The high and low limits of each of the quartiles of the overall Class 1 base equity cushion requirement are calculated as follows:
low quartile limit =
Global requirement of equity X (Qn - 1)
4
high quartile limit =
Global requirement of clean fund cushion X Qn
4
"Qn" is the relevant quartile number, ranging from 1 to 4.
Section II. - Information
Article 101, paragraph 2 to be provided to the control authority
Art. 2. The information referred to in Article 101, paragraph 2 to be provided to the control authority is as follows:
(a) the amount of equity, subdivided as follows:
(i) Category 1 core funds
(ii) additional Category 1 equity
(iii) Category 2 equity;
(b) the amount of intermediate and end-of-year benefits;
(c) the MMD, calculated under the terms and conditions of section 1er of this Annex;
(d) the distributions to which the credit institution intends to proceed, disaggregated by the following categories:
(i) dividend payments;
(ii) redemption of shares;
(iii) Payments related to components of additional Category 1 equity;
(iv) payment of a variable remuneration or discretionary pension benefits, distinguishing the one resulting from the creation of a new payment obligation, from the one resulting from an obligation of payment born at a time when the credit institution met the overall requirement of a Class 1 equity cushion.
Section III. - Elements included in distributions
one of the constituent elements of Category 1 core funds
Art. 3. For the purposes of Section V of Chapter V, distributions covering one of the components of Class 1 core funds include:
(a) payment of cash dividends;
(b) the award or payment of variable remuneration in the form of shares or other instruments referred to in section 26, paragraph 1, point (a), of Regulation 573/2013, totally or partially released;
(c) the repayment or redemption by an establishment of its own shares or other instruments referred to in section 26, paragraph 1, point (a) of Regulation 573/2013;
(d) the reimbursement of amounts paid to the holders of instruments referred to in section 26, paragraph 1, point (a) of Regulation 573/2013;
(e) distributions of items referred to in (b) to (e) of section 26, paragraph 1 of Regulation 573/2013.
Section IV. - Content of the clean fund conservation plan
Art. 4. The clean fund conservation plan includes:
(a) an estimate of income and expenditure and a forecast balance sheet;
(b) measures to increase the institutional equity (ratios);
(c) a plan with an increase schedule of equity, with a view to meeting the overall requirement for a Class 1 base equity cushion;
(d) any other information that the supervisory authority considers necessary to conduct the assessment under section 105.
Annex VI
SOLVABILITY
NIVEAU D'UN CONGLOMERAT FINANCIER
Article 1er. Regulated companies must have, at the financial conglomerate level, equity at least equal to the solvency requirements calculated at the group level. Clean funds and solvency requirements are calculated according to one of the methods defined in Article 2 of this Annex, in accordance with the principles described in Article 3 of this Annex.
The control authority as coordinator defines the method applied. It may authorize a combination of these methods. It consults with other relevant authorities and with the financial conglomerate concerned on the method to be applied.
Art. 2. Methods of calculation:
§ 1er. Method 1: A consolidated account method
Clean funds and solvency requirements at the group level are calculated on the basis of the consolidated status of the group as mitigated by the consolidated annual or interim accounts. The consolidated situation of the group is the consolidated overall situation of a consolidating company with other companies included in the consolidation scope. Without prejudice to the provisions of Article 3, § 1er of this Annex, the consolidated situation is determined by a similar application of the group's sectoral control regulations.
Group-specific funding elements are those that are recognized as a component of equity by the relevant sectoral regulation of companies included in the consolidated situation.
The solvency requirement at the group level is equal to the sum of solvency requirements for each separate financial sector that is represented in the group. The solvency requirements for each separate financial sector are calculated according to the relevant sectoral regulations. For non-regulated companies in the financial sector that are not included in the above-mentioned calculations of sectoral solvency requirements, the calculation is based on a theoretical solvency requirement.
§ 2. Method 2: Aggregation and Deduction Method
Clean funds and solvency requirements are calculated on the basis of the annual or interim accounts of each of the companies in the group.
Group-specific funds are equal to the sum of the equity of each regulated or non-regulated business that in the financial conglomerate belongs to the financial sector. The group's own financial elements are those that are recognized as a specific component of the relevant sectoral regulation of the companies concerned.
The solvency requirement at the group level is equal to the sum, on the one hand, of solvency requirements for each regulated or non-regulated business, which in the financial conglomerate belongs to the financial sector - calculated according to the relevant sectoral regulations - and, on the other hand, of the carrying value of all the participations in companies of the group. For non-regulated companies in the financial sector that are not included in the above calculations of sectoral solvency requirements, the calculation is done according to a theoretical solvency requirement.
Without prejudice to the provisions of Article 3 § 2 of this Annex in respect of equity deficits in subsidiaries, it shall be taken into account, in the application of this method, the share that the parent company or company having an interest holds in another company of the financial conglomerate. By quota, it is necessary to hear the portion of the capital placed that is held directly or indirectly by that company.
Art. 3. Principles common to both methods
§ 1er. By solvency requirements for businesses belonging to the banking sector and the investment services sector, the solvency requirements must be understood in accordance with:
- to Part III, Part I, Chapter 1, of Regulation No. 575/2013;
- articles 94, 96, 98, 149 and 150 of this Act;
- Articles 458 and 459 of Regulation No. 575/2013; and
- if applicable to the regulations made pursuant to Article 12bis, § 2, of the Law of 22 February 1998, in execution of the preceding points.
By solvency requirements for companies belonging to the insurance sector, the margin of solvency imposed by sections 15 and 91 of the Act of 9 July 1975 on the control of insurance companies must be understood.
§ 2. Deficits of equity in subsidiaries (in the case of unregulated companies, the theoretical deficit is calculated on the basis of the theoretical solvency requirement) are considered for the total amount.
By derogation, the supervisory authority in its capacity as coordinator may authorize that the share of the deficit be taken into account, if it is clearly demonstrated that the responsibility of the parent company in the group is proportionally limited to the portion of the capital that it holds in that undertaking, on the basis of the liability that other shareholders bear in proportion to their contribution to capital and on the basis of their sufficient credit.
If there is no capital link between the companies of a financial conglomerate, the supervisory authority shall determine, after consultation with the other relevant authorities, the share which shall be considered for the calculation of the group's own funds. In this regard, the supervisory authority takes into account the responsibility and risk to which existing relationships between these companies can take place.
§ 3. When calculating funds specific to a financial conglomerate, any artificial creation of equity within a financial conglomerate, such as the repeated consideration of the same equity elements (multiple gearing) and the unsuitable transformation of the nature of the means, will be eliminated. To this end, the relevant principles of sectoral regulation will be applied by analogy.
§ 4. The solvency requirements of companies of a financial conglomerate that are part of a specified financial sector must be covered by equity elements as defined by the relevant sectoral regulations. Additional solvency requirements at the financial conglomerate level must be covered by specific funds recognized in each of the sectoral regulations ("transsectoral equity").
If the sectoral regulation submits the consideration of limitations-specific instruments of funds, they are applied by analogy to the calculation of specific funds at the financial conglomerate level.
When considering specific elements of funds at the financial conglomerate level, the control authority takes into account possible limitations on their availability and compatibility between the various companies of the group, in the light of the purposes of the complementary monitoring of the conglomerate in general and the solvency provisions in particular.
The theoretical solvency requirement for an unregulated business in the financial sector is the solvency requirement to which such a business should meet under the relevant sectoral regulations if it were a regulated business in that specific financial sector. The solvency requirement of a mixed financial company is calculated in accordance with the group's most important financial sector regulations.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 25 April 2014.
PHILIPPE
By the King:
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: 53-3406
Full report: 3 April 2014.
Senate (www.senate.be)
Document: 5-2851
Annales du Senate : April 24, 2014
Document: 5-2841
Project not referred to by the Senate: April 10, 2014.