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20 JANVIER 2014. - An Act to amend the Act of 3 November 2001 on the establishment of the Belgian Investment Corporation for Developing Countries and to amend the Act of 21 December 1998 establishing the "Belgian Technical Cooperation" in the form of a public law corporation (1)
PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. In article 2, paragraph 2, of the law of 3 November 2001 relating to the creation of the Belgian Society of Investment for the Developing Countries and amending the law of 21 December 1998 establishing the "Belgian technical cooperation" in the form of a society of public law, the words "or in the field of the social economy" are inserted between the words "local companies" and "in the developing countries" and the words "so-called "societies"
Art. 3. In the same law, an article 2bis is inserted as follows:
"Art. 2bis. § 1er
. The board of directors is composed of twelve members, including its president.
§ 2. The Board of Directors has as many French-speaking and Dutch-speaking members.
§ 2. The Board of Directors has a maximum of two thirds of members of the same sex.
§ 3. Members of the Board of Directors shall be appointed on the proposal of the Minister with Development Cooperation in his or her powers, by a Royal Decree deliberated in the Council of Ministers, on the basis of their knowledge of international cooperation or management.
§ 4. A representative of the Directorate General of Development Cooperation and Humanitarian Aid of the SPF Foreign Affairs, Foreign Trade and Development Cooperation, appointed by the Minister, with Development Cooperation in his or her responsibilities, is invited to the meetings of the Board of Directors. He does not have the right to vote."
Art. 4. Article 3, § 1er
the same law shall be replaced by the following:
"BIO's social purpose is to invest, directly or indirectly, in the development of micro, small and medium-sized enterprises (SMEs) and enterprises of the social economy located in developing countries in the interest of the economic and social progress of these countries while ensuring an adequate return. BIO also has a social purpose to invest in energy projects and projects that contribute to the fight against climate change in developing countries, as well as in enterprises whose purpose is to provide basic services to the population in developing countries.".
Art. 5. Article 3, § 1er
Paragraph 5, fifth of the Act, inserted by the Act of 20 July 2005, is replaced by the following:
"- grant subsidies to finance programs to support the development of BIO portfolio companies or companies that may benefit from financing by BIO other than in the form of a subsidy. The award of these subsidies is based on a convention between BIO and the recipient and is linked to specific criteria, particularly at the recipient level:
(i) portfolio companies. The portfolio corporation is a corporation that has received funding from BIO in any form, other than in the form of a subsidy;
(ii) intermediary structures directed exclusively to local enterprises, in this case commercial or cooperative investment banks, micro-financing companies and institutions, investment companies and funds, leasing companies and guarantee and insurance companies located in developing countries that finance the activities and investments of local micro, small and medium-sized enterprises;
(iii) Micro, small and medium-sized enterprises in developing countries that meet the following criteria:
(a) the value of MEP assets does not exceed 43 million euros;
b) the turnover of the MEP does not exceed 50 million euros.
The funding of BIO is up to 50% of the cost of assistance.
The amount of the subsidy cannot exceed one hundred thousand euros per project.
The subsidy agreement includes the description of activities, funding terms, reporting obligations, including justification for the use of means, the terms and conditions for reimbursement of the subsidy if the recipients remain in default and the possibilities for control by BIO. BIO justifies the use of subsidies by transmitting annually to the Minister with Development Cooperation in his responsibilities a report containing the following data:
- an assessment of activities undertaken;
- a financial balance;
- an evaluation of the results achieved;
- possible modifications of the strategy followed in compliance with the management contract.".
Art. 6. Article 3, § 1er
the same law is supplemented by paragraph 6, which reads as follows:
"Do not come into account for BIO interventions (corporation of companies, capital participations, loans, subsidies) companies and investment funds as well as companies:
- that are established in any State referred to in Article 307, § 1er
(a) or (b) of the Income Tax Code 1992;
- which are established in a State, other than that where the final beneficiary of the BIO intervention sits, which is listed in the list of States that refuse to negotiate and sign an agreement that provides, in accordance with the standards of the Organisation for Economic Co-operation and Development (OECD), the automatic exchange of tax and banking information with Belgium from 2015. This list is defined by a royal decree deliberated in the Council of Ministers. ".
Art. 7. Article 3, § 2, paragraph 1, of the Act is replaced by the following:
"§2. BIO's interventions are directed exclusively to companies in developing countries, belonging to the following categories, as defined by the OECD Development Assistance Committee:
(i) Least developed countries;
(ii) low-income countries;
(iii) middle-income countries, lower;
(iv) middle-income countries, upper. ".
Art. 8. Article 3, § 3, paragraph 2, of the Act is repealed.
Art. 9. In the same law, an article 4bis is inserted, as follows:
"Art. 4bis. § 1er
. The special rules and conditions according to which BIO implements its social object are decided in a management contract between the Belgian State and BIO.
§ 2. The management contract shall not lessen the following:
1° the political framework;
2° the missions and values of BIO;
3° the priority strategic axes of the BIO investment policy in terms of geographical, sectoral and thematic concentration, as well as investment modalities and funding criteria;
4° the financing modalities of BIO, both in the form of contribution to the equity and in the form of subsidies to the general budget of the expenses of the Federal State;
5° the specific and measurable objectives to be achieved by BIO;
6° the modalities of cooperation and development of synergies between BIO and other actors of the Belgian Development Cooperation;
7° the procedures and objective parameters of the annual evaluation of the management contract;
8° the financial penalties for non-compliance by a part of its commitments resulting from the management contract;
9° the internal control obligations.
§ 3. Any express resolute clause in the management contract is deemed unwritten.
Section 1184 of the Civil Code is not applicable to the management contract. The party to which an obligation under the management contract is not performed may only force the other party to perform the obligation and, where applicable, seek damages, without prejudice to the application of any sanction provided in the management contract.".
Art. 10. In the same Act, an article 4ter is inserted, as follows:
"Art. 4ter. § 1er
. During the negotiation and conclusion of the management contract, the federal state is represented by the Minister with Development Cooperation in his responsibilities.
§ 2. When negotiating the management contract, BIO is represented in accordance with the law and the statutes. The management contract is subject to the competent body of BIO, which is governed by the law and the statutes.
§ 3. The management contract comes into force only after its approval by the King, by order deliberately in the Council of Ministers, on the date fixed by that order. ".
Art. 11. In the same Act, an article 4quater is inserted as follows:
"Art. 4quater. § 1er
. The management contract is evaluated each year and, if necessary, adapted to changes in the legislation applicable to BIO and to developments in the sector in which BIO evolves according to a procedure and objective parameters provided for in the management contract.
§ 2. Any modification of the management contract not referred to in § 1er
proposed by either party or by both parties is made in accordance with Article 4ter.".
Art. 12. In the same law, an article 4quinquies is inserted as follows:
"Art. 4quinquies. § 1er
. The management contract is concluded for a period of five years.
§ 2. At the latest six months before the expiry of a management contract, BIO submits to the Minister with Development Cooperation in its responsibilities a new management contract.
If, on the expiry of a management contract, a new management contract has not entered into force, the contract is extended in full right until a new management contract comes into force. This extension is issued to the Belgian Monitor by the Minister with Development Cooperation in his responsibilities.
If a new management contract has not entered into force one year after the extension referred to in paragraph 2, the King may, by order deliberately in the Council of Ministers, set provisional rules concerning the substances referred to in Article 4ter, § 2. These interim rules are valid as a new management contract and are applicable until the entry into force of a new management contract, entered into in accordance with section 4ter. ".
Art. 13. In the same law, an article 4sexies is inserted as follows:
"Art. 4sexies. Orders approving a management contract or its adaptation, as well as orders setting the provisional rules, are issued to the Belgian Monitor.
The provisions of the management contract are published in annexes to the Royal Decree, with the exception of those covered by an obligation of secrecy established by or under the law or whose publication would be contrary to public order.".
Art. 14. In Article 5, paragraph 2, of the Act, the words "the criteria set out in Article 4 of the Law of 25 May 1999 on Belgian International Cooperation" are replaced by the words "the criteria defined by the Committee for Development Assistance of the Organisation for Economic Co-operation and Development referred to in Article 32 of the Law of 19 March 2013 on Belgian Development Cooperation.".
Art. 15. Section 8 of the Act is replaced by the following:
Article 8. § 1er
. The interventions of BIO are part of the general objective of the Belgian Development Cooperation, which is the sustainable human development referred to in Article 3 of the Act of 19 March 2013 on Belgian Development Cooperation.
§ 2. The interventions of BIO must also meet the criteria defined by the Development Assistance Committee of the Organisation for Economic Co-operation and Development referred to in Article 32 of the Belgian Development Cooperation Act of 19 March 2013, namely relevance, efficiency, sustainability, impact and sustainability. ".
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 20 January 2014.
By the King:
Minister of Development Cooperation,
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
(1)House of Representatives:
Doc 53-3062 (2013/2014):
004: Text corrected by commission.
Full report: 5 December 2013.
Doc 5-2387 - (2013/2014):
Project not referred to by the Senate.